Thomas v Benson
[2024] VCC 1061
•19 July 2024
| 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-23-0099
| CAROLYN THOMAS |
| v |
| AMANDA BENSON |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 19 July 2024 | |
CASE MAY BE CITED AS: | Thomas v Benson | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1061 | |
REASONS FOR RULING
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Subject:Appeal against personal safety intervention order
Catchwords: Intervention order appeal - Where appellant is self-represented litigant - order for costs – whether exceptional circumstances exist
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Whisprun Pty Ltd v Dixon (2003) 234 CLR 492; 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; Garcev v Higgs [2020] VCC 927; R v Ioannou [2007] VSCA 277; Arsenin v George [2003] ACTSC 33
Judgment:Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms Thomas, in person | |
| For the Respondent | Ms Benson, in person |
HIS HONOUR:
1This is an appeal made by the appellant, Ms Thomas, in relation to a personal safety intervention order (‘PSIO’) application at the Magistrates’ Court on 30 January 2023. On this date, the intervention order application made by Ms Benson against Ms Thomas was withdrawn. This was by consent of the appellant in this proceeding. Ms Thomas made an application for costs on that day, which was refused. This appeal is made in relation to the order for costs.
2When hearing an appeal, this Court is bound by the decision in AAA v County Court of Victoria & Ors (“AAA”);[1] that is, to conduct an appeal not as a hearing de novo, but rather as a broad appeal. Such an appeal requires Ms Thomas to demonstrate that there has been a legal, factual or discretionary error in the decision of the Magistrate below in order to enliven the jurisdiction of this Court. Without the demonstration of such an error this Court is unable to entertain the appeal and it must fail.
[1][2023] VSC 13
3The appellant alleges that there has been a legal, factual and discretionary error in the costs decision by the Magistrate.
4The parties positions were put by way of written submissions and tendered material.
Costs
5The legislative framework as to the award of costs pursuant to the Personal Safety Intervention Orders Act2010 (“PSIO Act”) is set out in s111:
“Costs
(1) Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.
(2) In a litigation restraint order proceeding—
(a)if a person is made subject to an extended litigation restraint order or an acting in concert order, that person must bear the costs of the proceeding, other than the Attorney-General’s costs if the Attorney-General is a party to the proceeding; and
(b)if a person is not made subject to an extended litigation restraint order or an acting in concert order, each party must bear the party’s own costs.
(3) Despite subsections (1) and (2)—
(a)the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b)if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.
(4) If the court decides there are grounds to award costs against a person but the person is not present in court, the court may—
(a)adjourn the proceeding; and
(b)give the parties to the proceeding notice that an order for costs will be made on the next mention date unless the party against whom the costs will be awarded contests the making of the order on the mention date.”
6It can be seen clearly that it is explicitly provided that each party must bear their own costs of the proceeding. This presumption can only be displaced where:
(a) There are exceptional circumstances; or
(b) The Court is satisfied that a party has made an application that was vexatious, frivolous or in bad faith.
7The appellant in her submissions argues that a legal, factual or discretionary error had occurred in that the exceptional circumstances criteria was met, and the application made by Ms Benson was frivolous, vexatious and in bad faith.
Legal, factual or discretionary error
8What 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.[2] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.
[2] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Legal error
9A 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”.[3]
[3] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at [23]
10Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[4]
[4] Ibid
Factual error
11A factual error arises when a trial judge’s findings of fact are “glaringly improbable” and “inconsistent with facts incontrovertibly established by the evidence”.[5] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[6]
[5] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479
[6] Ibid
12The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[7]
“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’.”
[7] (2019) 266 CLR 129 at [55]
13Similarly, 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.”[8]
[8] Blunt v Blunt [1943] AC 517 at 526
Discretionary error
14Where 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.
15The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King:[9]
“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.”
[9] (1936) 55 CLR 499 at 504-505
16Having set out those principles, I now turn to the grounds of appeal pressed by Ms Thomas.
17I have read the submissions of Ms Thomas. I found it difficult to identify and categorise the alleged errors. Doing the best I can I have identified the following grounds of alleged error.
The Magistrates’ Court was in error when it considered the interim intervention order against Mr Devlin.
