Appellant v Respondent

PRACTICE AND PROCEDURE - Application for leave to appeal from costs order made by associate judge - Whether associate judge erred in exercising discretion to order appellant to pay respondent's costs of the proceeding - Leave to appeal refused - Magistrates' Court Act 1989 (Vic) s 109 - Supreme Court Act 1986 (Vic) s 17A(2) - Personal Safety Intervention Orders Act 2010 (Vic) ss 109, 111, 126(1).

1 Since 26 August 2016, Fiona Austin has been the respondent to a series of personal safety intervention orders made under the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act). The most recent of these, and the only one still in operation, is a final order made on 29 November 2022 for a duration of five years (2022 final PSIO).

2 In this proceeding, Ms Austin seeks to appeal all of those orders under s 109 of the Magistrates' Court Act 1989 (Vic). Because the proceeding was commenced more than 30 days after the making of each of the orders, the appeal is deemed to be an application for leave to appeal.[1] Leave may only be granted if the Court is of the opinion that the failure to institute the appeal within time was due to exceptional circumstances.[2]

3 The respondent to this proceeding is Trent Dwyer, a detective senior constable of Victoria Police, who has been the applicant for the intervention orders made against Ms Austin since June 2019. The earlier intervention orders were made on the application of a young man who I will refer to as the affected person. Mr Dwyer was also the informant in a number of criminal charges against Ms Austin.

4 On 26 July 2024, Ierodiaconou AsJ disallowed Ms Austin's application for leave to appeal (26 July order).[3] On 26 August 2024, her Honour ordered Ms Austin to pay Mr Dwyer's costs on the standard basis up to 11am on 29 November 2023, and on an indemnity basis thereafter (costs order). Ms Austin has appealed from the 26 July order[4] and seeks leave to appeal from the costs order.[5]

5 For the reasons that follow, the appeal must be dismissed and leave to appeal must be refused.

6 On 26 August 2016, the affected person applied for and obtained an interim personal safety intervention order against Ms Austin, in Magistrates' Court proceeding G12353529 (2016 interim PSIO). Among other things, the order restrained Ms Austin from stalking the affected person and from contacting or communicating with him by any means. Ms Austin was not served with the summons and was not present at the hearing.

7 On 28 September 2016, a magistrate made a final personal safety intervention order in the same terms, for a duration of 12 months (2016 final PSIO). The order states that Ms Austin was served with a copy of the application and summons, although she says she was unaware of the application until she was served with the order on 3 October 2016.

8 On 11 September 2017, the affected person applied to extend the 2016 final PSIO. On the same day, a magistrate made an interim order extending the 2016 final PSIO until final order (2017 interim PSIO). Ms Austin was not served with the application to extend the 2016 final PSIO and was not present at the hearing on 11 September 2017. She was served with the 2017 interim PSIO on 15 September 2017.

9 During that time, Ms Austin was remanded in custody at the Dame Phyllis Frost Centre (DPFC). On 18 October 2016, she was arrested and charged with stalking the affected person, using a carriage service to harass him, and other related offences. Initially she was released on bail, but her bail was revoked on 6 December 2016, and she was detained from then until she was again released on bail on 22 November 2017.

10 On 5 March 2018, Ms Austin appealed to the County Court of Victoria against the intervention orders made in Magistrates' Court proceeding G12353529. On 6 June 2018, the appeal was struck out on the basis that it was out of time.[6]

11 Ms Austin then commenced proceeding S ECI 2018 00234 in this Court, seeking judicial review of the County Court's decision to strike out her appeal. On 29 May 2019, Ginnane J dismissed that proceeding, holding that the County Court judge was correct to conclude that there was no power to extend the time for bringing an appeal against the intervention orders.[7]

12 On 13 December 2019, the Court of Appeal dismissed Ms Austin's application for leave to appeal from Ginnane J's decision and orders.[8] On 13 May 2020, the High Court refused her application for special leave to appeal from the Court of Appeal.[9]

13 The extension application made on 11 September 2017 was not finally determined by the Magistrates' Court, and the 2017 interim PSIO remained in force until it was revoked on 14 June 2019 in proceeding K11461342.

14 On 6 June 2019, Mr Dwyer, as a member of Victoria Police, applied to the Magistrates' Court for a new interim intervention order to replace the 2017 interim PSIO. Mr Dwyer sought to become the applicant in place of the affected person, so that Victoria Police could act on his behalf at all future court hearings in relation to the matter. Victoria Police served Ms Austin with the application on 7 June 2019. Mr Dwyer's application was given proceeding number K11461342.

15 On 14 June 2019, a magistrate made an interim personal safety intervention order against Ms Austin (2019 interim PSIO), in substantially the same terms as the 2017 interim PSIO. The 2019 interim PSIO prohibited Ms Austin from stalking the affected person and from contacting or communicating with him by any means. Ms Austin represented herself at the hearing on 14 June 2019 and was present when the magistrate made the 2019 interim PSIO and revoked the 2017 interim PSIO.

16 Ms Austin appealed the revocation of the 2017 interim order to the County Court. On 25 October 2019, her appeal was struck out for failure to appear at a directions hearing. Ms Austin also sought judicial review of that decision in proceeding S ECI 2019 05218 in this Court. On 20 August 2021, Forbes J reserved that proceeding for the consideration of the Court of Appeal.[10]

17 On 22 July 2019, Ms Austin commenced proceeding S ECI 2019 03477 in this Court, seeking judicial review of the 2019 interim PSIO. On 20 December 2019, Forbes J dismissed the proceeding.[11]

18 On 12 November 2021, the Court of Appeal refused Ms Austin's application for leave to appeal from the order dismissing proceeding S ECI 2019 03477, and dismissed proceeding S ECI 2019 05218.[12]

19 On 7 April 2022, the High Court dismissed Ms Austin's application for special leave to appeal the Court of Appeal's decision.[13]

20 In the meantime, Mr Dwyer had applied to the Magistrates' Court to vary the 2019 interim PSIO to enable Ms Austin to cross-examine the affected person in her forthcoming criminal trial. Ms Austin was served with the application but did not appear at the hearing on 27 October 2021, at which a magistrate made the variation sought by Mr Dwyer.

21 The resulting 2021 interim PSIO made on 27 October 2021 read as follows:

The Court orders that the respondent must not:

1. Stalk the protected person(s)

NOTE - A person stalks another person if he/she engages in a course of conduct with the intention of causing physical or mental harm to that person including self harm, or arouses apprehension or fear in that person for his or her own safety or that of any other person.

2. Commit prohibited behaviour towards the protected person(s).

NOTE - Prohibited Behaviour is assault, sexual assault, harassment, property damage or interference, or making a serious threat.

3. Attempt to locate, follow the protected person(s) or keeping him/her/them under surveillance.

4. Publish on the internet, by email or other electronic communication any material about the protected person(s).

5. Contact or communicate with a protected person by any means, save for in the course of cross examination of her County Court trial in case number CR‑19-00632 only under the supervision of the presiding Judge.

6. Approach or remain within 200 metres of a protected person.

7. Go to or remain within 200 metres of any address where a protected person lives, works or attends school/childcare.

8. Get another person to do anything the respondent must not do under this order.

9. OTH order:

Service of the varied interim order made 27/10/2021 be effected by emailing a copy of the order to the Respondent at [email address]

22 Ms Austin was served with the 2021 interim PSIO on or about 28 October 2021.

23 On 28 June 2022, a further mention was listed in the Magistrates' Court. An email from the Magistrates' Court registry to the Victoria Police prosecutor about the hearing arrangements that day noted 'The respondent has indicated she will not be appearing'. At the hearing, the prosecutor informed the magistrate that Ms Austin had been found guilty at the County Court trial but that the matter was not finalised. The prosecutor said that she did not know the sentencing date and sought an adjournment for at least three months. The mention was adjourned to 29 November 2022, and the magistrate ordered that Ms Austin be able to appear by video link on that day.

24 The hearing on 29 November 2022 took place before the same magistrate. There was no appearance for Ms Austin. The prosecutor informed the magistrate that Ms Austin had been sentenced on 14 September 2022,[14] and was serving that sentence at DPFC. The prosecutor sought to 'finalise the order', with a duration of at least five years in light of the serious allegations made before the County Court.[15] The magistrate made a final order - the 2022 final PSIO - on the same terms as the 2021 interim PSIO, to expire at midnight on 28 November 2027 (unless extended or varied before then).

