PPP (a pseudonym) v DDA (a pseudonym)
[2023] VSC 494
•23 August 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04527
| PPP (a pseudonym) | Plaintiff |
| v | |
| DDA (a pseudonym) & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2023 |
DATE OF JUDGMENT: | 23 August 2023 |
CASE MAY BE CITED AS: | PPP (a pseudonym) v DDA (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 494 (Second Revision 30 August 2023) |
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APPEAL – Appeal from judicial registrar – Directions order – Where interim family violence intervention orders are in place between the plaintiff and first defendant – Where plaintiff has applied for a stay of intervention order – Whether on the balance of convenience an order in the form of an injunction should be made against the fourth and fifth defendant – Confidentiality of affidavits – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Litigant in person | N/A |
| For the First Defendant | No appearance | N/A |
| For the Second Defendant | No appearance | N/A |
| For the Third Defendant | No appearance | N/A |
| For the Fourth Defendant | Mr A Imrie | Victorian Government Solicitor |
| For the Fifth Defendant | No appearance | Magistrates’ Court of Victoria |
| For the Sixth Defendant | Ms S Molyneux | Corrs Chambers Westgarth |
TABLE OF CONTENTS
A. Introduction.................................................................................................................................. 1
B. Background.................................................................................................................................... 1
C. The procedural steps for the hearing of the appeal to this Court....................................... 5
D. The State of Victoria’s summons.............................................................................................. 7
E. The hearing of the appeal on 18 August 2023......................................................................... 7
E.1General.................................................................................................................................... 7
E.2The first to third defendants’ summons............................................................................. 8
E.3The State of Victoria’s summons......................................................................................... 9
E.4The application for a stay of the interim intervention order......................................... 10
E.4.1The merits of PPP’s proposed arguments........................................................... 13
E.4.1.1The discussions in PPP’s absence......................................................... 13
E.4.1.2DDA’s affidavit....................................................................................... 14
E.4.1.3PPP’s 16 August 2022 email communication...................................... 15
E.4.1.4Other affidavit material......................................................................... 18
E.4.1.5The application to reopen...................................................................... 19
E.4.1.6 Conclusions.............................................................................................. 20
E.4.2The balance of convenience................................................................................... 20
E.4.3Conclusion on the application for an injunction................................................ 21
E.5The maintenance of confidentiality of the affidavits...................................................... 22
F. The affidavits sworn by the first, second and third defendants....................................... 23
G. Disposition and orders............................................................................................................. 23
HIS HONOUR:
A. Introduction
This is an appeal by PPP,[1] the plaintiff, against some directions made by Baker JR on 27 January 2023 in a proceeding brought by PPP against a woman who used to work with him, her two parents, the State of Victoria, the Magistrates’ Court of Victoria, and the Victorian Legal Services Board (‘the Board’).
[1]Section 166 of the Family Violence Protection Act 2008 (Vic) provides that a person must not publish a report of a proceeding that may lead to the identification of any person involved in the proceeding. Accordingly, the Court made a pseudonym order at the judgment hearing to protect the anonymity of the parties. Section 166(2)(b) provides that a person must not publish any particulars likely to lead to the identification of any person involved in the proceeding. Accordingly, these reasons use pseudonyms for persons involved in the proceeding who are not parties but may, by their identification, lead to the identification of the parties the subject of the pseudonym order. Those persons are referred to as AAA, BBB, CCC and EEE.
In order to understand the issues that arose on the hearing of the appeal, it is necessary first to give some information about the background to the proceeding and to the appeal.
B. Background
DDA, the first defendant, was hired by PPP to work for a law firm operated by a company of which he was the ultimate beneficial owner. She was about 23 years old when she started and had not completed her legal training. They commenced a personal relationship soon after. Problems arose. She accused PPP of mistreating her. On 20 July 2022, PPP was arrested and on 21 July 2022, the police issued a ‘family violence safety notice’ under the Family Violence Protection Act 2008 against PPP.[2] On 12 September 2022, the Magistrates’ Court of Victoria, the fifth defendant, made an interim intervention order against PPP under the same Act. DDA was the person protected by the order. Her mother is the second defendant, and her father is the third defendant in this proceeding. PPP has since obtained his own interim intervention order against DDA. So, at present, they are precluded, among other things, from harassing or contacting each other.
[2]Family Violence Protection Act 2008 (Vic) s 26.
On 7 November 2022, PPP filed in this Court a document headed ‘originating motion for judicial review’. The relief it seeks is extensive. Under the heading ‘Judicial Review and Declaratory Relief’, it seeks that the court ‘determine and declare’ that the three police officers involved in his arrest trespassed on PPP’s premises and that PPP was unlawfully arrested and subject to false imprisonment. It asks that the Court ‘determine and declare’ that the State of Victoria, the fourth defendant, committed multiple instances of assault, battery, intentional infliction of mental harm, intentional interruption in business operations and breach of confidence, made ‘multiple threats of lawful acts’, ‘committed multiple instances of assault’, and ‘intentionally inflicted mental harm/distress’. It asks the Court to ‘determine and declare’ that the complaints made to the police by the defendants, that led to the making of the interim intervention order, were fabricated and made to prevent the course of justice and as part of a ‘conspiracy to effect public mischief’. He asks the Court to ‘determine and declare’ that some of the procedural steps taken by the police officers that resulted in the interim intervention order were made in bad faith, as part of a conspiracy to effect public mischief, and was an instance of corrupt conduct as per the definition in the Independent Broad-Based Anti-Corruption Commission Act 2011. He asks the court to ‘determine and declare’ that the Magistrates’ Court proceeding had been pursued by the State of Victoria in conspiracy with one of the defendants with a view to abusing the courts’ processes and as part of an unlawful conspiracy. He asks the Court to ‘determine and declare’ that the Victorian Legal Services Board’s (the sixth defendant’s) involvement in the Magistrates’ Court proceeding was ‘tantamount to interference in the judicial process’, aimed at denying to him a fair hearing, pursuant to an unlawful purpose conspiracy, and within the definition of corrupt conduct.