18First, the appellant argues that there has been an error at law in that the separate application by Ms Benson against Mr Devlin, her ex-partner, was considered by the Magistrate in refusing her costs application. Ms Thomas states:
“The decision to not award costs, was not based on the individual merits of my case, but instead, was based on Ms Benson’s application and allegations against my partner Mr Devlin, on material evidence filed in that matter and including that an Interim Order had been granted against him”[10]
[10] Appellant’s (“A”) submissions dated 21 June 2024 at paragraph [20]
19I note that the two applications made by Ms Benson against Ms Thomas and Mr Devlin in the Magistrates’ Court were applied for simultaneously and heard on the same date. Both applications were called in open court together. On this date, the application against Mr Devlin was adjourned for a directions hearing with an interim order in place. The application against Ms Thomas was heard immediately after and withdrawn by Ms Benson in court – this was consented to by the appellant.[11] Ms Thomas provides a Certified Extract of the Magistrates’ Court orders dated 1 March 2023[12] claiming the amended order states that the Court agreed a withdrawal was not by consent in the absence of agreement to pay costs.[13] This extract does not reflect the above, and is in fact an order dated 30 January 2023 with the date printed being 1 March 2023. The transcript confirms the application was withdrawn by the consent of the appellant in open court.[14]
[11] Transcript (“T”) 8 Line (“L”) 16
[12] Exhibit 2 of A submissions
[13] A submissions at [15]
[14] T8 L16
20Returning to the alleged legal error, that the Magistrate considered the allegations made by Ms Benson against Mr Devlin in the appellant’s application for costs. The Act provides that a hearing may relate to more than one application and any number of applications may be heard together if the court sees fit.[15] As such, the Magistrate was within her ability to consider the first application against Mr Devlin, especially where both applications pertain to the same incident date of October 2022. In response to Ms Benson’s solicitor, Ms Allenby, not specifying which incident or circumstances she referred to in her submissions, the Magistrate confirms this same incident to be the one that occurred in October 2022 in her ruling.[16]
[15] Personal Safety Intervention OrdersAct 2010 (Vic) s 45 (‘PSIO Act’)
[16] T17 L21-23
21Further, the appellant argues that the application against Mr Devlin was heard ex-parte and he had no knowledge of the application.[17] I refer to the Act which provides an interim order may be made in the absence of the respondent regardless of whether or not the respondent was served a copy of the application or whether they were present at the time the interim order was granted.[18] In summary, these legislative provisions permitted the Magistrate to act as she did. In taking that permissible course she was able to consider those matters she considered relevant from Mr Devlin’s proceeding.[19] That she considered relevant matters cannot be disputed given both matters arose from the same factual incident. As a result, I set aside this ground of appeal. It was open to the Magistrate to consider the fact an interim order had been granted in the related application in her ruling on costs. Overall, I find there had been no legal or factual error in this assessment by the Magistrate.
[17] A submissions at [29]
[18] PSIO Act s37
[19]PSIO Act s47
Procedural fairness
22Second, the appellant argues that a fair hearing was not afforded to her in allowing her to make full submissions to the court.[20] The appellant refers to parts of the transcript where she was cut off. This is factually incorrect. The appellant was afforded a further opportunity to respond to Ms Allenby’ submissions after they were made.[21] This is apparent from the transcript.
[20] A submission at [34]
[21] T13 L7
23The appellant then submits:
“Due to the short notice of the formal withdrawal in Court, I had not been provided with a reasonable time to prepare a submission or reasonably been provided with an opportunity to return on a further date to make submissions.”[22]
[22] A submissions at [35]
24The appellant never made a request for further time in her submissions or an adjournment request for another date. The costs application was called on in the usual manner immediately after the withdrawal of the IVO application. There was nothing out of the ordinary about such a course. Given the appellant made no request for time or informed the Magistrate she needed more time, it is entirely unclear why the Magistrate should have departed from the usual course. Further the appellant is bound by her decision not to request further time. She cannot now allege this led to a breach of procedural fairness.[23] I set aside this ground of appeal.
[23] Whisprun Pty Ltd v Dixon [2003] 234 CLR 492
Alleged error of fact by considering the family law proceeding
25The appellant submits the Magistrate made a material error of fact in considering the family law proceedings to which the appellant is not a party. The appellant submits:
“HH [sic] erred in fact when she states there are issues between Mr Devlin and [the child of Ms Benson and Mr Devlin (“the child”)], only. Clearly the allegations (which were vehemently denied) were as a result of Ms Benson’s involvement also.