25 The 2022 final PSIO was served on Ms Austin on 16 December 2022. The certificate of service provided to the Magistrates' Court records that Leading Senior Constable Radovanovic of Melton Police Station delivered the 2022 final PSIO to Ms Austin at DPFC.

26 Ms Austin described in her evidence the way in which she was served:[16]

Before 8:30am, on 16 December 2022, I was taken to 'Visits'. Waiting for me in a 'no contact' visit pod were two plain clothed police officers. They told me they were there to serve a final PSIO on me. They did not show me any paperwork and did not tell me anything about the PSIO other than that I would be sent back to jail if I breached it and that they would place it in my 'Property' (a location within DPFC that prisoners have no access to). I received a copy of the final PSIO on 21 March 2023, the day of my release from prison.

This account was not challenged by Mr Dwyer, and I accept it.

27 At that time, Ms Austin was already on notice that a final order had been made against her. She outlined in her affidavit the way in which she first became aware of the 2022 final PSIO:[17]

On Wednesday, 7 December 2022, I was to attend a Case Management Review. Before being called into the Review, I was taken into a meeting with another prison employee who put some paperwork on the table in front of us. I could see the following written on that paperwork:

"Final PSIVO 29/11/2022 - 28/11/2027 OD

Interim PSIVO 27/10/2022 - 31/12/2030 OD"

I was told that DPFC did not have any additional information about the PSIOs noted on the paperwork.

28 Ms Austin took steps to appeal the orders she understood had been made against her on 27 October and 29 November 2022.

29 On 8 December 2022, Ms Austin asked officers at DPFC to send an email to the County Court, advising that she wanted to appeal the 2022 final PSIO and requesting the appeal documentation be sent to her at DPFC. It appears that this email was not sent until 20 December 2022. On 21 December 2022, Ms Austin received a response from the County Court, to the effect that any appeal had to be lodged with the Registrar of the Magistrates' Court.

30 Ms Austin then wrote a letter dated 21 December 2022 to the Magistrates' Court notifying it that she sought to appeal the 2022 final PSIO, although she did not have the reference number or the necessary documents. She requested confirmation of the commencement of the appeal from the 2022 final PSIO. Ms Austin's letter was emailed from DPFC to the Magistrates' Court on 22 December 2022. She did not receive a reply.

31 Having received no response from the Magistrates' Court, Ms Austin wrote to the County Court again on 8 and 27 February 2023, repeating her request that the County Court accept and commence her appeal from the 2022 final PSIO. On 2 March 2023, the County Court's Appeals and Post Sentence Application List replied to Ms Austin, reiterating that appeals from personal safety intervention orders are not initiated with the County Court, and are lodged with the Magistrates' Court where the final decision was made. The letter advised Ms Austin to contact the Magistrates' Court to initiate her appeal, and added that the County Court does not have jurisdiction to hear appeals lodged more than 30 days after the final order being made.

32 On 12 January 2023, Ms Austin sought judicial review by this Court of the interim order she believed had been made on 27 October 2022. The Prothonotary refused to accept her originating motion for filing, on the basis that the proposed proceeding would be irregular and an abuse of process. Ms Austin asked for that decision to be reviewed by a judge of the Court. On 23 February 2023, John Dixon J refused to direct the Prothonotary to seal the originating motion.[18] His Honour held that it was premature for Ms Austin to seek review of an order that she did not have and had only learned of by hearsay.[19]

33 As mentioned, in October 2016 Ms Austin was charged with stalking the affected person and with a number of related offences. Mr Dwyer was the informant.

34 On 7 February 2022, Ms Austin was arraigned in the County Court on Indictment No. G13348766, comprising four charges of stalking and four alternative charges of using a carriage service to harass a person. She pleaded not guilty to all charges.

35 Ms Austin represented herself at the trial in the County Court, before a judge and jury. The trial went for 16 days, during which Ms Austin personally cross-examined the affected person for three and a half days, and his mother for one and a half days. The jury found Ms Austin guilty of three charges of stalking the affected person, and one charge of using a carriage service to harass him.

36 On 14 September 2022, Judge O'Connell sentenced Ms Austin to a total effective sentence of 18 months' imprisonment with a 12 month non-parole period, with 350 days of that sentence already served.[20] His Honour's reasons for sentence described Ms Austin's offending conduct, which took place between October 2014 and November 2016, as 'protracted and unrelenting'.[21]

37 Ms Austin applied for bail pending an appeal. Her application was refused by Priest JA on 2 November 2022.[22]

38 Ms Austin's initial notices of application for leave to appeal against conviction and sentence were rejected by the Court of Appeal registry.[23] As far as I can tell, there is no appeal pending.

39 Ms Austin served her entire sentence of imprisonment, and was released from custody on 21 March 2023.

40 In Magistrates' Court proceeding G12353529, brought by the affected person:

(a) The 2016 interim PSIO was made against Ms Austin on 26 August 2016.

(b) That order ceased to have effect on 28 September 2016, when the 2016 final PSIO was made. The 2016 final PSIO had a duration of 12 months.

(c) The 2016 final PSIO was extended by the 2017 interim PSIO on 11 September 2017.

(d) The 2017 interim PSIO was revoked by the 2019 interim PSIO on 14 June 2019.

(e) None of these orders is still in force.

(f) Ms Austin has previously sought to appeal these orders, without success.

41 In Magistrates' Court proceeding K11461342, brought by Mr Dwyer:

(a) The 2019 interim PSIO was made on 14 June 2019, in substantially the same terms as the 2017 interim PSIO.

(b) Ms Austin unsuccessfully sought judicial review of the 2019 interim PSIO.

(c) The 2019 interim PSIO was varied by the 2021 interim PSIO on 27 October 2021.

(d) The 2021 interim PSIO had effect until 29 November 2022, when the 2022 final PSIO was made.

(e) Only the 2022 final PSIO remains in operation.

42 There is no evidence that an interim personal safety intervention order was made against Ms Austin on 27 October 2022. She has never been served with any order made on that date. Mr Dwyer is unaware of any such order, and has been unable to locate one in Victoria Police's records. It seems most likely that the note that Ms Austin saw on 7 December 2022 mistakenly recorded that the 2021 interim PSIO had been made on 27 October 2022, when the correct date was 27 October 2021. Ms Austin agreed that was an obvious possibility.[24]

43 Ms Austin commenced this proceeding by way of a notice of appeal filed 20 April 2023. While she specifically sought to appeal the 2022 final PSIO, she described the order subject to appeal as 'The whole of Personal Safety Intervention Order K11461342, and the whole of Personal Safety Intervention Order G12353529'.

44 The appeal is brought under s 109 of the Magistrates' Court Act, which provides:

109 Appeal to Supreme Court from final order made in civil proceeding

(1) A party to a civil proceeding in the Court may appeal, on a question of law, from a final order of the Court in that proceeding -

(a) in the case of the Court constituted by the Chief Magistrate who is a dual commission holder - to the Court of Appeal; or

(b) in the case of the Court constituted other than by the Chief Magistrate who is a dual commission holder - to the Supreme Court.

(2) An appeal under subsection (1) -

(a) must be instituted not later than 30 days after the day on which the order complained of was made; and

(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.

(3) Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.

(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).

(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

(6) After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.

(7) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.

45 Ms Austin correctly noted that leave to appeal is required.

46 The notice of appeal identified the following 'questions of law' raised in the appeal:

1. What weight is to be applied to, and how are courts to manifest, the purpose of the PSIOA set out in section 1(b) "to promote and assist in the resolution of disputes through mediation where appropriate"?
2. Does the PSIOA's purpose of "providing an effective and accessible system of personal safety intervention orders" in section 2(a), apply to respondents and if so,

1. how is that to be effected and
2. how does this purpose influence the interpretation of provisions in the PSIOA?

1. Does section 16A(2) of the PSIOA stop a court from rejecting a PSIO application made by a police officer if that "application is frivolous, vexatious, without substance, made in bad faith, has no reasonable prospect of success or is an abuse of process"?
2. Given that section 35 of the PSIOA provides that an interim PSIO may be granted if the court is satisfied that it is needed to ensure the safety of the affected person or their property "pending a final decision", is it a requirement, that both

1. a summons be issued under section 20 of the PSIOA, "requiring the respondent to attend at the court for the hearing of the application," and
2. a warrant be issued under section 21 of the PSIOA, for the respondent's arrest "as if the application for a personal safety intervention order alleged the commission of an offence"?