The originating motion also, in para 13, asks the Court ‘to determine and declare’ that:
13.The [interim intervention order] made by Magistrate Gattuso on 12 September 2022 … was made in contravention of the statutory provisions listed under Part 4 of the [Family Violence Protection Act 2008], the Corporations Act 2001 (Cth)…, the essential requirements for the making of judicial decisions mandated by Chapter III of the Commonwealth of Australia Constitution Act ... as well as universally recognised principles applicable to the conduct of fair hearings and was:
13.1 Inaccurately documented;
13.2 Unlawful;
13.3 A nullity; and
13.4 An exercise affected by bad faith.
The State of Victoria is, I assume, a defendant because the conduct of the police officers is impugned in the proceeding.
Then, under the heading ‘Equitable Relief’, PPP seeks that the Court orders the State of Victoria to release all documents relating to complaints made by the first defendant against PPP and any actions or communications between the State of Victoria and Victoria Police, and other documents. He also seeks that the Court order that the restitution be provided to him.
The originating motion then sets out what are said to be the grounds relied upon. The grounds are largely contentions that PPP has provided ‘unequivocal evidence’ of the misbehaviour alleged. However, he also contends that he ‘did not receive a fair hearing on 12 September 2022’, that the magistrate had ‘prejudged the matter’ and was biased against him, and ‘manifested Wednesbury unreasonableness’.
Then, at the conclusion of the originating motion, PPP indicates that he is seeking judicial review of the State of Victoria’s decisions in effecting: the ‘unlawful arrest’ on 20 July 2022; the ‘false imprisonments’ on 20 and 21 July 2022; the family violence safety notice ‘Application’ on 20 July 2022; and the ‘Notice’ on 21 July 2022; the police ‘blackmail’ between 20 July and 7 September 2022; the police ‘assaults’ between 20 July and 7 September 22; and the ‘infliction of harm’ between 20 July and 7 September 2022.
The following summonses were filed:
(a) On 28 November 2022, PPP filed a summons in which he sought directions as if he had made an application for summary judgment for many of the orders in the proceeding. No such application has been made;
(b) On 24 January 2023, DDA and her parents, the first to third defendants, filed a summons in which they seek to have the proceeding dismissed on the grounds that it is scandalous, frivolous or vexatious or otherwise an abuse of process, alternatively for summary judgment. They also sought an order that an affidavit sworn by AAA dated 6 November 2022 be removed from the Court’s file or be struck out; and
(c) On 25 January 2023, PPP filed a second summons in similar form to his 29 November 2022 summons, save that it also seeks leave to file an amended originating motion, and also for an order that the 12 September 2022 interim intervention order be stayed pending the determination of his application.
The application to remove the affidavit from the Court’s file concerns information that was on DDA’s personal phone. PPP obtained possession of that phone. He contends that he did so lawfully. DDA contends that he did so by threatening her with legal proceedings. Once he had possession of the phone, PPP was able to extract from it a number of deeply personal and private communications that DDA had made on social media or like platforms. Where they were in Turkish, he had them translated. He, or people associated with him, then filed affidavits in which those communications were exhibited or reproduced. Having included DDA’s parents as defendants, the affidavits were served on them. No person could have prepared, filed and served those affidavits without appreciating that they would cause acute embarrassment and distress to DDA. PPP contends that the communications are relevant to the issues that arise in his proceeding. When asked why he had added DDA’s parents to the proceeding, when they were not parties to the intervention order, he contended that they fraudulently made false allegations against him and otherwise wrongly participated in DDA’s proceedings. His intention in this proceeding is to obtain declarations that they have acted fraudulently, and then to rely on that finding, as an issue estoppel, in subsequent proceedings in which he will seek monetary relief from them. Similarly, his intention in this proceeding is to obtain declarations that the Board or people associated with it acted fraudulently or maliciously, and then to use that as an issue estoppel in a damages claim against them for damages for misfeasance in public office.
C. The procedural steps for the hearing of the appeal to this Court
On 29 November 2022, Daly AsJ referred PPP’s application for a stay of the interim intervention order to Baker JR for hearing and determination.
The matter came before Baker JR on 27 January 2023. PPP says that he intended to prosecute his application for a stay of the interim intervention order on that day, but formed the view that Baker JR was not acting fairly in his disposition of the matter. Accordingly, PPP asked that the application for a stay of the interim intervention order be adjourned to a later date. The issues that led PPP to form an unfavourable view of Baker JR’s handling of the matter were Baker JR’s decision to list for determination the application for summary dismissal brought by DDA and her parents, and Baker JR’s indication that he would make orders preventing members of the public from accessing the affidavits that set out DDA’s private communications obtained from her personal phone. On 27 January 2023, Baker JR ordered that:
(a) Two of the affidavits filed by PPP remain confidential and not be inspected by non-parties until 5.00pm on 1 February 2023;
(b) PPP’s application for a stay of the interim intervention order be listed for hearing on 1 February 2023;
(c) PPP’s application for leave to amend his originating motion, and the first three defendants’ application for summary determination, be listed for hearing on a date not before 27 February 2023; and
(d) The balance of the PPP’s summonses be heard on a date to be fixed following the determination of the above applications.
Baker JR also made orders providing for the exchange of material relating to the above applications.