26The Magistrate had a copy of the family law orders on this date. It is clear the family law orders were in relation to Ms Benson, Mr Devlin and their child. The Magistrate stated “the application made by Ms Benson raises… predominately family law issues which are relevant to contact between the father of [the child], Mr Devlin and [the child].”[24] In context, this statement relates to the allegations of the incident from October 2022 which consequently forms the basis of the intervention order applications. I find that this is not an error of fact as the Magistrate simply refers to the family law orders in a broader context.
[24] T17 L17 - 26
27Further, in her submissions, the appellant states that the Magistrate had made an error of law and fact by introducing issues from Mr Devlin’s matter where the allegations were different to those in her case.[25] I reiterate that the Magistrate is within her powers to consider and review the related proceedings in her costs decision in this matter. It is not a matter for this Court to rehear the facts of the allegations and to discern whether what was alleged by Ms Benson in relation to the October 2022 incident had occurred. Rather, this ground of appeal is whether the Magistrate erred by considering the family law issues. As set out above, the Magistrate was within her power to consider those matters raised in both the applications and is not bound by the rules of evidence.[26]
[25] A submissions at [43]
[26] PSIO Act s 47(1)
28The Magistrate simply confirmed that the previous Magistrate had deemed an interim intervention order necessary against Mr Devlin and was provided evidence of text messages and doctor’s reports which were considered in granting the order.[27] The Magistrate in the costs ruling did not give any material weight to these specified documents in which the interim order was considered previously.[28] Further, the Magistrate accepted these family law issues should be directed to the appropriate court.[29] This is simply a reiteration of the law. I therefore dismiss this ground of appeal.
[27] T18 L21 - 24
[28] T18 L5 - 13
[29] T18 L14 - 26
Alleged factual error
29The appellant alleges an error of fact occurred when the Magistrate referred to the application being withdrawn by Ms Benson “upon receiving legal advice that day”, being 30 January 2023.[30] The appellant argues that the Magistrate incorrectly inferred that legal advice was only received that day and hence Ms Benson withdrew her application. This submission cannot be accepted when regard is had to the context of the exchange between the solicitor for Ms Benson and the Magistrate. Ms Allenby clarified that after Ms Benson had received legal advice which she did not have at the time the application was made, she now understood the substantive matter concerned Mr Devlin and withdrew her application against the appellant.[31]
[30] A submissions at [51] – [52]
[31] T12 L7 - 12
30Ms Allenby was clearly indicating that having heard the Devlin matter the legal advice to Ms Benson was better informed and robust. This is recognised in the Magistrate’s ruling where she stated:[32]
“Ms Benson has withdrawn the application immediately upon receiving appropriate legal advice.”
(emphasis added)
[32]T19
31The Magistrate was clearly focused on the legal advice given on the day of the withdrawal in making her decision. So while Ms Benson was previously represented on earlier hearing dates, the Magistrate was correct in taking into account when “appropriate” advice was given based on the state of knowledge at the time. That it was heeded was a relevant factor to take into account. No error can be substantiated.
32For the above reasons, I do not find any error as alleged by the appellant can be demonstrated. I dismiss the appeal for these reasons. However if I were wrong, I set out below my findings as to whether the appellant can demonstrate she is entitled to a costs order in accordance with s111.
Whether exceptional circumstances exist
33In respect of satisfying the “exceptional circumstances” test in s111(3)(a), there is no definition of the term “exceptional circumstances” in the Act. As to that phrase, it was said by his Honour Judge O’Neill in Garcev v Higgs[33] that it meant “a course of conduct by one party so exceptional as to warrant a departure from the general rule.”[34] In another context, Hedigan J stated:[35]
“Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning “unusual, special, out of the ordinary course”. This does not mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or exception.”
[33][2020] VCC 927
[34]Ibid at [63]
[35]Owens v Stevens (unreported, Supreme Court, Vic, Hedigan J, No 6834 of 1991, 3 May 1991) at 16, 17
34This broad proposition was accepted by the Court of Appeal in R v Ioannou when they stated:[36]
“As these expressions indicate, the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies.”
[36]R v Ioannou [2007] VSCA 277 at [17]
35In her submissions, the appellant claims the application made by Ms Benson against her was “unexpected, unforeseen, and also unwarranted.”[37] She further states, the application was an exceptional event beyond her control and was not preventable in that Ms Benson made a vague and rogue application.[38]
[37] Appellant submissions at paragraph [56]
[38] A submissions at [57]
36In response, Ms Benson in her submissions argues, that in October 2022 she believed she had substantial grounds in applying for an intervention order against the appellant.[39]
[39] Respondent submissions dated 1 July 2024 at [1]
37In assessing whether the conduct of Ms Benson in these proceedings meets the “exceptional” criteria, I will briefly discuss the circumstances that led to the application. Ms Benson applied for two intervention orders on the same date, one against her ex-partner, Mr Devlin, and another against his partner Ms Thomas, the appellant in this proceeding. The interim order against Mr Devlin was granted on 25 October 2022 and the application against Ms Thomas, neither granted nor refused, was adjourned alongside it.