1. Given the life long detrimental impact PSIOs have on respondents, does the criteria in Section 35 of the PSIOA have to be met before an interim PSIO can be granted?
2. Given the life long detrimental impact PSIOs have on respondents and the impossibility of a respondent being heard once an interim PSIO has been granted, should proof of the genuine efforts and attempts made to inform the respondent of the PSIO application and the hearing of that application, be required before a court can make an ex-parte interim PSIO under section 37 of the PSIOA?
3. Given the life long detrimental impact PSIOs have on respondents, does the phrase "as soon as practicable" in section 42 of the Personal Safety Intervention Orders Act 2010 (Vic) (PSIOA) act to limit the life of an interim Personal Safety Intervention Order (PSIO)?
4. Given the life long detrimental impact PSIOs have on respondents, that PSIOs can be granted without the knowledge or input of the respondent and the existence of a lower standard or proof and criminal penalties, should the provision that "the court may inform itself in any way it thinks fit" in section 47 of the PSIOA's, require the respondent's evidence to be included in the decision making?
5. Can a judicial officer make an order under section 61 of the PSIOA finally altering the rights of a respondent, on the "balance of probabilities", if there is no input from the respondent?
6. Does the court need to demonstrate it has considered "all the circumstances" when making a final PSIO under section 61(1)(c) of the PSIOA and what weight should be assigned to this provision in the decision making process?
7. Does the court need to demonstrate it has considered the reasons it "must not make a final order" under section 61(4) of the PSIOA?
8. Given that sections 37 and 61 do not stop PSIOs being granted without the knowledge and input of the respondent, what impact does failing to abide by section 174(b) of the PSIOA have on the validity of the ex-parte order and the availability of review and appeal of the granting of that order under Part 3, Division 11 of the PSIOA?
9. What requirements must be met before a court can determine that there is no "evidence to the contrary" under section 178 of the PSIOA?

47 Five grounds of appeal were identified, relating to the questions of law:

Ground of appeal relating to Question of law 1 and 2

1. In the more than six years a PSIO with me as the respondent and [the affected person] has been in existence, no judicial officer has sought to resolve the dispute.

Ground of appeal relating to Question of law 2, 3, 4, 6, 8, 12 and 13

1. The failure of the court to reject [the affected person's] PSIO application made on 26 August 2016 and Trent Dwyer's PSIO application made on 6 June 2019, and its failure to inform itself of the evidence needed to make that decision, allowed the court to be used for improper purposes and the decisions were jurisdictional errors.

Ground of appeal relating to Question of law 5

1. The failure of Magistrate John O'Callaghan, on 14 June 2019, to correctly apply the law to the facts when granting an intervention order under section 35 of the PSIOA was an error of law on the face of the record.

Ground of appeal relating to Question of law 7

1. The failure to ever hold a final hearing of the application related to the interim PSIO (G12353529) before it was revoked on 14 June 2019, almost three years after it was granted, and the failure to hold a hearing for a final PSIO (K11461342) for three and a half years after an interim PSIO was granted, was an abuse of process denying me procedural fairness, a breach of my right to a fair trial under section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and an error of law.

Ground of appeal relating to Question of law 8, 9, 10 and 11

1. The failure of Magistrate Frances Medina, on 29 November 2022, to uphold my right to a fair hearing and her failure to correctly apply the law to the facts and to inform herself of those facts, when granting an intervention order under section 61 of the PSIOA was an error of law on the face of the record, denied me procedural fairness and was a breach of my right to a fair trial under section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

48 The associate judge's decision concerned both Ms Austin's application for leave to appeal under s 109(5) of the Magistrates' Court Act, and an application by Mr Dwyer for dismissal of the appeal under r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The grounds for Mr Dwyer's application were that Ms Austin's appeal was not arguable, did not sufficiently identify a question of law, and was vexatious or otherwise an abuse of process.

49 At the start of her Honour's detailed reasons for decision, the associate judge identified the questions she had to determine. In relation to Ms Austin's application for leave, the questions were:[25]

(a) Have exceptional circumstances been demonstrated?

(b) Will the grant of leave cause the respondent (Mr Dwyer) material prejudice?

(c) Should the Court exercise its discretion to grant leave?

50 Mr Dwyer's application under r 58.10(9) raised the following questions:[26]

(a) Are the interim personal safety intervention orders 'final orders' within the meaning of s 109(1) of the Magistrates' Court Act?

(b) Was the applicant (Ms Austin) on notice of the personal safety intervention orders issued on 27 October 2021 or 29 November 2022, and was notice required?

(c) Did the magistrate have the power to make the 2022 final PSIO on 29 November 2022?

(d) Is there any utility in appealing a revoked order?

51 After noting the material relied on by the parties, the associate judge set out the background chronology and the history of the proceeding.[27] She then identified the orders the subject of the appeal and the principles applicable to determining whether to grant leave to appeal under s 109(5) of the Magistrates' Court Act.[28] In relation to the 'exceptional circumstances' required by s 109(5)(a), the associate judge adopted the principles set out by McDonald J in Mako'ochieng v Kirk.[29] Her Honour also referred to Popal v Accounts Control Management Services Pty Ltd,[30] as to the exercise of the residual discretion under s 109(5).

52 The first question relevant to the application for leave to appeal was whether exceptional circumstances had been demonstrated. The associate judge summarised the parties' respective submissions and then gave her analysis:[31]

The acid test of granting leave under s 109(5) is whether the applicant has shown, sturdily and persuasively, that exceptional circumstances led to the lateness of her application.

The exceptional circumstances requirement is stringent. In Bucic v Arnej Pty Ltd, Mukhtar AsJ held that:[32]

The requirement of exceptional circumstances has a natural stringency or testing quality about it. It has regard to the apparent public interest in bringing closure on decisions of the State's Magistracy who (like the Victorian Civil and Administrative Tribunal) deal with a high throughput of disputes affecting ordinary people or public affairs, or the lower scale of trade and commerce, all with widespread variety. The right of appeal is limited to a question of law, and the 30 day time limit carries with it the desideratum of finality.

The applicant must demonstrate exceptional circumstances for two blocs of time. The first being the stipulated 30-day period ('prescribed period'); the second being the excess period from day 31 to the filing of the appeal ('excess period').[33]

53 Her Honour explained that the 30 days between Ms Austin's release on 21 March 2023 and the filing of the appeal on 20 April 2023 fell within the excess period. The prescribed period and the excess period together were 142 days.[34]

54 The associate judge then set out her conclusions on exceptional circumstances in relation to both the prescribed period and the excess period:[35]

Dealing first with the prescribed period. I reject the applicant's submissions that the circumstances were exceptional. No clear and cogent evidence has been provided to prove that such was the case. The applicant was on notice of the order from 7 December 2022. From 8 to 21 December 2022, the applicant took several steps, whilst incarcerated, to launch an appeal of the final order. Whilst it is true that communications in and out of prison can be difficult, and that inmates are not afforded limitless access to computers and the internet, being incarcerated at the time of launching an appeal does not generate a prima facie case for exceptional circumstances. To the contrary, the correspondence exhibited to the first Austin affidavit demonstrates that the applicant was able to consistently contact the Courts whilst incarcerated. The applicant emailed the Magistrates' Court on 22 December 2022. She emailed the County Court on 16 and 20 December 2022. She emailed the Supreme Court on 8 December 2022, 16 December 2022, and 12 January 2023. From the County Court of Victoria, she received a reply rejecting her request to appeal on 20 December 2022. From the Supreme Court, she received a reply from the Prothonotary rejecting her request for judicial review on 13 January 2023. This shows that the applicant was able to communicate with the Courts within the prescribed period specifically and during her incarceration generally. Therefore, the fact of her incarceration does not amount to exceptional circumstances for the purposes of s 109(5).

Dealing now with the excess period between the applicant's release and the launch of her appeal, a period of 30 days. I reject the applicant's submission that exceptional circumstances applied during that period. Again, no clear and cogent evidence has been provided to prove that such was the case. The applicant did state in the hearing that, during this time, there were logistical barriers that precluded the filing of her application. The logistical barriers listed by the applicant are not trivial, and I wish not to make light of the challenges faced by an individual in their first month out of prison. However, the authorities are clear. Exceptionality is the watch word for leave under s 109(5).

55 For those reasons, her Honour was not satisfied that Ms Austin's failure to launch her appeal within time was due to exceptional circumstances.[36]

56 On the second question of prejudice to the respondent, the associate judge was not satisfied that granting leave to appeal would cause Mr Dwyer to suffer any prejudice that could not be met by an order for costs.[37]

57 Her Honour then turned to the third question of discretion. In addition to not being satisfied that there were exceptional circumstances, the associate judge said that it would be futile to grant leave because the appeal had no real prospect of success.[38] For reasons discussed in relation to Mr Dwyer's dismissal application, Ms Austin's case on appeal was not arguable and she had not sufficiently identified a question of law. Leave to appeal was therefore refused.