On 31 January 2023, at the request of PPP, the hearing of his application for a stay of the interim intervention order was further adjourned to a date to be fixed. The operation of the order relating to the affidavits was extended until the date of the next hearing.
On 10 February 2023, DDA and her parents indicated that they would submit to the orders of the Court and that, in circumstances where the State of Victoria had filed an appearance and were, they said, ‘the proper contradictor’, they did not propose to substantively participate in the proceeding.
On 11 February 2023, PPP filed a notice of appeal against the orders made by Baker JR on 27 January 2023. There are four areas of grounds of appeal. The first is that Baker JR ‘failed to uphold [PPP’s] rights and/or the courts duties and/or the obligations of the other parties and their legal representatives, arising from’ a number of matters (that I summarise further below). The second is that Baker JR created a reasonable apprehension that he may have been biased or to have prejudged matters before him and may not ‘perform all its obligations judiciously or safeguard all of [PPP’s] rights’. The third is that Baker JR ‘manifested Wednesbury Unreasonableness in his adjudication of the matters before the court’. And the fourth is that Baker JR’s decisions ‘had been affected by the equitable fraud perpetrated by the defendants and their legal representatives’.
The matters referred to in PPP’s first ground of appeal that give rise to the rights or obligations that it is said Baker JR failed to uphold include: The ‘hypothesis of the rule of law implied through’ Chapter III of the Constitution, various articles in the International Covenant on Civil and Political Rights, various sections of the Charter of Human Rights and Responsibilities Act 2006, the Civil Procedure Act 2010, the Model Litigant Guidelines adopted by the Victorian Government, the Legal Profession Uniform Law and the solicitor and barrister conduct rules, the Supreme Court (General Civil Procedure) Rules 2015, and common law principles necessitating procedural fairness, the ‘proper exercise of judicial power and discretion’, the need to consider all relevant and only relevant matters, the ‘duty of the Court to satisfy the legitimate expectations of all parties to a proceeding’, and ‘the exercise of due diligence in the course of statutory interpretation’.
The orders sought included that the court determine and declare that the interim intervention order made on 12 September 2022 ‘is a nullity’, and that the court dismiss any summary judgment application is filed by the defendants for lack of merit.
On 29 June 2023, Ginnane J fixed the notice of appeal for hearing on 18 August 2023 and ordered PPP to file and serve any affidavit material on which he sought to rely on the appeal by 7 July 2023, the defendants to file and serve any affidavit on which they sought to rely by 21 July 2023, the plaintiff to file and serve any written submission by 28 July 2023, and the defendants to file and serve any written submission by 4 August 2023. The order required that the affidavits not exceed 20 pages and 80 pages in exhibits, and the submissions not exceed 15 pages. Ginnane J’s orders also provided that if any party wished to apply to rely on written submissions of more than 15 pages, or to file and serve affidavits of greater length, they may make such an application at the hearing on 18 August 2023.
D. The State of Victoria’s summons
On 17 August 2023, that is, shortly before the hearing of this appeal, the State of Victoria, the fourth defendant, filed a summons seeking summary judgment, alternatively that the originating motion be stayed or struck out, alternatively that the proceeding be stayed until the proceeding in the Magistrates’ Court is heard, and that various affidavits relied on by the plaintiffs be removed from the file or struck out. The summons was returnable on the same date as the hearing of the appeal.
E. The hearing of the appeal on 18 August 2023
E.1 General
The appeal is an appeal in the nature of a hearing do novo.[3] I am, therefore put in a position of rehearing the directions made by Baker JR.
[3]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 84.05(4).
As the above makes clear, Baker JR has not made any substantive determination of any of the issues that could be said to arise in the originating motion: the orders he made were procedural only. He ordered, in substance, that the first issue to be determined was PPP’s application for a stay of the interim intervention order, the second was the first three defendants’ application for summary dismissal, and the third was then the balance of PPP’s proceeding (if it were not summarily dismissed).
PPP did not provide a submission of no more than 15 pages by 28 July 2023 in accordance with the directions made by Ginnane J. Instead, on 17 August 2023, the day before the hearing of the appeal, he filed, and sought to rely on, a 50 page submission. He contended that the orders gave him a choice of either filing a 15 page submission by 28 July 2023, or filing a submission of whatever length he wished at any later date and seeking leave to rely on it. I do not accept that PPP’s interpretation of Ginnane J’s orders was reasonably open. Nonetheless, I granted PPP leave to rely on the written submission. The submission was 50 pages of legal principles. As is often the case, the difficulty is not so much in the expression of principle but is instead in the application of the principles to the circumstances. PPP did not file a submission that set out the argument that he wished to present at the hearing of the appeal. He told me that he had not had time to do so. The need for proper, concise submissions was clear because PPP had previously filed, in the proceeding (that is, not specifically in relation to the appeal), affidavits exhibiting thousands of pages of documents. I allowed him to present his argument orally.
PPP did not take me to a transcript of what transpired before Baker JR or other evidence of what occurred at the 27 January 2023 hearing. There is no reason to infer from the form of the orders made that Baker JR acted improperly in making the orders he did. Accordingly, I do not accept PPP’s contentions, made in his notice of appeal and from the bar table, that he was denied procedural fairness or that Baker JR was biased in his disposition of the matters before him.
E.2 The first to third defendants’ summons
As noted above, on 10 February 2023, which was after Baker JR’s orders but before the commencement of the appeal against them, the first to third defendants informed the Court that they did not wish to participate substantively in the proceeding on the basis that the State of Victoria was the ‘proper contradictor’. Consistently with that position, they did not appear on 18 August 2023. Accordingly, no occasion arose for me to make any orders in relation to the hearing of their summons.
