Applicant v Defendants

1 Fiona Austin has sought judicial review of a decision of the County Court of Victoria on 25 October 2019, striking out her appeal from a Magistrates' Court order. The matter was struck out on the basis of her non-appearance at a directions hearing on that day. The order that she was appealing was made under the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act). It was an order revoking a PSIO Act order made in favour of Oscar Dobbs (Revocation Order). These reasons deal with the request made by the third defendant, Detective Sergeant Dwyer, to reserve the proceeding for consideration to the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic) (the Act).

2 The grounds in the present proceeding include there being no basis to have struck out the County Court appeal. They identify that the directions hearing was requested by a non-party (Victoria Police) and that the plaintiff's attendance on that date was not required. The parties to the Revocation Order under appeal and now the decision under judicial review are Oscar Dobbs (the applicant for the PSI Order that was ultimately revoked) and the court which made the order.

3 Before Clayton JR (as she then was), an application was made by a member of the Victoria Police (Detective Sergeant Trent Dwyer) to be joined as a defendant to the present proceeding pursuant to r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The application for joinder was opposed. On 27 November 2019, Clayton JR ordered that Detective Sergeant Dwyer be joined.

4 Mr Dobbs has not filed an appearance in the present judicial review. The County Court of Victoria have provided a letter stating it will not take an active role in the proceeding in accordance with Hardiman principles[1].

5 Ms Austin has appealed the joinder to the Trial Division. That appeal is presently listed to be heard consecutively with the present judicial review application. A date for hearing is yet to be fixed.

6 To explain the request for referral under s 17B(2), the broader context of the underlying proceedings pursuant to the PSIO Act and the appeals generated from those underlying proceedings is necessary.

7 Mr Dodds, a school student, applied ex parte for an interim Personal Safety Intervention Order against his then teacher, Ms Austin in 2016 (Dobbs restraining order). This was granted. The sequence of events from that time is complex and is set out in detail by the Court of Appeal in its reasons for judgment in Austin v Dobbs.[2] I will not repeat it here, but it includes the laying of criminal charges by Victoria Police against Ms Austin. In those charges, Detective Sergeant Dwyer is the informant. The charges include breaches of the Dobbs restraining order.

8 The present judicial review grounds address one of two orders made by a Magistrate on 14 June 2019. On that day, the Magistrate revoked the Dobbs restraining order. At the same time, the Court dealt with a police application for a restraining order against Ms Austin. Detective Sergeant Dwyer was the named applicant to the police application.

9 The Magistrate granted an interim restraining order (the police restraining order). The police restraining order was otherwise in the same terms as the Dobbs restraining order that had been revoked.

10 The Revocation order, as I have said above, was appealed to the County Court. The granting of the police restraining order on 14 June 2019 was the subject of judicial review in this Court and was decided by me. I delivered reasons on 20 December 2019.[3]

11 That decision has been appealed and is now before the Court of Appeal (Matter APCI 0006 2020). Detective Sergeant Dwyer is the respondent to that appeal.

12 The reference under s 17B(2) of the Act is in the context of:

(a) the Court of Appeal previously having dealt with six appeals from the decisions of four judicial officers, handing down its reasons on 13 December 2019;[4] and

(b) the Court of Appeal having one current matter between Ms Austin and Detective Sergeant Dwyer, being the appeal against the decision in the Trial Division of 20 December 2019.

Reference of matters to Court of Appeal

(1) Any case or question in a case which for any reason is deemed fit to be re-argued before decision or to be re-heard before final judgment, may be argued before the Court of Appeal, if the Trial Division so directs.

(2) The Trial Division constituted by a judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise reserve any proceeding or question in a proceeding for consideration of the Court of Appeal or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.

(3) If a case, question or proceeding is reserved for the consideration of the Court of Appeal, or is directed by the Trial Division to be argued before it the Court of Appeal and -

(a) the Court of Appeal gives leave, the case, proceeding or question may be considered by, or argued before, the Court of Appeal; or

(b) the Court of Appeal refuses leave, the case, proceeding or question must be remitted to the Trial Division for determination by it.

14 In light of the history and chronology above, the Prothonotary wrote to the parties inviting consideration be given by them to this provision. The solicitors on behalf of the third defendant then made a request by email dated 7 July 2021 that the proceeding be reserved for the consideration of the Court of Appeal pursuant to s 17B(2) of the Act. A timetable was set for the provision of written submissions. Solicitors for the third defendant filed written submissions in support of their request identifying the relevant matters for the Court to consider in exercising its discretion.

15 Ms Austin opposed the referral. Her position is that Detective Sergeant Dwyer is not a proper party in respect of the Dodds restraining order, the revocation order or any review of those orders. Her position is that the two matters, those against Dodds and those against the Victoria Police, must be kept separate.