58 In the alternative, the associate judge considered whether the appeal should be dismissed pursuant to r 58.10(9) of the Rules, specifically whether Ms Austin had an arguable case on appeal or had sufficiently identified a question of law.

59 The first particular question for determination in relation to that application was whether the interim personal safety intervention orders the subject of the appeal were 'final orders' within the meaning of s 109(1) of the Magistrates' Court Act. The associate judge held that they were:[39]

Section 109 of the Magistrates' Court Act is to be understood as recognising the difference between a final order and an interlocutory order. Final orders are those which finally determine the rights of the parties.

Under Part 2 of the PSIO Act, interim PSIOs are defined as those made under s 35 of that Act; final PSIOs are defined as those made under s 61.

An interim PSIO is issued pending determination of whether a final PSIO need be made. In this way, the relationship between interim and final PSIOs is analogous to the relationship between interlocutory and final injunctions. In Australian Broadcasting Corporation v Lenah Game Meats, which among other things concerned a request for injunctive relief, Gleeson CJ observed that:

There could be no justification, in principle, for granting an interlocutory injunction here other than to preserve the subject matter of the dispute, and to maintain the status quo pending the determination of the rights of the parties. If the respondent cannot show a sufficient colour of right of the kind sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.

The nature of an interim PSIO may be similarly framed. Section 35(1)(a) of the PSIO Act states that interim intervention orders are made, 'pending a final decision about the application.' That is, it is an order made pending further determination of the rights of the parties. If the applicant in such a case cannot evince a 'sufficient colour of right' which warrants the granting of a final PSIO, then the interim PSIO will dissipate alongside the claim for final relief. An interim PSIO, therefore, does not finalise the rights of the parties.

For these reasons, it is clear that the interim PSIOs, which in any case have lapsed, cannot be considered as final orders for the purpose of s 109(1) of the Magistrates' Court Act. Only the [2022 final PSIO] is open to challenge under that section. The applicant has no arguable case in respect of the other PSIOs. Notwithstanding this, the applicant's submissions regarding notice for the police varied interim PSIO will be addressed alongside her submissions concerning notice of the hearing of the police final PSIO.

60 Next, the associate judge considered whether Ms Austin was 'on notice' of the 2021 interim PSIO or the 2022 final PSIO, and whether notice was required. This concerned Ms Austin's contention that there was no attempt to contact or otherwise inform her about the hearing on 29 November 2022. The associate judge noted that s 44(2)(b) of the PSIO Act provides that the Magistrates' Court may make an order for a final PSIO if it is satisfied that the respondent had been served with a copy of the application and did not attend the mention.[40] After dealing with the evidence concerning service of the 2022 final PSIO, her Honour continued:[41]

Section 40(4)(b) of the PSIO Act requires a written explanation of the order, in the prescribed form, be served on the respondent if they did not attend the hearing in which the interim order was made. At the hearing which took place on 27 October 2021, the Magistrate ordered that service of the police varied interim PSIO be served by emailing a copy to the applicant's email address. The police varied interim PSIO contained the written explanation in the prescribed form. Therefore, the requirements were met, and the police varied interim PSIO validly served.

The applicant has no arguable case regarding a lack of notice.

61 The third question was whether the magistrate had power to make the 2022 final PSIO at the mention hearing on 29 November 2022, in Ms Austin's absence. The associate judge first addressed Ms Austin's contention that the magistrate failed to act in alignment with the purpose of the PSIO Act in s 1(b), to promote and assist in the resolution of disputes through mediation where appropriate. In that regard, her Honour held:[42]

Section 1(b) must be considered within the context of section 1 and the PSIO Act more broadly. It cannot be extracted from the Act and applied in isolation. Considering subsection 1(b) without its context contradicts the well-established principles governing the art of interpretation.

Section 1 of the PSIO Act has two limbs, one embodied by subsection (a), the other by subsection (b). This reflects the intention of Parliament, as in his second reading speech, the Minister clarified that:

The Personal Safety Intervention Order Bil 2010 has two aims:

To better protect victims of serious inappropriate behaviour that threatens their safety where that behaviour occurs outside the family; and to refer appropriate disputes to mediation services.

Subsections 1(a) and 1(b) share an "or" rather than an "and" relationship. That is, the relevant disputes will fall into one category or the other. Category 1(a) addresses those who are, or have been, the subject of threat or harassment. Category 1(b) addresses lesser disputes. As to what constitutes a lesser dispute, the Minister categorised them as 'neighbourhood [or schoolyard] disputes'. That is, those with a plausible chance of being resolved by mediation, where appropriate. Relevantly, the Minister emphasised that matters such as stalking would not at any point be considered "appropriate" for the purposes of section 1(b). The Minister clarified that:

It is important to ensure that only appropriate matters go to mediation. Obviously, it would be completely inappropriate for a case of genuine stalking to go to mediation. This would only re-traumatise the victim and reward the stalker. There is no 'dispute' to mediate between a stalker and his or her victim. The victim simply needs to be protected from the stalker.

Considering the PSIO Act more broadly, it is clear that Parliament drafted the order making power with stalking in mind. For example, s 61(1)(a)(ii) states as follows:

61 Power of court to make final order

(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that -

(a) the respondent has - ...

(ii) stalked the affected person and is likely to continue to do so or do so again.

It therefore appears that disputes engaging subsection 1(a) of the PSIO Act are excluded from consideration under s 1(b). That is, that cases of 'assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats' are impliedly excluded from consideration under s 1(b).

The [2022 final PSIO] was entered into for the respondent. The respondent sought the PSIO to protect the [affected person], who was the victim of a stalking campaign undertaken by the applicant. The applicant's stalking campaign led to her trial, conviction, and incarceration. The applicant's numerous references to the [affected person] in her affidavits and submissions demonstrate that her fixation on him has not relented. This is exactly the sort of matter Parliament envisioned as engaging s 1(a) of the PSIO Act. It is not the sort of "neighbourhood dispute" amenable to mediation; it is the antithesis of that.

For the reasons above, I have concluded that, the applicant has no arguable case that the Magistrate was misaligned with the purpose of the PSIO Act in granting the police final PSIO.

62 Next, the associate judge addressed Ms Austin's contention that the magistrate had not properly exercised the power to make a final order under s 61(1) of the PSIO Act. Her Honour set out the relevant parts of ss 44 and 61(1) of the PSIO Act, and continued:[43]

Turning first to s 44(2)(b) and the appropriateness of the hearing. The [2022 final PSIO] was issued during a mention. Section 44(1) precludes the issuing of final orders on a mention date. Section 44(2) provides exceptions to s 44(1). The [2022 final PSIO] recorded that the application and summons for the police final PSIO were served on the applicant. It also recorded that the applicant was not present on the date of the hearing. Section 44(2)(b) states that the Court may issue a final PSIO on a mention date if the respondent to that PSIO was served with the application and did not appear. The applicant was served and did not appear on the mention date. There is no evidence that the applicant was not able to attend the hearing virtually. The Magistrate had power to issue an order on a mention date pursuant to s 44(2)(b).

Turning now to s 61 of the PSIO Act. That section grants the Court power to issue final orders. The applicant has no arguable case that the Magistrate invalidly exercised power under that section. There is no arguable case that there is jurisdictional error. To venture beyond the question of whether the Magistrate has power into deciding whether the criteria under s 61(1) was correctly applied would involve conducting a merits review of the decision, which exceeds the Court's supervisory role.

63 The final question was whether there was any utility in appealing a revoked order. Her Honour held that there was not, because those orders had ceased to exist, and there was therefore no practical injustice in refusing leave to appeal a revoked order.[44]

64 The associate judge concluded with reasons why she determined that the appeal was unarguable and the notice of appeal did not sufficiently identify a question of law:[45]

Ground 1, Questions of Law 1 and 2

These questions address the purpose of the PSIO and Ground 1 also refer to the [affected person]. This proceeding is not between the applicant and the[affected person]. Further, as I discussed above, this matter is not amenable to mediation between the [affected person] and the applicant, and the Magistrate exercised power in alignment with the purpose of the PSIO Act. Ground 1 of the appeal is inarguable.