E.3 The State of Victoria’s summons
Because the State of Victoria’s summons was filed only recently, the only issue that fell for consideration was whether or when the State of Victoria’s summons should be heard. PPP submitted, as I understood it, that an application for summary dismissal should not be heard because:
(a) There was no or insufficient affidavit evidence filed with the summons to allow a conclusion other than that the application was doomed to fail;
(b) Any application for summary judgment in this proceeding had no prospect of success; and
(c) Legal principle established that applications for summary judgment or striking out should not be, or should only rarely be, determined because they are means whereby the Court is distracted from determining the matters of principle that arise in the proceeding.
The first submission is without merit. There is no binding requirement that all the evidence upon which a party intends to rely must be filed at the time that the summons is issued. It is common for directions to be made for the filing of material in support of, and in opposition to, an application made by summons. Arguments may also legitimately be made by reference to the way that a claim has been presented.
The second submission is without merit to the extent that it suggests that a decision may be made, now, in advance of the hearing of an application for summary dismissal, that such an application would inevitably fail. PPP’s contention is that the DDA has fabricated evidence against him. He points to surrounding circumstances, such as transcripts of oral communications between them and emails that, on one view, are inconsistent with her having been mistreated by him and indicates that she was having other problems. He contends, as I understand it, that she fabricated evidence in order to prevent him, or his company, from suing her for having breached obligations to the company including by providing information to the Board. However, I am not in a position, now, to conclude whether or not DDA’s evidence was fabricated, or, in my view, to conclude that there is no prospect that an application for summary dismissal may succeed. I note, too, that it may be that an application for summary dismissal may succeed in respect of some only of PPP’s claims.
The third submission is also without merit to the extent that it suggests that there is some form of binding principle that controls the outcome in this case that summary dismissal applications may not be heard. The Court has control over its own procedures. There will be cases where an application for summary dismissal of a proceeding ought not to be heard because it would likely result in wasted time and cause an unfair delay and the appropriate course is simply to proceed to the final determination of the proceeding. There are cases where this will not be so. The Court is required to facilitate the just, quick and cost-effective resolution of the real issues in dispute.[4] Sometimes, this may allow for the hearing of an application for summary dismissal. This may be the case if, for example, the trial itself would likely be long and complicated and expensive.
[4]Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303, 321-323 [51]-[57] (French CJ, Kiefel, Bell, Gageler and Keane JJ); Civil Procedure Act 2010 (Vic) s 1(c).
In my view, it is appropriate in this case that the State of Victoria’s summons be heard and determined prior to this matter going to trial. As the recitation of the various facts and claims made and relief sought in the originating motion indicates, a full hearing of the issues would likely be long and costly. There is room for argument about the scope of the remedies that are being sought. There is merit, in my view, in having a determination, prior to embarking on a full trial, on whether the claims are properly arguable. It may be that some are and some aren’t, in which case a trial may not be avoided but may be reduced in scope.
E.4 The application for a stay of the interim intervention order.
PPP contended that because this was a hearing de novo, I ought to hear his application for a stay of the interim intervention order. He contended this notwithstanding that Baker JR, at PPP’s request, from whose orders PPP is appealing, did not deal with that application. In those circumstances, I doubt that I am obliged to deal with PPP’s application for a stay of the interim intervention order. I nonetheless indicated that I would hear that application.
As noted above, the interim intervention order was made by the Magistrates’ Court on 12 September 2022. In his oral argument, PPP framed his application as an application for an injunction to restrain the Magistrates’ Court from enforcing the order. When it was pointed out that in ordinary circumstances a breach of the Order is dealt with by the police bringing a charge, he expanded the application, in a sense to be for an injunction enjoining the police or State of Victoria from bringing charges for its breach. He framed his application in this way, as I understood it, in part because of a concern that framing it in any other way may be inconsistent with this underlying argument that the interim intervention order is a nullity in any event.
Assuming that such an injunction may be made, PPP has to establish that there is a serious question to be tried, that damages will not be an adequate remedy, and that the balance of convenience favours the making of the order.[5] It is not, in reality, a series of separate tests. Rather, these factors are considered together in order to determine whether the interests of justice favour granting the relief sought; an assessment must be made of which course carries the least risk of injustice.[6] In terms of the Supreme Court Act 1986, the question is whether it is ‘just and convenient’ to make the order.[7] I am prepared to assume that damages would not be an adequate remedy in this case.
[5]See, eg, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 68-69 [19] (Gleeson CJ and Crennan J), 81-82 [65], 83-84 [71] (Gummow and Hayne JJ).
[6]Bradto Pty Ltd v State of Victoria; Tymbrook Pty Ltd v State of Victoria (2006) 15 VR 65, 73 [35] (Maxwell P and Charles JA).
[7]Supreme Court Act 1986 (Vic) s 37(1). I am prepared to assume, in PPP’s favour, that the principles that apply to the making of an order that is intended to maintain the status quo pending trial apply equally to an application that is intended to vary the status quo pending trial, but cf Maher v Commonwealth Bank of Australia [2008] VSCA 122, [20] (Redlich and Dodds-Streeton JJA).
It is worth noting that:
(a) PPP’s application to set aside the interim intervention order is made in the Court’s supervisory jurisdiction whereby it reviews the exercise of statutory power for its lawfulness.[8] Accordingly, when the issue is finally determined PPP will be required to establish that the decision of the Magistrate to make the interim intervention order was unlawful. To the extent that the Magistrates’ decision involved the exercise of a discretion or the making of a value judgment, PPP will have to establish that there was legal error in the exercise of discretion or the making of a value judgment or that the discretion was exercised in a manner that was legally unreasonable.
