Schutz v Pursell
[2024] VCC 1441
•24 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-0491
| SCHUTZ, Piotr | Plaintiff |
| v | |
| PURSELL, Andrew | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2024 | |
DATE OF JUDGMENT: | 24 September 2024 | |
CASE MAY BE CITED AS: | Schutz v Pursell | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1441 | |
REASONS FOR JUDGMENT
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Subject:Appeal against personal safety intervention order
Catchwords: Intervention order appeal – Where appellant is self-represented litigant – Legal, factual or discretionary error – personal safety intervention order – intervention order for indefinite period
Legislation Cited: Personal Safety Intervention Orders Act 2010; Evidence Act 2008
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153; Devries v Australian National Railways Commission (1993) 177 CLR 472; Lee v Lee (2019) 266 CLR 129; Blunt v Blunt [1943] AC 517; House v The King (1936) 55 CLR 499; Stead v State Government Insurance Commission (1986) 161 CLR 141
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr Schutz, in person | - |
| For the Respondent | Ms J McCartney | Victoria Police |
HIS HONOUR:
Introduction
1In this proceeding, the appellant, Mr Piotr Schutz, appeals against an order made at the Magistrates’ Court on 26 April 2023. On this date, the application made by Victoria Police on behalf of Mr Andrew Pursell for an intervention order was granted by Magistrate McCarthy for an indefinite duration against Mr Schutz. The appellant filed a notice of appeal on 26 April 2023, grounds of appeal on 2 May 2023 and submissions in support of those grounds on the same date. He alleges that there has been legal, factual and/or discretionary error which attends the decision of Magistrate McCarthy. This appeal is brought pursuant to the Personal Safety Intervention Orders Act 2010 (“the Act”).
2For the reasons which follow, I will dismiss the appeal.
Relevant background
3The factual matters relevant to the context of the appeal can be briefly stated. Mr Pursell was housed in a unit across the hall from one inhabited by Mr Schutz and his partner. Mr Pursell’s evidence was that as soon as he moved in there was yelling and abuse of him while he was in his unit by Mr Schutz. Mr Pursell made two statements which ultimately were relied upon by police in bringing the application forward; first, an interim supervision order and then the final interim order.
4The first statement was dated 23 September 2021 and made by Mr Pursell. In this statement, Mr Pursell described being in his unit when Mr Schutz entered his unit uninvited and hit Mr Pursell with a left fist to the right side of the head. Mr Pursell gave evidence of pushing Mr Schutz out of the unit, and in the course of that smelled alcohol on his breath. He gave evidence of angry and aggressive language that was directed towards him (“the first incident”).
The second statement was made on 24 September 2021. In this statement, Mr Pursell alleged that at 3.30am on the morning of 24 September 2021 he heard kicking on his front door and an aggressive voice. Mr Pursell identified the person kicking his door and shouting at him as Mr Schutz (“the second incident”).
Proceedings in the Magistrates’ Court
5The magistrate heard the matter on 29 March 2023 and 26 April 2023. She then proceeded to make findings on the latter date and read oral reasons into the transcript. She found, on the balance of probabilities, that the first incident occurred.
6She made further findings that she could not be satisfied the second incident occurred. Having regard to other matters in the relationship between the two parties, the magistrate formed the view prohibited behaviour had occurred by reason of the first incident and it was likely to continue by reason of other matters which she found, and therefore imposed a personal safety intervention order pursuant to the Act. She made the order of indefinite duration given the parties still lived opposite each other.
The central issue in this case is to determine whether the appellant can demonstrate there had been a legal, factual or discretionary error in the decision by Magistrate McCarthy to grant an intervention order for an indefinite duration.
7The appellant submits there has been a legal, factual or discretionary error in the decision by the magistrate to grant the application.
Relevant legal principles
8In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors (“AAA”), [1] John Dixon J considered the terminology associated with s119 and particularly the meaning of the term “rehearing by the County Court” which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
a) that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[2]
b) the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[3]
c) the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[4]
d) the Court is required to assess and evaluate the evidence for itself.[5]
[1][2023] VSC 13
[2](Ibid) at paragraph [50]
[3]Ibid
[4]Ibid
[5]Ibid
9However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand.[6]
[6]Ibid at paragraph [54]
10As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[7] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court’s function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[8]
[7]Ibid at paragraph [63]
[8]Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council (2017) 51 VR 624, 645 at [65]
11Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates’ Court’s decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates’ Court, to examine the conduct of the proceeding and any reasons for decision.
Errors of law, fact and discretion
12What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[9] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[9] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
13A legal error may arise in the way in which a court:
“undertakes its fact-finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning”.[10]
[10] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]
14Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[11]
[11] Ibid
Factual error
15A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[12] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[13]
[12] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[13] Ibid
16The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[14]
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’.”
[14] (2019) 266 CLR 129 at [55]
17Similarly, in Blunt v Blunt it was said:
“If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”[15]
[15] Blunt v Blunt [1943] AC 517 at 526
Discretionary error
18Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
19The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[16]
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[16] (1936) 55 CLR 499 at 504-505
20Having set out those principles, I now turn to the grounds of appeal pressed by Mr Schutz.
The grounds of appeal
21Mr Schutz filed a statement setting out his grounds of appeal and submissions for the preliminary hearing. At the hearing, the appellant was provided time to make oral submissions to clarify his grounds of appeal and written submissions. I have read all the submissions and refer to the documents in tandem with his oral submissions in my consideration of whether Mr Schutz can demonstrate legal, factual or discretionary error in the decision of the magistrate.