38In respect of the appellant’s submissions that the application was vague and rogue, I consider the substance of the allegations put by Ms Benson in her application are not relevant to the issue of exceptional circumstances. In this regard, I apply similar principles outlined in Stevens v Baxter which provides that a consideration of exceptional circumstances does not involve looking at the subject matter of the application.[40] I note the Magistrate accepted that Ms Benson understood her substantive matter to be in relation to Mr Devlin and consequently withdrew her application against Ms Thomas. This was consented to by the appellant on the day.[41]
[40][2009] VSC 257. I have set out why I accept those principles in an earlier decision of Malloye (a pseudonym) v Malloye [2019] VCC 2104
[41] T8 L16
39First, this conduct by Ms Benson to withdraw her application upon receiving appropriate legal advice does not fall outside the range of normally anticipated consequences that I would consider to be “exceptional”. As set out previously, Ms Allenby advised Ms Benson after the conclusion of the Devlin matter. There is nothing to suggest this advice had been given previously and rejected. It is entirely usual for a litigant to take the solicitor’s advice.
40Second, I accept the circumstances surrounding this application, where there were two concurrent applications by Ms Benson against her ex-partner and Ms Thomas surrounding the same incident are not those which would be considered unusual or outside the ordinary course of intervention order proceedings. The ordinary conduct by Ms Benson in applying for two related orders is not sufficient to meet the test imposed by the words “exceptional circumstances”.
41Additionally, the appellant submits that an exceptional event arose in that the funeral of a family member fell on the same date as her court hearing on 4 November 2022. This caused her to engage legal representation to appear on her behalf as she was advised by the Court registry that orders may be made in her absence.[42] On this date, an adjournment request was made on behalf of Ms Thomas by her solicitor. The application was adjourned to 5 December 2022 before being withdrawn in January 2023. On this basis, Ms Thomas’ conduct in obtaining legal representation to adjourn her proceeding due to her personal circumstances does not meet the “exceptional circumstances” threshold. It is a usual incident of litigation that proceedings are adjourned once or twice.
[42] A submissions at [57]
42Overall, I am unable to determine that the circumstances and conduct of parties would satisfy the “exceptional circumstances” test.
43Even if I were wrong about that, I consider that the subject matter of the application is not sufficient to constitute “exceptional” and would ultimately uphold the below court’s refusal of costs.
Whether vexatious, frivolous or in bad faith
44Turning now to consider the second part of the costs application, namely s111(3)(b). This subsection requires the Court to consider whether the “…making of any application under the Act was vexatious, frivolous or in bad faith.” A consideration of the text makes it clear that this subsection requires a consideration of the substance of the application itself, rather than the conduct of the litigation which is more the focus of s111(3)(a) as to what constitutes “exceptional circumstances.”[43]
[43]Some limited support for that interpretation can be obtained from the decision of Arsenin v George [2003] ACTSC 33 but this case was decided in the ACT under a different statutory regime, though the subject matter is similar and the words of the statute under consideration were similar.
45The bar to satisfy that legislative terminology is high however.[44]
[44] Arsenin v George [2003] ACTSC 33 at [12]
46I do not find the circumstances of this case rise to that high level. As set out above the substance of the matter was intimately connected with Mr Devlin’s application and the factual circumstances which gave rise to it formed the basis of the applications brought against the appellant. While the interim application against Mr Devlin was granted, the one against the appellant was withdrawn. This supports the view that I have formed that the factual basis was substantial. As the Magistrate said the application against the appellant was “misguided” but it could not be said to be vexatious or frivolous given the substantial factual matters at its heart.
47For this reason s111(3)(b) is not made out and there is no reason for a costs order to have been made in favour of the appellant
48Having considered the material, I find exceptional circumstances have not been met, and the application was not one that was vexatious, frivolous or in bad faith.
49If I were required to, I would uphold the Magistrates’ order refusing costs and therefore dismiss the appeal. Each party must bear their own costs of this appeal.
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