(b) The interim intervention order was itself an interim order. Because a family violence safety notice had been issued,[9] the Magistrate was entitled to make an interim intervention order if satisfied that there were no circumstances that would justify discontinuing the protection of the person until a final decision about the application, or if satisfied that an interim order was necessary to ensure the safety of the affected person pending a final decision about the application.[10]
[8]Because the orders is not a final order, there is no statutory appeal right – cf Magistrates Court Act 1989 (Vic) s 109.
[9]Family Violence Protection Act 2008 (Vic) s 26.
[10]Ibid s 53(1)(a), (c).
In considering whether there should be an injunction, I am not required to make final findings on the merits of PPP’s arguments. All I can do is make general assessments of my impression, now, of their strength, conscious that I have not heard all the evidence or arguments that might be presented. For this reason, any observations I make on those arguments are provisional and should not be taken to mean that, after fuller argument when the claims are finally determined, different conclusion may not be drawn. The reasons below must be read with that in mind.
PPP’s complaints about the Magistrates’ Court hearing focused on the fact that there had been discussions in the morning in the case when he was not present, that DDA had provided an affidavit that had not been served on him, and that DDA had provided the Court with an email from PPP that was not copied to him and did not include the full email chain. PPP has produced a transcript prepared by voice recognition software from an audio recording obtained by him that AAA says she has verified. I am prepared to accept, for the purpose of this application, that the transcript is accurate.
E.4.1 The merits of PPP’s proposed arguments
E.4.1.1 The discussions in PPP’s absence
The interim intervention order was not made ex parte. It was listed for hearing on 12 September 2022, I assume at 10am or thereabouts. PPP was given notice that the application was to be made at that time. PPP did not turn up to Court to oppose the application being made at the time that it was listed for hearing. He had emailed the Court that to advise that he would not be at the Court until the afternoon of the day on which it was listed for hearing. Although PPP first told me that ‘it was agreed that the Court would hear the matter in the afternoon part of the day, not in the morning’, PPP later accepted, when asked specifically, that the Court had not agreed in advance that it would stand the matter down, or not call the matter, until the afternoon. The matter was called on in the morning and there was a general discussion in open Court between the Magistrate and the police officer who had the carriage of the application. It was not what PPP described as a ‘private conversation’ between them. Ultimately, because PPP was not present, the matter was stood down until that afternoon. PPP did appear in the afternoon, and presented argument against the application being made, which arguments the Magistrate did not accept.
I do not consider that the discussion had in PPP’s absence resulted in his having an unfair hearing. A litigant is not able simply to inform the Court that he or she will not be present when a matter is called on and thereby require the Court not to hear the matter at the scheduled time. [11] PPP was fortunate that the Court accommodated his convenience and reconvened in the afternoon when he was available.
[11]I interpolate the that Magistrates’ Court would have been entitled to hear the application on the morning of 12 September 2022: a party is not entitled to enforce an adjournment of a listed proceeding simply by sending a communication to the Court saying that they are unable to be there at the listed time.
PPP contended that the transcript of the discussion in his absence revealed that the Magistrate made the decision for reasons of which he was not made aware and that the Magistrate had, by reason of the morning discussion, ‘already made up his mind’. Even assuming that such an argument would be available in circumstances where the discussion in the morning took place in open Court when the matter was called on, I do not consider that this is right. There was a full discussion with PPP in the afternoon, and I have no reason to doubt that the Magistrate made the decision he did as a result of what was discussed between him and PPP at that time. This is so even though PPP was not aware that there had been those preliminary discussions.
E.4.1.2 DDA’s affidavit
The Magistrate informed PPP that DDA had provided an affidavit as well as her police statement. PPP says, and I accept, that although he had DDA’s police statement, he was not provided with a copy of her affidavit. Clearly, DDA’s affidavit should have been served on PPP. PPP told the Magistrate that he would need to ‘get the affidavit and be given an opportunity to file a responsive affidavit’. However the argument then proceeded before the Magistrate and PPP did not apply to have the matter stood down or adjourned so that he could be provided with a copy of the affidavit.
As the Magistrate noted, this was not the contested hearing at which matters of credibility might have to be determined but concerned only whether an interim order should be made pending that contested hearing. The issue for me is the extent to which the failure to serve the affidavit of PPP means that he is more likely to succeed, in due course, is having the making of the interim order quashed, so that I can assess, now, whether to make the injunction that PPP seeks preventing it from having force in the meantime. That requires a consideration of the extent to which the failure to serve the affidavit was relevant to the Magistrate’s determination, or, put another way, the prospect that a different result might have been reached if PPP had been served with the affidavit.
It is to be recalled that PPP did have a copy of DDA’s police statement. PPP, in answer to my question, told me that he has since been provided with a copy of the affidavit that was before the Magistrate. PPP did not take me to the affidavit or otherwise identify the extent to which it added to the material that was in DDA’s police statement, or indicate how he would have approached the matter differently if he had been provided with the affidavit. Accordingly, he did not establish that the failure to serve the affidavit made any difference to the outcome. Further, notwithstanding that PPP did not take me to the affidavit or the police statement, they were among the 4,217 pages of the exhibits to an affidavit filed by him affirmed by AAA on 6 November 2022. The police statement is 60 paragraphs long and is in the form of a statutory declaration signed by DDA. In my view, the allegations made against PPP in the affidavit do not differ in any substantial way from the allegations made against PPP in the police statement.
Accordingly, PPP has not established that his not having the affidavit at the time of the hearing means that the order made at that hearing will likely be set aside.