Grounds 2 and 3, Questions of Law 3, 4, 5, 6, 7, 12, 13

Question of law 3 does not identify a question of law. Moreover it is inarguable. Firstly, the applicant has not submitted any evidence demonstrating that the [2022 final PSIO] made by the respondent was frivolous, vexatious, without substance, made in bad faith, has no reasonable prospect of success, or is an abuse of process for the purpose of s 16A(1). Secondly, s 16A(2) is a clear statement of exemption for applications made by police officers.

Questions of law 4 - 7, as well as grounds 2 and 3, address the interim orders and laws in relation to the granting of interim orders. As I discuss above, there is no utility in appealing a revoked order. The grounds are therefore inarguable and I need not address them or questions of law 4 - 7 any further.

Question of law 12 is nonsensical.

Question 13 concerns service requirements under s 178. The phrase "in the absence of evidence to the contrary" within s 178(3) of the PSIO need not be interpreted here, given the certificate of service of the police final PSIO is in evidence, and the applicant did not submit any evidence to the contrary, except for the statement in her first affidavit that she did not receive a copy of the final PSIO until she was released. Therefore, nothing will be gained by undertaking this analysis. It is inarguable.

Grounds 4 and 5, Question 8 - 11

Question of law 8, concerning s 47 of the PSIO Act, does not sufficiently identify a question of law. Questions of law 9 - 11 concern the exercise of s 61. As I discussed above, the Magistrate was empowered to make a final order at the mention by s 44(2)(b) of the PSIO Act, and exercised power under section 61 lawfully. Grounds 4 and 5 are inarguable.

Given the findings above, it is unnecessary to consider the other grounds on which the respondent contended the appeal be dismissed.

65 Accordingly, the associate judge refused leave to appeal. She added that, had she not refused leave to appeal, she would have made orders dismissing the proceeding under r 58.10(9).[46] On 26 July 2024, the associate judge made an order disallowing the application for leave to appeal, and setting a timetable for submissions on costs.

66 Mr Dwyer sought an order that Ms Austin pay his costs of the proceeding. Ms Austin submitted that the Court did not have power to make a costs order, because s 111(1) of the PSIO Act required each party to bear its own costs, and otherwise argued that no costs order should be made. The associate judge rejected Ms Austin's argument, for the following reasons set out in 'Other Matters' in her Honour's order of 26 August 2024:

...

1. The applicant should pay the respondent's costs of the proceeding. The ordinary rule should apply, namely, costs should follow the event. The applicant was unsuccessful. The 26 July 2024 orders disallowed the application for leave to appeal.

2. I reject the applicant's submission that per s 111(1) of the Personal Safety Intervention Orders Act 2010 ('PSIO Act'), each party should bear their own costs. Section 111(1) states: 'Each party to a proceeding for a personal safety intervention order under this Act must bear the party's own costs of the proceeding.'

3. This proceeding does not call forward s 111(1) of the PSIO Act. There are two reasons for this. First, the present proceeding is an application for leave to appeal; it is a judicial review. It is not a proceeding for a PSIO. Second, proceedings for PSIOs must only take place in the Magistrates' Court or the Children's Court. So much is made clear by s 4(1) of the PSIO Act, which defines 'court' as being the Magistrates' Court or, with proviso, the Children's Court. Other sections of that Act reaffirm this. Section 12 provides that an application for a PSIO must be made at the proper venue in the Magistrates' Court or Children's Court. Sections 35, 61, 80, and 83 give the 'court', as defined, the power to make interim and final orders, vary or revoke orders, and extend final orders. Finally, section 182 of the PSIO Act provides that sections 91, 95, and 97, all of which concern appeal procedure, intentionally limit or otherwise vary the jurisdiction of the Supreme Court as given under s 85 of the Constitution Act 1975 (Vic). For these reasons, s 111(1) is not relevant. In reaching this conclusion, I adopt the principles given by Ginnane J in Austin v Dobbs (No 2) [2019] VSC 588, [21]-[25], upheld by the Court of Appeal in Austin v Dwyer [2019] VSCA 296, [119], [121].

4. I will briefly distinguish this application for leave to appeal, made under s 109 of the Magistrates' Court Act 1989 (Vic), from another type of appeal made under s 91 of the PSIO Act. The latter was mentioned by Ginnane J in Austin v Dobbs (No 2) [2019] VSC 588. Section 91 of the PSIO Act provides that a party to a proceeding under the PSIO Act may appeal against an order of the 'court' in the proceeding. This excludes interim PSIOs which, as stipulated by s 91(2), cannot be appealed. Section 92 provides that the appeal must ordinarily be made to the County Court. The appeal may be made in the Supreme Court if, and only if, the relevant decision was made by the President of the Children's Court. Similarly, it may only be made to the Court of Appeal if the relevant decision was made by the Chief Magistrate. This proceeding did not concern an appeal under the PSIO Act. In any case, outside of the special circumstances listed, the PSIO Act provides no direct avenue for appeal at the Supreme Court of Victoria.

5. The applicant relied upon two County Court authorities; neither of them apply. O'Connell v Burgermeestre [2023] VCC 2219, [60]-[65] is not applicable because it concerns an appeal made in the County Court under the PSIO Act. Huang v Fitzgerald [2021] VCC 1280 is not applicable for the same reason.

6. I reject the applicant's submission that there is a public interest in this proceeding. The basis of the applicant's public interest claim relates to the frequency of, and procedure involved in, PSIOs. Moreover, even if it was a public interest case (which it is not), this is not a case where a protective costs order was made. In any case, this proceeding is simply another civil proceeding brought by the applicant contesting a set of PSIOs made against her. The ruling describes other similar proceedings brought by the applicant. In her submissions, the applicant says that at least 112 court sessions and 54 judicial officers have been involved. The public interest is not enlivened simply by the applicant's numerous appeals.

7. Impecuniosity, without more, is not a ground to resist a costs order: Northern Territory v Sangare [2019] HCA 19; (2019) 265 CLR 164; (2019) 372 ALR 117, [36].

8. The respondent has acted as a model litigant in this proceeding. There is no substance to the applicant's assertions to the contrary.

67 The associate judge ordered that Ms Austin should pay Mr Dwyer's costs on the standard basis up to 11am on 29 November 2023, and on an indemnity basis thereafter. The basis for the indemnity costs order was an offer of compromise served on 27 November 2023, in which Mr Dwyer proposed the proceeding be dismissed with no order as to costs. Her Honour was satisfied that the offer of compromise was a genuine compromise that complied with r 26.02(3) of the Rules.

68 Ms Austin has appealed from the associate judge's orders of 26 July and 26 August 2024. Section 17(3) of the Supreme Court Act 1986 (Vic) provides for an appeal from a decision of an associate judge to the Trial Division constituted by a judge of the Court. An appeal from a costs order made by an associate judge may only be brought with the leave of a judge of the Trial Division.[47]

69 An appeal under s 17(3) must be brought in accordance with rr 77.06.1 to 77.06.9 of the Rules.[48] In particular:

(a) a notice of appeal must be served, and an application for leave to appeal must be made, within 14 days of the impugned judgment or order;[49]

(b) a judge may extend the time allowed for bringing an appeal or an application for leave to appeal at any time;[50]

(c) the hearing of an application for leave to appeal may be treated as the hearing of the appeal;[51] and

(d) the appeal is to be conducted by way of rehearing and the appellant is required to show error on the part of the associate judge before appellate power may be exercised.[52]

70 Ms Austin's notice of appeal from the decision of the associate judge was served on the respondent on 8 September 2024 - within 14 days of the costs order made on 26 August 2024, but more than 14 days after the order of 26 July 2024 disallowing leave to appeal. Ms Austin seeks an extension of time to appeal the order of 26 July 2024, and leave to appeal the costs order made on 26 August 2024.

71 Ms Austin's notice of appeal set out 10 grounds of appeal, most of which were expressed at a high level of generality and did no more than assert, in different ways, her strong disagreement with the associate judge's decision. Few of the grounds related to her Honour's path of reasoning.

72 Some of Ms Austin's grounds of appeal alleged bad faith and bias on the part of the associate judge. These grounds were unsupported by any evidence, and bore no relationship to her Honour's sympathetic and fair conduct of the hearing on 21 February 2024, or her carefully framed reasons for decision. I will not consider those grounds further.

73 Doing the best I can with the contentions made by Ms Austin in her notice of appeal and her written and oral submissions, I consider that the following questions are properly raised on her appeal:

(a) Did the associate judge err in finding that Ms Austin's failure to institute the appeal within 30 days was not due to exceptional circumstances?

(b) Was the associate judge wrong to find that the interim personal safety intervention orders were not final orders for the purposes of s 109(1) of the Magistrates' Court Act?