16 Ms Austin's appeal against the joinder remains an issue to be determined. However, it is clear that until the order is set aside, the third defendant is a party and is bound by the obligations of a party before the Court, as well as afforded the rights of a party. He will be bound by any judgment until such time as Ms Austin's appeal against the joinder succeeds. Other than the assertion that the third defendant's solicitors have no say in the proceeding, and that the referral is an attempt to deal with the proceeding "without hearing evidence", Ms Austin has not otherwise made submissions.

17 The task of the Court when a request is made is a discretionary one. The principles were recently and helpfully summarised in a ruling by Tate JA in Miller v Martin:[5]

The principles relevant to the reservation of a matter for appellate determination were discussed by Brooking J in Collins v Black, and have since been reiterated by the Court of Appeal. In short, there is no prescriptive criteria and there is no single factor alone that warrants a matter being so reserved; rather, everything depends upon the circumstances of each case. However, relevant considerations may include whether the appeal is confined to a question of law alone, the inevitably of an appeal from whatever decision is made at first instance, whether there is an advantage of convenience and any need for expedition in respect of the resolution of proceedings. A factor tending against reservation of a matter for appellate determination is that the appeal court will determine issues without having the advantage of those issues being defined and considered at first instance.

The question of whether two matters will be heard at the same time depends, amongst other things, on the degree to which the issues in one proceeding are intertwined with those in the other. Where one proceeding involves a set of issues, of fact and law, that are common to another proceeding and the first proceeding is already on foot in the Court of Appeal, this provides strong grounds of both convenience and expedition for the second proceeding to be reserved for the consideration of the Court of Appeal under s 17B(2), so that the common issues can be determined at the same time.

18 The orders made by Tate JA in the Trial Division were appealed by Mr Miller.[6] Leave to appeal was refused. In refusing leave to appeal, Kaye and T Forrest JJA observed that by referral to the Court of Appeal, s 17B(2) contemplates that 'the parties will not first have the benefit of an adjudication by a judge of the Trial Division on the issues in dispute in the litigation'.[7] The assertion by Ms Austin that by referral, the court will somehow not consider relevant evidence, is misconceived.

19 The extant Court of Appeal proceeding is an appeal from a judicial review. Equally, the Trial Division proceeding is a judicial review albeit in relation to a County Court judge's striking out of an appeal. Notwithstanding the different decisions under review, both involve questions of law and not the underlying merit of either the County Court appeal or the Magistrates' Court proceeding. The focus of each proceeding is different. Ms Austin's complaints about the Dodds restraining order and Dodds conduct are distinct from her complaints about the police restraining order and the police conduct. This, and the fact that the defendant parties are not identical in the two proceedings together with the prospect that if Ms Austin's appeal against the joinder of Detective Sergeant Dwyer were to succeed there would be no commonality amongst the defendants, does not detract from the underlying issues in both proceedings being inextricably intertwined.

20 The fact that six proceedings involving four judicial decision-makers have already been determined at the Court of Appeal, all arising from the same factual controversy highlights the undesirability of there being a multiplicity of proceedings arising out of the same dispute. That underlying dispute arises out of the conduct variously of Ms Austin, Mr Dobbs and Victoria Police. The inextricable intertwining of the two proceedings can be seen from the fact that ultimately both judicial reviews separately stem from dissatisfaction with the two orders made on 14 June 2019 in the Magistrates' Court. Further, on experience to date, an outcome in the Trial Division in the present proceeding, unless providing a vindication that the underlying proceedings in the Magistrates' Court are an abuse of process, is likely to result in an appeal. Given that no date has yet been set for a hearing in the Trial Division, referral to the Court of Appeal would result in facilitation of the just, efficient, timely and cost effective resolution of the real issues in dispute so as to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic).

21 I propose reserving the whole of this proceeding for the consideration of the Court of Appeal. I note for completeness that the Court of Appeal is not bound to accept the referral and leave is required in accordance with s 17B(3)(a). Furthermore, if leave is granted then the Court of Appeal may give judgment notwithstanding the fact that the proceeding was commenced in the Trial Division.[8] This also gives effect to the efficient disposition of the issues in dispute if this course were taken.

22 I will make an order reserving the proceeding for the consideration of the Court of Appeal pursuant to s 17B(2) of the Act.

[1] R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors [1980] HCA 13; (1980 144 CLR 13, [25].

[2] [2019] VSCA 296, [11]-[50].

[3] [2019] VSC 837.

[4] Austin v Dobbs [2019] VSCA 296.

[5] [2021] VSC 28 (Miller v Martin (Ruling No 1) of 2021), [30]-[31].

[6] Miller v Martin & Ors [2021] VSC 28.

[8] James v Gibson (1891) 17 VR 104.