E.4.1.3 PPP’s 16 August 2022 email communication
The Magistrates’ Court had before it an email sent from PPP to DDA on 16 August 2022 that was critical of her conduct. This email was sent after the application for the intervention order had been made. Again, DDA (or the police officer handling the matter) ought to have copied in PPP with the communication made to the Court. However, the transcript reveals that:
(a) PPP had sent to the Court, that morning, a number of emails, what the Magistrate described as ‘slabs of transcript’, and some photos of DDA drinking. PPP had previously sent through approximately 300 pages of material;
(b) The Magistrate raised the contents of the 16 August 2022 email with PPP;
(c) PPP knew of the email. He made submissions in relation to it – that it did not contain any threats and that it was sent in good faith and out of concern for DDA. He contended that his email to her had to be read with DDA’s response, which DDA had not provided to the Court; and
(d) In the course of addressing the email, PPP opened the email on his computer. The Magistrate invited him to send the response on which PPP sought to rely to the Magistrate, which PPP did. The Magistrate then printed it out. In addition, PPP read out ‘the passage that he was wanting to rely upon’.
In light of the above, the argument that PPP was denied procedural fairness, or that any failure was material to the result, on the basis of the material currently at hand, is not strong.
Further, I allowed PPP to provide the email chain to me after the hearing. He did so. It is true that DDA’s response ended by saying, at the end, that despite what he had done to her, she still wanted him to be very happy and that she wished ‘the absolute best’ for him and that she appreciated his efforts to offer her ‘support services’. However, DDA’s response to PPP’s email also included allegations that he had ‘scared’ her and ‘made’ her stay at the firm, that he had refused to return her personal property, that he owed her two months’ wages, that he ‘verbally abused her’, publicly embarrassed her, slapped her ‘many times’ causing her pain and humiliation, used text message exchanges as ‘leverage’ over her, and ‘threatened her with lawsuits’. It contained an statements by her that:
I am still scared that if the safety notice were to lift, that you might find me and hit me. I leave the house less now or in the company of someone else generally.
And:
I am severely affected by what you did to me and because of the way in which the events transpired. I am severely depressed and the doctors confirm I am displaying signs of PTSD.
In my view, there is nothing in PPP’s argument that he is likely to be able to have the interim order quashed because DDA did not initially provide the full email chain.
I also granted PPP leave to provide me with an email exchange between Mr Olney (a police officer) and DDA and an email exchange between AAA and DDA. PPP provided me with:
(a) a letter from AAA to DDA dated 27 July 2022, a letter from EEE to DDA dated 28 July 2022, and an email from DDA to AAA dated 29 July 2022; and
(b) an email from PPP to Mr Olney that attached a letter to Mr Olney from EEE dated 9 May 2022, the interim intervention order that PPP obtained against DDA on 24 November 2022, and emails from DDA to Mr Olney dated 21 October 2022, 21 November 2022, 23 November 2022, 30 November 2022, 1 December 2022, 31 January 2023, and 1 March 2023 (the last of which had parts redacted).
The communications referred to in para 49(a) above reveal that: on 27 July 2022, AAA conveyed ‘concern’ regarding DDA’s safety at her parents’ residence, that she would take steps to return her personal belongings, while also saying that proceedings were going to be commenced against her and her parents and others in this court and contending that an injunction would be applied for because of ‘ongoing prejudice posed by your contumelious disregard of PPP and the Firm’s rights, as well as your malicious and fraudulent attacks against him’, and observing that it might be necessary to serve transcripts of her ‘private conversations’ on all parties once the proceeding was commenced; on 28 July 2022, EEE sent to DDA various transcripts of conversations between her and PPP, and referred to the impending application for an injunction against her; and on 29 July 2022 DDA said that the accusations made against her were ‘baseless and fallacious, and aimed at tarnishing my name and character’ and that she had ‘already suffered enough harm and emotional trauma by having associated with the Firm and some people related to it’. The email otherwise sought payment of two months’ wages, expressed regret at the way things had ended, and thanks ‘everyone for all the investment they have made’ towards her, and apologised if she had ‘hurt anyone’s feelings’, and thanking them ‘for everything, with all the good and the bad’, and that there was ‘no need for any hostility’.
The communications referred to in para 49(b) above post-date the making of the interim intervention order. The otherwise establish that DDA was emailing Mr Olney with information about PPP including allegations of unlawful or improper behaviour by him, and that EEE contended to Mr Olney that Mr Olney had been ‘fabricating evidence’ and ‘engaged in a clear conspiracy to effect public mischief and pervert the course of justice with DDA and the LSBC with the ultimate goal of vilifying and persecuting him’, and that he had ‘been complicit in DDA’s commission of crime through her breach of the terms of the intervention order’.
These communications do not appreciably, if at all, strengthen PPP’s argument that his claim to have the interim intervention order set aside will very likely succeed, for the purpose of deciding whether now to grant the injunction her seeks.
E.4.1.4 Other affidavit material
PPP asked me to have regard to an affidavit sworn by CCC that was sworn on 6 December 2022 and filed on 25 January 2023, an affidavit that was affirmed by BBB on 18 August 2023,[12] and pages from the 2195-page exhibit MDG-6 and from the 277-page exhibit MDG-7 to the affidavit by AAA dated 6 November 2022.
[12]No explanation was given for why he circulated this affidavit so late.
CCC is the person who translated information obtained from DDA’s personal phone from Turkish to English and reviewed other transcripts of recordings made of DDA’s conversation provided to her by PPP or persons associated with him. CCC said that this process involved ‘approximately five months of continuous dedication’ of her ‘time and efforts’, working ‘an average of at least eighty hours a week, every week during that period’. That reveals the extent of the recordings that PPP has made of DDA’s conversations and information that he has obtained from her personal phone. CCC set out in her affidavit some deeply personal messages that DDA had sent from her personal phone. CCC suggests in the affidavit that DDA was experiencing significant conflict with her family due to their conservative background. This was done, it seems, to support the assertion that DDA was fabricating evidence against PPP.