(c) Did the associate judge err in finding that there was no utility in hearing an appeal from the personal safety intervention orders that have been revoked and are no longer in effect?

(d) Was the associate judge wrong to find that there was no arguable case to appeal the 2022 final order?

(e) Was the associate judge wrong to hold that s 111 of the PSIO Act did not apply to the proceeding?

(f) Did the associate judge err in exercising her discretion to order Ms Austin to pay Mr Dwyer's costs of the proceeding?

74 In her first affidavit filed in this proceeding, Ms Austin provided a detailed account of the circumstances in which she learned of the 2022 final order, and her efforts to appeal it to the County Court. I have summarised her evidence at [26] to [31] above. Mr Dwyer did not seek to cross-examine Ms Austin in relation to her affidavit or otherwise challenge her evidence. The evidence relied on by Mr Dwyer - in particular the certificate of service of the 2022 final order - did not contradict Ms Austin's account.

75 Ms Austin's evidence was that the 2022 final order was made in her absence. She became aware of it by chance on 7 December 2022 and was formally served with it on 16 December 2022. However, she did not have access to the document until her release from DPFC on 21 March 2023. I accept that, without the proceeding number or the text of the order, and with the limited communication permitted to an inmate of DPFC, it was extremely difficult for Ms Austin to appeal the 2022 final order within the prescribed time.

76 Ms Austin nevertheless attempted to commence an appeal to the County Court by a letter written to the Magistrates' Court on 21 December 2022, which included the date of the order and the names of the parties, and was signed by Ms Austin. The letter was emailed to the Magistrates' Court by a DPFC officer on 22 December 2022. This communication was within the 30 day period for an appeal under s 91 of the PSIO Act, but received no response from the Magistrates' Court registry. The evidence does not disclose why that was so. Ms Austin's subsequent attempts to seek judicial review of the interim order she believed had been made on 27 October 2022 failed because she did not have the order. If Ms Austin had tried to appeal the 2022 final order to this Court under s 109 of the Magistrates' Court Act, she would have faced the same problem.

77 In my view, the associate judge's conclusion that the circumstances were not exceptional did not give sufficient weight to Ms Austin's evidence explaining why an appeal from the 2022 final order was not commenced within time. That evidence was clear and cogent, and not challenged by Mr Dwyer.

78 I also consider that the associate judge should not have extended the 'exceptional circumstances' test beyond the 30 day appeal period to the time that the notice of appeal was filed. Section 109(5)(a) of the Magistrates' Court Act directs attention specifically to the circumstances that explain the failure to institute the appeal within the prescribed period. Events before the making of the impugned order may be taken into account,[53] as may the continuation of exceptional circumstances after the expiry of the appeal period.[54] An explanation will usually be required for any subsequent delay, but the explanation need not meet the stringent test of exceptional circumstances.

79 In this case, the 30 day appeal period had expired by the time Ms Austin was released from prison on 21 March 2023. The circumstances that explain her failure to institute the appeal within time - set out at [75] to [76] above - were in my view exceptional. It is 'outside reasonable anticipati[55] or expectation'55 that a respondent to a personal safety intervention order made in their absence is in custody at the time, does not have access to the document until their release, and has extremely limited capacity to communicate with the relevant court registries. I also hope that it is a rare occurrence that a time-critical communication from a respondent to the Magistrates' Court registry is not answered.

80 Ms Austin gave an explanation for the further 30 day delay between her release and the commencement of the proceeding. She said that on release, she had to survive for the first two weeks on a $346.55 crisis payment from Centrelink. She also deposed to the deletion of her previous email account and the consequent difficulty in finding out what had happened in her various legal proceedings during her imprisonment. In Ms Austin's submissions to the associate judge, repeated on appeal before me, she explained that on her release she had nowhere to live, no car, no resources or money whatsoever. While reasonable minds might differ as to whether those circumstances were exceptional, that stringent test did not apply to delay after the expiry of the appeal period.

81 It follows from these conclusions that Ms Austin has met the threshold requirements in s 109(5) that enliven the discretion to extend time to appeal the 2022 final order. I am of the opinion that her failure to institute the appeal within 30 days was due to exceptional circumstances and, like the associate judge, I am satisfied that Mr Dwyer will not be materially prejudiced by the delay.

82 That does not mean that the discretion must be exercised in Ms Austin's favour - only that it may be exercised. The discretion is unfettered, and may be exercised having regard to all relevant circumstances, within and outside the 30 day period.[56] Exercise of the discretion typically involves consideration of the length of and reasons for the delay, any prejudice to the respondent, and the merits of the proposed appeal.[57]

83 Ms Austin did not demonstrate error in the conclusion that there were no exceptional circumstances to explain her delay in instituting appeals against the earlier personal safety intervention orders. Indeed, as the chronology set out at [6] to [19] shows, she pursued appeals against the intervention orders made in Magistrates' Court proceeding G12353529 and the revocation of the 2017 interim PSIO in that proceeding, and sought judicial review of the 2019 interim PSIO made in Magistrates' Court proceeding K11461342. None of those proceedings was successful. The associate judge was correct to conclude that she had no discretion to extend time in relation to the earlier intervention orders.

84 Ms Austin also challenged the associate judge's ruling that, in any event, an interim order under the PSIO Act could not be appealed under s 109 of the Magistrates' Court Act. She submitted that there is no distinction between the operation of an interim order and a final order - either one is a 'personal safety intervention order' for the purposes of the PSIO Act,[58] and the criminal penalties for breach of an interim order are the same as for a final order.[59]

85 Ms Austin argued that once an interim order is made, it never disappears; it is used forever as justification for discriminating against respondents and removing their legal and human rights. She said that, since the first interim order was made against her, she has been recorded in police and court databases as a threat to the safety of another person, without any proof. This has an ongoing effect on her, in circumstances where - according to Ms Austin - all of her attempts to appeal interim orders have been blocked.

86 These submissions cannot be accepted. For the reasons that follow, the associate judge was correct to conclude that an interim personal safety intervention order may not be appealed under s 109 of the Magistrates' Court Act.

87 Section 109(1) of the Magistrates' Court Act allows a party to a civil proceeding to appeal, on a question of law, from a final order of the Magistrates' Court in that proceeding. There is a well-recognised distinction between a final order and an interim or interlocutory order. As the associate judge correctly noted, a final order is an order that finally determines the rights of the parties.[60]

88 The PSIO Act provides for both interim orders and final orders. An interim order may be made under s 35 of the PSIO Act if the court is satisfied that an interim order is necessary, pending a final decision about the application, to ensure the safety of the affected person or preserve any property of the affected person. An interim order is, as the associate judge observed, akin to an interlocutory injunction granted to preserve the subject matter of a dispute, pending the final determination of a proceeding.[61]

89 The PSIO Act permits an interim order to be made in the absence of a respondent, whether or not the respondent is on notice of the application.[62] This initially prioritises the safety of an affected person over a respondent's right to be heard. However, s 42 requires a hearing to be listed for a decision about a final order as soon as practicable, allowing time for mediation where that is appropriate.[63] A respondent to an interim order has an opportunity to be heard at the hearing of an application for a final order.[64]

90 An interim order ends in the circumstances set out in s 43 of the PSIO Act - relevantly, when a final order is made or served on a respondent, or when the court refuses to make a final order. In this case:

(a) the 2016 interim PSIO ended when the 2016 final PSIO was served on Ms Austin;

(b) the 2017 interim PSIO ended when it was revoked by the 2019 interim PSIO; and

(c) the 2019 interim PSIO, as varied by the 2021 interim PSIO, ended when the 2022 final PSIO was served on Ms Austin.

91 The PSIO Act itself does not allow for an appeal from an interim order. Section 91(2)(b) specifically provides that there is no appeal against an interim order or a refusal to make an interim order. Instead, a respondent may contest the application for a final order. This reinforces the distinction in the PSIO Act between interim and final orders.

92 It is not to the point that there may be lasting consequences for breaching an interim order, whether or not the interim order has ended. While an interim order is in force, it must be obeyed by any person bound by the order. Contravention of a personal safety intervention order is an offence,[65] and a person who defies an interim order is exposed to criminal sanctions.

93 In short, an interim order made under the PSIO Act may not be appealed under s 109 of the Magistrates' Court Act.

94 Ms Austin disputed the correctness of the associate judge's ruling that there was no utility in appealing revoked orders or orders that have expired, and therefore no practical injustice in refusing leave to appeal a revoked order.[66] This ruling concerned the 2016 final PSIO, which was extended by the 2017 interim PSIO and then revoked by the 2019 interim PSIO.

