Swan v Pitrone

[2024] VCC 1765

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

Case No. AP 23-0763

LENNARD SWAN	Appellant
v
MICHAEL PITRONE	Respondent

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2024
DATE OF JUDGMENT:	6 November 2024
CASE MAY BE CITED AS:	Swan v Pitrone
MEDIUM NEUTRAL CITATION:	[2024] VCC 1765

REASONS FOR JUDGMENT
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Subject:APPEAL – PERSONAL SAFETY INTERVENTION ORDER APPEAL

Catchwords:              Appeal – legal, factual or discretionary error – error of law - whether learned Magistrate has power to strike out application at mention hearing – order of learned Magistrate striking out application set aside.

Legislation Cited:      Personal Safety Intervention Orders Act 2010; Magistrates' Court (Personal Safety Intervention Orders) Rules 2021.

Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13.

Judgment:                  Appeal granted. Orders of the Magistrates’ Court set aside.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Dober	Kyrou Lawyers
For the Respondent	In person	-

HIS HONOUR:

Introduction

1This is an appeal by Lennard Swan from an order made by a magistrate striking out his application under the Personal Safety Intervention Orders Act2010 (the Act). The order was made on 29 May 2023 during a mention hearing. Although Mr Swan raised several grounds of appeal, his principal ground was the lack of power of the magistrate to make the order. In light of the view I take of that ground, there is no need to consider the other grounds. 

Circumstances

2On 27 February 2023, Mr Swan applied for orders against Michael Pitrone. His application, along with other related applications, were mentioned before a magistrate on 29 May 2023. The application was contested. What occurred is set out in a transcript. Relevantly, the magistrate said:

“All right, both cameras need to come out. You need to pull them out, both of you. The application against Michael is struck out. I’m not going to grant an order against Michael. Michael is there for his brother and his niece and his sister-in-law and probably in the heat of the moment, has said some things he shouldn’t have but this is not about Michael. This is about you four – five, including your little one – as neighbours so your application and Michael is now struck out”.  

3Plainly, Mr Swan did not consent to the final determination of his application at this mention hearing. 

Discussion

4S 44(1) of the Act prohibits a court from proceeding to hear a contested application for a final order on a mention date unless the court is satisfied:

(a)   all parties have had an opportunity to seek legal advice and representation; and 

(b)   all parties consent to the hearing of the contested hearing on the mention date; and

(c)   it is fair and just to all the parties to hear the application on the mention date.

5The exceptions in s 44(2) do not apply here.  

6“Mention date” is defined in s 4 as the first mention date or another date on which the proceeding is listed other than for a contested hearing.

7S 183 of the Act allows the making of rules of court in relation to the striking out or dismissal by the court of matters.

8The Magistrates' Court (Personal Safety Intervention Orders) Rules 2021, it provides:

Order 6—Stay of proceeding

6.01 Stay of proceeding

If a proceeding is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the Court, the Court may, on the application of a respondent, stay the proceeding.

6.02 Striking out proceeding

If a proceeding—

(a) is scandalous, frivolous or vexatious; or

(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or

(c) is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the application be struck out or amended.

9The grounds for striking out describe a fundamental weakness in a proceeding. For example, if it is frivolous or vexatious then it is so flawed that no amendment could save it. Striking such a proceeding out amounts to a final order. There is no ability to reinstate it. It is unclear on what basis the magistrate struck out the proceeding but the reason must lie within r 6.02.      

10It is clear Mr Swan did not consent to the hearing of his application at the mention hearing. Since the requirement in s 44(1)(b) is not satisfied, the magistrate lacked the power to make the order which was made. The magistrate made an error of law[1]. I will set aside the order of the magistrate. 

[1] See AAA v County Court of Victoria & Ors [2023] VSC 13, especially at [67].

11I am told there is a directions hearing of the other related applications in the Magistrates’ Court at Moorabbin on 16 December 2024. I direct that this application be listed with those applications on that day for directions hearing.  

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