BBB described herself as ‘a close business associate’ of PPP and is a director of the legal firm ultimately owned by him. She described PPP was ‘the most principled’ person she had come to know, although she accepted that he often came across as ‘intimidating’. She asserted that DDA was ‘trying to take advantage’ of PPP, and her affidavit describes the commencement of the romantic relationship between DDA and PPP, and her reaction to it.
The pages from AAA’s exhibit included a printout of an email sent on 19 July 2022 to DDA informing her that she was censured on the grounds that, among other things, she had breached her director’s duties. There were otherwise transcripts of recorded conversations between DDA and PPP and sometimes others. Many of those conversations concerned issues that DDA was having with PPP and with her parents and they touched upon her mental health and issues that arose as a result of the relationship that had developed between DDA and PPP and the involvement of the police. I accept that there were occasions where DDA said things that are inconsistent with her being in fear for her safety from PPP — at one stage she said to PPP that he had been ‘nothing but good’ to her. Another conversation was between DDA and the police (from her workplace) during which conversation she did not say she was in danger or ask for assistance and did not accept their offer to come to her workplace or to ‘get her out of there’. There were also occasions where PPP called her an ‘idiot’ and accused her of ‘defrauding him’ and of ‘manipulating’ him including by what she was telling him about her parents and that her behaviour was ‘criminal defamation, criminal fraud’ and that she was ‘being a horrible person’.
In my view, this material reveals the complexity of the relationship between DDA and PPP and between DDA and her parents, but it does not establish that there is no real prospect that DDC’s version of events will not be accepted.
E.4.1.5 The application to reopen
PPP sought leave to reopen in order to respond to an affidavit sworn by DDA on 17 August 2023. He said that he was not aware that this affidavit had been filed at the time that the appeal was argued. I informed him that I would not rely on that affidavit.[13]
[13]Indeed, it had not found its way to me by the time of the argument, no-one took me to it, and I have not read it.
He also sought leave to reopen in order to present an argument that the Magistrate may have acted on wrong material, or failed to act on correct material, having regard to matters contained in the Magistrates’ Court General Civil Procedure Rules 2020. He explained, candidly, to his credit, that the argument had occurred to him when he carefully read the Magistrates’ Court Rules over the weekend. It is not as if some additional piece of evidence had been discovered by him after argument. The discretion to grant leave to a party to re-open their case must be exercised having regard to the objective of facilitating the just, efficient, timely and cost effective resolution of the issues in dispute. The Court gave directions for the exchange of material well in advance of the hearing of this appeal including the exchange of written submissions. There is no reason why PPP could not have read the Rules and presented the argument in an orderly fashion in according with the directions given. For those reasons, I refused his application to re-open his case.
Finally, PPP sought leave to reopen his case in order to argue that I ought not to have regard to an affidavit sworn by a lawyer who was a former employee of the Firm. He wished to argue that the affidavit was inadmissible, or unable to be relied on, because it contained information that was privileged. Again, this was an argument that was well able to have been included in the written submissions were to have been filed in advance of the hearing. I also refused PPP’s application to reopen his case to make this argument. I note, however, that I have not relied on this affidavit in forming the views I have.
E.4.1.6 Conclusions
In light of the above, in my view PPP’s application for an injunction must be approached on the basis that his argument that the interim intervention order was made unlawfully is a difficult argument.
E.4.2 The balance of convenience
PPP contended that the balance of convenience was in his favour because:
(a) he needed to serve documents on DDA, and she had suggested that he was breaching the order by doing so; and
(b) the existing of the order enabled DDA to make unfounded allegations that he had breached it.
Some method must be devised by which PPP and DDA are able to serve documents on each other. PPP acts for himself. DDA had lawyers acting for her in this proceeding but that is no longer the case.
Even so, however, in my view the balance of convenience is strongly against the making of an order that prevents the interim intervention order continuing in effect until the matter is finally determined by the Magistrates’ Court. PPP and DDA had no children together, never shared a home, and have no need to have ongoing communications with each other than with respect to the legal proceedings that PPP has brought against DDA. The relationship between the two is toxic and PPP has an interim intervention order against her in his favour.
I understand that the Magistrates’ Court has delayed the hearing of the final application for an intervention pending the determination of this proceeding.
E.4.3 Conclusion on the application for an injunction
Documents in this proceeding no longer have to be served personally. The Court has the ability to control its own processes and to dispense with compliance with the requirements of the Supreme Court (General Civil Procedure) Rules 2015.[14] In the circumstances, I would be prepared to make an order that documents in this proceeding may be served on DDA by sending them to another, identified person at an identified email address. An alternative would be for DDA, or the first to third defendants, providing a different address for service.[15]
[14]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 2.04.
[15]Cf Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.06.
The relationship between PPP and DDA is clearly toxic. I am prepared to assume that contact from PPP would probably cause DDA significant distress. When PPP’s case and the balance of convenience are considered, in my judgement PPP has not established that an injunction should be made.
E.5 The maintenance of confidentiality of the affidavits
PPP explained that DDA was given a work phone, but that he formed the view that DDA was behaving in a way that was contrary to the company’s interests and had or had probably used her personal phone to transact company business, and so, under the contractual relationship between her and the company, the company was entitled to access to her personal phone. Indeed, PPP contended that it was not he who had required that she hand over the phone, but the company. On further questioning, however, it was clear that he was the natural person who had made the demands on DDA for her personal phone. It was not clear in what capacity he asserted that he was acting on behalf of the company. It may be that DDA agreed to PPP reviewing her personal phone for any communications relating to the business of the company. It seems unlikely that she would have agreed to PPP reviewing private and deeply personal communications that had no apparent connection to the company’s business, using them in legal proceedings against her, and making them public.