95 Ms Austin submitted that personal safety intervention orders never cease to exist and never expire; they remain on police and court databases and their existence is used to justify additional adverse orders against respondents. This submission was unsupported by evidence and was contrary to the provisions of the PSIO Act. In particular, s 79 of the PSIO Act provides:

79 Duration of order

A final order remains in force -

(a) if a period is specified in the order, for the specified period unless it is sooner revoked by the court or set aside on appeal; or

(b) if no period is specified in the order, until it is revoked by the court or set aside on appeal.

96 Again, it is not to the point that there may be ongoing consequences for a person who has been convicted of breaching a personal safety intervention order that has since expired or been revoked.

97 I agree with the associate judge that there would have been no utility in granting leave to appeal from the revoked 2016 final PSIO, or any of the interim orders that were no longer in force. As I have found, there was no discretion to extend time to appeal from any of those orders. Even if there had been, the fact that the orders were no longer in force would have been a powerful consideration against granting leave to appeal.

Was there an arguable case in relation to the 2022 final PSIO?

98 Although the associate judge had a discretion to grant leave to appeal the 2022 final PSIO, it is clear from her reasons that she would have refused leave because the appeal was not arguable.[67] She would also have dismissed the appeal under r 58.10(9) of the Rules, on the ground that Ms Austin did not have an arguable case on appeal.

99 Ms Austin challenged that conclusion on three grounds. Her contentions were:

(a) first, the magistrate should not have made the 2022 final PSIO because Ms Austin was not notified of, and did not have an opportunity to be heard at, the mention on 29 November 2022;

(b) second, the 2022 final PSIO was not a proper exercise of the power in s 61 of the PSIO Act; and

(c) third, the magistrate had failed to give effect to the purpose in s 1(b) of the PSIO Act - to promote and assist in the resolution of disputes through mediation where appropriate.

100 Ms Austin submitted that it was unfair for the magistrate to have made the 2022 final PSIO in her absence, without questioning whether Ms Austin had been informed of the mention on 29 November 2022. She said that, while she knew that a mention had been listed, she did not know the case number or the date of the mention. Ms Austin submitted that it was unreasonable and unrealistic for the associate judge to expect her to have known of the mention, let alone attend, when her focus up to her incarceration on 14 September 2022 had been on her criminal trial.

101 Subject to the provisions of the PSIO Act, a respondent to an application for a personal safety intervention order is entitled to a reasonable opportunity to be heard before a final order is made against them. Part 3 of the PSIO Act prescribes in detail the procedures for dealing with an application for a personal safety intervention order. The procedures provided in pt 3 are the reference point for considering whether Ms Austin had a reasonable opportunity to be heard before the 2022 final PSIO was made.

102 Section 19 requires the application for a personal safety intervention order to be served on the respondent as soon as practicable after it has been made. Mr Dwyer's application in proceeding K11461342 was made on 6 June 2019, and Ms Austin was served with the application on 7 June 2019.

103 Section 37 expressly contemplates that an interim order may be made whether or not the respondent has been served with the application, and whether or not the respondent is present when the interim order is made. In this case, Ms Austin had been served with the application and was present at the hearing on 14 June 2019 when the 2019 interim order was made.

104 Section 81 provides that, if a person makes an application for a variation of a personal safety intervention order, the court may make an interim order varying the personal safety intervention order. In October 2021, Mr Dwyer applied to vary the 2019 interim PSIO to enable Ms Austin to cross-examine the affected person in her forthcoming criminal trial. Ms Austin was served with the application for a variation, but did not appear at the hearing on 27 October 2021 at which the 2021 interim PSIO was made. She was served with the 2021 interim PSIO on or about 28 October 2021.

105 If the court has made an interim order, s 42 requires that the hearing is listed for a decision about the final order as soon as practicable. In this case, Ms Austin was facing criminal charges related to the interim order, and it was not practicable to list the hearing for a decision about the final order until the criminal charges were finalised.

106 The application was listed for a mention on 28 June 2022. Ms Austin was aware of this mention but chose not to attend. On being informed that Ms Austin had been convicted of the charges and was awaiting sentencing, the magistrate adjourned the application to a further mention on 29 November 2022 with provision for Ms Austin to appear by video on that day. I am satisfied that Ms Austin was aware that the application had been adjourned to a further mention - she acknowledged as much in her written submissions in support of her appeal.

107 By 29 November 2022, Ms Austin had been sentenced and was in custody at DPFC. Although she was aware that the further mention had been listed, she did not make arrangements before going into custody to be represented at or to attend the mention. I accept that returning to prison seriously disrupted Ms Austin's life and affected her ability to represent herself in the application under the PSIO Act. However, it was her responsibility to take steps to attend or be represented at future hearings, including taking note of the date of the next mention. The fact that she was in prison did not shift that responsibility to anyone else. It would have been possible for Ms Austin to attend the mention by video link from DPFC, had she sought to do so.

(1) The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that -

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

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

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

(2) Subsection (1) does not prevent the court making a final order on a mention date if -

(a) all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 64; or

(b) the court is satisfied the respondent has been served with a copy of the application for a personal safety intervention order and has not attended court on the mention date.

109 In this case, Ms Austin had been served with a copy of the application and did not attend the mention on 29 November 2022. The conditions in s 44(2)(b) were satisfied, and the magistrate was able to make a final order at the mention. Ms Austin had recently been convicted of related offences following a jury trial in the County Court, had chosen not to attend an earlier mention of the application, and was aware of the adjourned mention but did not seek to attend it. In those circumstances, I consider she had a reasonable opportunity to be heard before the 2022 final PSIO was made, in accordance with the procedures prescribed by pt 3 of the PSIO Act.

110 While my path of reasoning is different to that of the associate judge, I agree with her Honour's conclusion that Ms Austin was on notice of the application and that the 2022 final PSIO could be made at the mention on 29 November 2022. I reject Ms Austin's submission that she did not have a reasonable opportunity to be heard in relation to the 2022 final PSIO.

111 Section 61(1) of the PSIO Act provides for the making of final orders:

The court may make a final order if the court is satisfied, on the balance of probabilities, that -

(a) the respondent has -

(i) committed prohibited behaviour against the affected person and -

(A) is likely to continue to do so or do so again; and

(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or

(ii) stalked the affected person and is likely to continue to do so or do so again; and

(b) the respondent and the affected person are not family members; and

(c) it is appropriate in all the circumstances of the case to make a final order.

112 In an appeal on a question of law under s 109 of the Magistrates' Court Act, a finding of fact may only be challenged on the basis that there was no evidence to support it.[68]

113 Ms Austin submitted that the magistrate could not have been satisfied of the criteria for making a final order set out in s 61 of the PSIO Act, and so had no power to make the 2022 final order. She referred to the transcript of the brief hearing that occurred on 29 November 2022, said that the magistrate heard no evidence and did not fully inform herself before making the order; rather, the magistrate simply did what the prosecutor asked, which was to finalise the interim order for a period of five years. Ms Austin argued that the associate judge failed to recognise that the magistrate did not address herself to the criteria in s 61.

114 I do not accept that argument, which was based on the incorrect premise that the only information available to the magistrate was what was said during the hearing on 29 November 2022.

115 In a proceeding for a personal safety intervention order, the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.[69] Among other things, the court may be informed by the documents on the court file and by information provided to the court by the parties in the course of the proceeding. Section 91 of the Evidence Act 2008 (Vic) does not apply to a proceeding for a personal safety intervention order,[70] and so evidence of a conviction and of findings of fact made in a criminal proceeding is admissible to prove the existence of those facts. A magistrate may conduct more than one hearing in the proceeding, and may take into account information provided during an earlier hearing.

116 In this case, the magistrate who conducted the hearing on 29 November 2022 had dealt with the proceeding on at least one other occasion, having adjourned the previous mention because the criminal proceeding had not been finalised.[71] The prosecutor informed the magistrate that Ms Austin had been sentenced on 14 September 2022 to a total sentence of 18 months with a non-parole period of 12 months, and was currently serving that sentence in DPFC. The prosecutor said that, because there had been a finding of guilt at trial, they were simply seeking to finalise the order. They noted that there was no attendance by Ms Austin and counsel had not been briefed to appear on her behalf.

117 The magistrate realised that the substantive file was not in court, and said that she could not make an order until it had been brought in. In the meantime, she sought submissions on the duration of the order. The prosecutor responded that the allegations before the County Court were serious, and so the prosecution sought a long duration, for a minimum of five years. They added that the affected person had instructed that they had no need to communicate with Ms Austin at all. The magistrate indicated that she was prepared to make the order sought, but needed to look at the substantive file before doing so. Later, after the file had been brought in to court, the magistrate formally made the 2022 final PSIO.