22The grounds of the appeal themselves, as filed, are so broad as to be almost useless. In written submissions, matters did not advance further, save for very broad reference to case law such as Briginshaw v Briginshaw1 and various parts of legislation, but with no real attempt to link it to alleged errors of law, fact or discretion.
23At the hearing of the matter before me, Mr Schutz was somewhat more direct. He took the Court to a number of transcript references which he submitted showed error on the part of the magistrate. I propose to deal with each of the references that he made.
24The following transcript references are in respect of the Magistrates’ Court hearing date of 26 April 2023.
25Transcript 70, Lines 26 - 30
a) This was evidence that his partner gave which Mr Schutz alleges was never considered by the magistrate. I take this to be a submission that the magistrate failed to take into account a relevant matter and committed a discretionary error as outlined in House. This cannot be accepted, as the magistrate noted the evidence of his partner, but considered that, as she did not witness the events, but was only told about them afterwards, there was limited weight to be placed on her evidence. I reject this submission;
26Transcript 75, Lines 12-16 ꟷ
b) This is similar to paragraph (a). I reject it for the same reasons;
27Transcript 76, Line 28 ꟷ
c) This is the same as paragraphs (a) and (b) above. For the same reasons I reject it;
28Transcript 91, Lines 27-29 ꟷ
d) This related to Mr Schutz’s partner, who gave evidence in regard to the timing of the second incident. Mr Schutz’s submission was that his wife gave him an alibi in respect of the first incident and the magistrate gave no credence to this. I take this to allege discretionary error similar to paragraph (a) above. However, the transcript shows, at Transcript 91, Lines 29 to Transcript 92, Line 2, that the magistrate considered Mr Schutz’s partner’s evidence, and particularly the evidence that she did not see the interaction nor recall Mr Schutz’s level of sobriety on the day. In contrast, the magistrate had the evidence of the attending officer, who gave evidence that, when she observed Mr Schutz on the first occasion, he was heavily affected by alcohol. This quite clearly corroborated part of Mr Pursell’s evidence. It was, in combination with Mr Pursell’s evidence, a solid basis on which to make the decision that she did, specifically noting that Mr Schutz’s partner could not give any evidence about his level of sobriety. I reject this submission.
29Transcript 89, Lines 22 - 24 ꟷ
e) I understand his submission to be that the magistrate relied on irrelevant material in making her decision. The appellant submits the magistrate makes no finding in respect of the second incident yet relied on the second incident in making her decision. Upon review of the whole of the passage however, it is clear the magistrate is referring to the two witness statements which led to the making of the order, not the second incident alone. The magistrate makes a clear finding that the first incident occurred which formed the basis of granting a final order. I dismiss this ground;
30Transcript 95, Line 17 ꟷ
f) at this point in the decision, her Honour was considering the length of the order. I understood the appellant’s complaint to be simply that a shorter period ought to have been imposed. The magistrate expressed reasons for why she imposed an order of an indefinite term at Transcript 95, Lines 5 - 9. I consider this no more than a complaint as to conclusion, rather than identifying any legal, factual or discretionary error. I dismiss this ground;
31Transcript 92, Line 26 ꟷ
g) The appellant made a further broad sweeping submission that there was no evidence before the magistrate of prohibited behaviour. Given the magistrate found the first incident occurred, there was undoubtedly a finding of prohibited behaviour. The appellant then submitted that as the police had withdrawn the charges there was no ground for continuing with the first incident as the basis for the Intervention Order. As the magistrate explained, criminal charges are proceeded with on a different set of criteria with a different standard of proof. There was no error in the magistrate proceeding as she did, even with withdrawn criminal charges. The magistrate correctly expressed the relevant evidentiary standard as being on the balance of probabilities. I dismiss this ground.
32The following transcript references are in respect of the Magistrates’ Court hearing date of 29 March 2023.
33Transcript 11, Lines 5 - 9 ꟷ
h) at this point in the transcript it is apparent the police prosecutor is indicating to the magistrate how he would tender material. The prosecutor made it clear that the informant would not be asked about the truth of the events in the statement, simply of the informant’s overall concerns. The appellant alleges that this shows the magistrate was not concerned with the truth. I would reject that submission. The magistrate was clearly simply enquiring of the prosecutor how the matter would proceed;
34Transcript 11, Lines 5 - 6 ꟷ
i) here, the prosecutor simply noted that the informant would not be providing a statement and the reasons for that. This was no more than the magistrate seeking information about how the matter would proceed. There is no legal, factual or discretionary error;
35Transcript 20, Lines 20 - 22 ꟷ
j) the appellant draws attention to the magistrate, asking the witness, Mr Pursell, whether he required a glass of water. The appellant suggests that he was not afforded the same courtesy and this displayed an interference with the case. There is no legal, factual or discretionary error demonstrated. This is no more than the magistrate conducting court business.
36Broadly, the appellant suggests that the Evidence Act 2008 applied in total to the conduct of the proceedings and it was not complied with. The Act makes clear, at s47, that evidence can be received in any manner and only certain portions of the Evidence Act apply. The appellant did not descend to detail in what way those applicable sections of the Evidence Act had been breached and what material effect this might have on the ultimate decision.
37For those reasons, the appeal must be dismissed.
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