I accept that the content of the affidavits are deeply personal to DDA and the prospect that members of the public might be able to view them would likely cause her distress. There is also, in this proceeding, probably an issue as to the lawfulness of the actions by which PPP obtained access to DDA’s phone and to its contents, and there may well be arguments as to the permitted use or admissibility of the contents.
PPP’s contention was that DDA had made unsavoury and fabricated public allegations against him, so, as a matter of fairness and to avoid unequal treatment or bias, the material he had extracted from her telephone and set out in affidavits should also be publicly available. He did not identify any other or broader reason for which he opposed the making of an order that prevented the affidavits from being inspected by members of the public until the hearing of this matter. PPP’s argument failed to appreciate what, in my view, is a distinction between two categories of material. There is a distinction between allegations of improper behaviour between two people involved in a dispute, and embarrassing material that is personal to one of those two people.
I agree with Baker JR that orders should be made that prevent members of the public from accessing the affidavits filed by PPP that set out the contents of DDA’s personal phone until the determination of this dispute or further order.
F. The affidavits sworn by the first, second and third defendants
The first three defendants filed affidavits after they indicated that they did not wish actively to participate in the proceeding. PPP submitted that for that reason I ought not to have regard to those affidavits. Without determining the validity of PPP’s argument, I have not relied on those affidavits in reaching the conclusions I have.
G. Disposition and orders
I have concluded that the arguments raised by the notice of appeal have failed.
In light of the above findings, I will dismiss paragraph 6 of PPP’s 25 January 2023 summons.
Because of the effluxion of time, and because the appeal was brought against procedural orders, it will be necessary for me to set aside the procedural orders that were made and to make different orders in their place.
I propose to provide for the hearing of the State of Victoria’s application for summary dismissal before hearing all of PPP’s summons and for the exchange of affidavit material and written submissions in advance of that hearing.
It seems to be appropriate that I also make orders that provide for the hearing of PPP’s originating motion to the extent that it is limited to an orthodox claim for judicial review of the making of the interim intervention order by the Magistrates’ Court on 12 September 2022 at the same time that the State of Victoria’s summons is heard. That could, it seems to me, be achieved by listing para 13 of PPP’s originating motion, set out in para 5 above, for determination with the State of Victoria’s summons. That application would then be determined finally on its merits. For the avoidance of doubt, that application would be limited to arguments that the Magistrates’ Court acted unlawfully and would not include applications or arguments that DDA or her family, police officers, the State of Victoria or the Board acted unlawfully, or applications for broader equitable relief. I will hear the parties on this proposal.
Subject to hearing the parties on the proposal to hear para 13 of PPP’s originating motion with the State of Victoria’s summons, I propose to order that:
(a) Paragraphs 1 to 7 and 9 of the Order made by Baker JR on 27 January 2023 are set aside.
(b) Paragraph 6 of the plaintiff’s summons filed 25 January 2023 be dismissed.
(c) Paragraph 8 of the Order made by Baker JR on 27 January 2023 be extended until further Order.
(d) The defendants file and serve any affidavits on which they seek to rely in support of paras 1 to 4 of the fourth defendant’s summons by 4pm on 13 September 2023.
(e) The plaintiff file and serve any affidavits on which they seek to rely in opposition to paras 1 to 4 of the fourth defendant’s summons by 4pm on 27 September 2023.
(f) The defendants file and serve a written submission, not to exceed 15 pages, on which they seek to rely in support of paragraphs 1 to 4 of the fourth defendant’s summons by 4pm on 11 October 2023.
(g) The plaintiff file and serve a written submission, not to exceed 15 pages, in opposition to paras 1 to 4 of the fourth defendant’s summons by 4pm on 25 October 2023.
(h) The plaintiff file and serve any affidavits on which he seeks to rely in support of para 13 of his originating motion by 4 pm on 13 September 2023.
(i) The defendants file and serve any affidavits on which they seek to rely in opposition to para 13 of the plaintiff’s originating motion by 4 pm on 27 September 2023.
(j) The plaintiff file and serve a written submission, not to exceed 15 pages, in support of para 13 of his originating motion by 4 pm on 11 October 2023.
(k) The defendants file and serve a written submission, not to exceed 15 pages in opposition to para 13 of the plaintiff’s originating motion by 4 pm on 25 October 2023.
(l) Paragraphs 1 to 4 of the fourth defendant’s summons and paras 13 of the plaintiff’s originating motion be heard on a date to be fixed not before 30 October 2023.
(m) No affidavit filed in accordance with these orders may exceed 20 pages in length, and the exhibits to such affidavits shall not exceed 80 pages in length.
(n) The plaintiff’s summons otherwise be adjourned to a date to be fixed not before
I will hear the parties on the proposals referred to above to avoid a situation where PPP is required to serve documents in this proceeding by emailing them directly to DDA, and on the question of costs.
I will hear the parties on the proposals referred to above to avoid a situation where PPP is required to serve documents in this proceeding by emailing them directly to DDA, and on the question of costs.
SCHEDULE OF PARTIES
S ECI 2022 04527
| PPP (a pseudonym) | Plaintiff |
| -and- | |
| DDA (a pseudonym) | First Defendant |
| DDB (a pseudonym) | Second Defendant |
| DDC (a pseudonym) | Third Defendant |
| THE STATE OF VICTORIA | Fourth Defendant |
| THE MAGISTRATES’ COURT OF VICTORIA | Fifth Defendant |
| VICTORIAN LEGAL SERVICES BOARD (ABN 82 518 945 610) | Sixth Defendant |
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