118 Clearly, the magistrate was informed by more than the brief exchange recorded in the transcript of the hearing. She had been informed of the conviction at the previous mention on 28 June 2022. That evidence alone enabled the magistrate to be satisfied of all the criteria for making a final order under s 61(1).

119 The significance of Ms Austin's conviction of stalking the affected person cannot be understated. Ms Austin was found guilty by a jury of very serious charges involving 'protracted and unrelenting' stalking and harassment of the affected person.[72] The offences of which she was convicted provided a sound basis for a final order of long duration. Ms Austin's submissions either ignored the reality of the conviction, or asserted that it would be set aside on appeal. As noted, there is no appeal pending. The conviction means that Ms Austin had no arguable case that the magistrate did not have power to make the 2022 final order.

120 Ms Austin challenged the associate judge's interpretation of the purposes in s 1 of the PSIO Act, and submitted that her 'dispute' with the affected person was exactly the kind of dispute that Parliament did not want clogging the courts under the PSIO Act.

1 Purposes

The main purposes of this Act are -

(a) to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and

(b) to promote and assist in the resolution of disputes through mediation where appropriate.

122 Ms Austin's argument before the associate judge was that the magistrate failed to give effect to the purpose in s 1(b) by making the 2022 final PSIO rather than seeking to resolve the dispute through mediation. The associate judge rejected that argument, applying established principles of statutory interpretation, and distinguishing between cases of genuine stalking and disputes where mediation is appropriate.[73]

123 No error has been shown in the associate judge's conclusions on this issue. I agree with her Honour that Ms Austin's stalking of the affected person was the antithesis of a dispute amenable to mediation. There was no 'dispute' between Ms Austin and the affected person that could have been resolved through mediation; they were not neighbours and had no ongoing relationship. She simply had to cease her harassment and leave him alone.

124 Section 111(1) of the PSIO Act provides that each party to a proceeding for a personal safety intervention order under the Act must bear the party's own costs of the proceeding. Ms Austin submitted that this provision applies to this proceeding, and so the associate judge was obliged to make no order as to costs. She relied on s 126(1) of the PSIO Act, which provides that s 109 of the Magistrates' Court Act applies to proceedings under the PSIO Act.

125 This submission cannot be accepted. An appeal on a question of law under s 109 of the Magistrates' Court Act is not a proceeding for a personal safety intervention order under the PSIO Act. It is different from an appeal to the County Court under s 91 of the PSIO Act, to which s 111 has been held to apply.[74] The associate judge's conclusion that s 111 does not apply to this proceeding was consistent with existing authority,[75] and was clearly correct.

126 Otherwise, no error was identified in the exercise of the associate judge's discretion as to costs. Ordinarily, an unsuccessful party will be ordered to pay the costs of the successful party. Ms Austin showed no reason why the usual rule should not be applied in this case, in which she was wholly unsuccessful. The associate judge was correct to conclude that Mr Dwyer's offer of compromise was a genuine compromise, and that Ms Austin had unreasonably failed to accept it. There was no error in ordering costs on an indemnity basis from 29 November 2023 onwards.

127 I accept that time should be extended for Ms Austin to appeal the associate judge's order of 26 July 2024 disallowing leave to appeal. It was reasonable for Ms Austin to wait until the question of costs had been determined, which did not occur until 26 August 2024. Ms Austin served her notice of appeal on the respondent within 14 days of the costs order, and filed it shortly afterwards. The short delay caused no prejudice to Mr Dwyer.

128 However, the appeal from the order of 26 July 2024 must be dismissed. While I have concluded that the associate judge should have found that Ms Austin's failure to institute the appeal within 30 days was due to exceptional circumstances, I agree with her Honour's alternative conclusion that leave to appeal should not be granted. In particular, no error has been shown in her Honour's finding that Ms Austin did not have an arguable case on appeal.

129 I will refuse leave to appeal from the costs order made on 26 August 2024. The proposed appeal lacked any merit.

130 Finally, I will make directions to enable the Court to consider making a litigation restraint order against Ms Austin under the Vexatious Proceedings Act 2014 (Vic). In light of the litigation history outlined at [10] to [19] above, Ms Austin's conduct in this proceeding, and her avowed intention to persist in bringing similar proceedings,[76] it is time for the Court to consider whether such an order should be made.

[1] Magistrates' Court Act 1989 (Vic), s 109(2), (4).

[2] Magistrates' Court Act, s 109(5)(a).

[3] Austin v Dwyer [2024] VSC 435 (Reasons).

[4] Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 77.06.

[5] Supreme Court Act 1986 (Vic), s 17A(2).

[6] A notice of appeal must be filed within 30 days of the relevant decision: Personal Safety Intervention Orders Act 2010 (Vic), s 93(2)(c) (PSIO Act).

[7] Austin v Dobbs [2019] VSC 355, [48].

[8] Austin v Dobbs [2019] VSCA 296, [97]-[101].

[9] Austin v Dwyer; Austin v Dobbs & Anor; Austin v Dobbs & Anor; Austin v Dwyer & Anor; Austin v Dobbs [2020] HCASL 122.

[10] Austin v Dobbs & Ors [2021] VSC 508.

[11] Austin v Dwyer & Anor [2019] VSC 837.

[12] Austin v Dobbs & Ors [2021] VSCA 306.

[13] Austin v Dwyer & Anor; Austin v Dobbs & Ors [2022] HCASL 65.

[16] Affidavit of Fiona Austin sworn 19 April 2023, [31].

[17] Affidavit of Fiona Austin sworn 19 April 2023, [27]-[28].

[18] Austin v Dwyer & Ors [2023] VSC 76.

[19] Austin v Dwyer & Ors [2023] VSC 76, [22].

[20] DPP (Vic) v Austin [2022] VCC 1571.

[21] DPP (Vic) v Austin [2022] VCC 1571, [117].

[22] Austin v The King [2022] VSCA 240.

[23] Austin v The King [2022] VSCA 240, [7]-[8].

[24] Transcript of Proceedings, Austin v Dwyer (Supreme Court of Victoria, S ECI 2023 01654, Richards J, 6 March 2025) 14:4-26.

[27] Reasons, [10]-[12] (material), [13]-[46] (background), [47]-[53] (history of the proceeding).

[28] Reasons, [56] (orders), [59]-[61] (principles).

[29] [2017] VSC 459, [8]-[9], [14], [45].

[30] [2010] VSC 412, [17]-[18].

[32] [2015] VSC 568, [3]-[4].

[33] Pole v Jasenthuhewage [2015] VSC 186, [41]-[42].

[39] Reasons, [91]-[95] (citations omitted).

[42] Reasons, [112]-[118] (citations omitted), having referred at [111] to SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ).

[43] Reasons, [122]-[123] (citations omitted).

[47] Supreme Court Act, s 17A(2).

[52] Re Brooklyn Park & Co Pty Ltd [2024] VSC 611, [18].

[53] Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [27], [31]; Miao v Body Corporate SP31235U [2013] VSC 380, [27]-[29].

[54] Pole v Jasenthuhewage [2015] VSC 186, [39]-[42].

[55] Mako'ochieng v Kirk [2017] VSC 459, [9].

[56] Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [17].

[57] Nikolic v Nationwide News Pty Ltd [2024] VSC 380, [52]; upheld on appeal in Nikolic v Nationwide News Pty Ltd [2025] VSCA 79, [32], [60].

[58] PSIO Act, s 4 (definition of 'personal safety intervention order').

[59] PSIO Act, s 100. The maximum penalty for breach of any personal safety intervention order, whether interim or final, is 2 years imprisonment or a fine of 240 penalty units.

[60] Reasons, [91], citing Bienstein v Bienstein (2003) 195 ALR 225, [25] (McHugh, Kirby and Callinan JJ).

[63] PSIO Act, pt 3 div 2 provides for mediation. In particular, s 26(1) enables the court to give mediation directions 'if the court considers in the circumstances of the case that mediation may be appropriate'.

[68] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA); Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390, [91] (Hayne, Heydon, Crennan and Kiefel JJ).

[71] See [24] above.

[74] Huang v Fitzgerald (Ruling) [2021] VCC 1280, [48]-[52]; O'Connell v Burgemeestre [2023] VCC 2219, [60]-‍[65].

[75] Austin v Dobbs (No 2) [2019] VSC 588, [21]-[25]; Austin v Dobbs [2019] VSCA 296, [121].