Applicant v Respondent

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

It remained in force until a Magistrate made final orders or until it was varied, revoked, or removed by withdrawal of the application.[28]

1. On 12 November 2021, the Court of Appeal dismissed an application for leave to appeal the Orders of the Honourable Forbes J made on 20 February 2020. The Court of Appeal also dismissed the originating motion filed in proceeding S ECI 3029 05218.[29]
2. Between January and February of 2022, a 16-day trial occurred in the County Court.[30] The trial concerned the applicant's prosecution. She was found guilty of three counts of stalking the student and his mother, and one count of using a carriage service to harass them.
3. On 7 April 2022, the applicant sought special leave from the High Court, seeking to appeal the Court of Appeal's dismissal. The High Court refused the applicant special leave.[31]
4. On 28 June 2022, the Magistrates' Court held a mention in proceeding K11461342.[32] At the mention, the proceeding was adjourned to 29 November 2022.[33]
5. The County Court sentenced the applicant on 14 September 2022.[34] His Honour Judge O'Connell sentenced the applicant to 18 months in prison and a $2,500 fine.[35]
6. On 29 November 2022, the Magistrates' Court made an order for a final PSIO in proceeding K11461342 ('police final PSIO').[36]
7. By this time, the applicant was imprisoned at the Dame Phyllis Frost Centre ('DPFC'). The applicant first became aware of that PSIO on 7 December 2022.[37] It was served later, namely on 16 December 2022.[38]
8. On 8 and 16 December 2022, the applicant sent emails to both the County and Supreme Courts of Victoria in relation to the police final PSIO.[39]
9. On 20 December 2022, the applicant received a rejection from the Appeals and Post-Sentence Application List of the County Court. Notably, the email stated that:[40]

It is still unclear as to what cases Ms Austin is referring to in her letter.

...

If the Intervention Orders (IVO) were PSIO Order [sic] made in the Magistrates Court then any appeal will need to be made to the Registrar of the Magistrates' Court and not the County Court and these appeals should be made within 30 days of the Final Order.

If the appeal is accepted by the Magistrate's [sic] Court then the appeal will eventually be heard at the County Court.

Please pass this information on to Ms Austin

1. On 12 January 2023, the applicant again sought to commence a proceeding in the Supreme Court of Victoria.[41] The applicant sought to appeal a PSIO made on 27 October 2022 in proceeding K11461342.[42] The respondent states that he is unaware of an interim PSIO having been made in this proceeding on that date; the applicant has not submitted any record of it.[43]
2. On 13 January 2023, the Prothonotary responded to the applicant. He communicated his refusal to seal and file the applicant's proposed documents.[44] In his response, the Prothonotary noted that:[45]

Most importantly, while I do not have the PSIO of 27 October 2022, Ms Austin's material indicates that the "accuser" in that order is [the student]. If there is any chance that the protected party is one of the victims of Ms Austin's stalking and harassment convictions then I must show due caution in reviewing these proposed documents under r 27.06 [of the Rules]. It would be an abuse of process for the proposed plaintiff to use this judicial review process to further harass and intimidate the victim, particularly where the end goal is to challenge an order designed to protect the victim from the proposed plaintiff. Having named one such victim as a defendant in the originating motion I take into consideration the serious impact this might have on him.

If strong grounds for review were elucidated in the written materials I could certainly overlook any requirement to give consideration to the impact on a proposed defendant. However, the Originating Motion and supporting documents do not identify an arguable basis for review. It is standard practice for an interim PSIO to be made without notice to the respondent. Having no notice is therefore not a ground for reviewing the decision unless evidence can be provided that it should have been.

...

In summary:

• There is a risk that the purpose of this proposed process is to use the Courts to further harass the proposed second defendant
• There is a risk that the proposed process will cause further harm to the proposed second defendant in circumstances where the plaintiff was convicted and imprisoned, in part, for stalking the defendant
• There are no discernable grounds for review and therefore no reasonable prospects of success (emphasis added)

1. On 23 February 2023, Dixon J dismissed the applicant's appeal of the Prothonotary's refusal.[46]
2. On 21 March 2023, the applicant's period of incarceration ended. She was released from a prison, namely the DPFC.[47]

1. On 20 April 2023, the applicant filed a notice of appeal.
2. On 10 May 2023, Keith JR convened a directions hearing. On that day, the Judicial Registrar ordered that the applicant serve an amended notice of appeal on or before 16 July 2023, accompanied by any further affidavits if required.
3. On 15 July 2023, the applicant filed an amended notice of appeal, accompanied by the third Austin affidavit.
4. On 11 August 2023, the respondent's solicitors, the Victorian Government Solicitor's Office (the 'VGSO') sent a letter to the applicant notifying her of deficiencies in her application seeking leave to appeal ('11 August letter'). In that letter, the respondent invited the applicant to either discontinue the proceedings or provide the respondent with a proposed further amended notice of appeal by 4:00pm on 18 August 2023.[48]
5. On 14 August 2023, the applicant emailed documents to the VGSO and the Court.[49] The documents included the 11 August letter and her first affidavit. In the covering email, the applicant emphatically rejected the respondent's invitation to discontinue the proceedings or provide an amended notice of appeal:[50]

The Victorian Government is at it again. The email below with attached letter was sent on Friday, 11 August 2023 - not long after they were in court saying I have no legal rights and deserve to be abused and destroyed. The amoral behaviour of the VGSO needs to be addressed and they need to be publicly held to account for their behaviour - behaviour which undermines the integrity of, and trust in, the justice system...

An amoral, abhorrent human being represented the VGSO in court on the day the email below was sent to me - the timing of, and content of the attachment to, that email shows that he represents the values held by the VGSO. I have attached the affidavit filed with the commencing documents - try reading it (you should note, among many other things, the obstruction engaged in by the Supreme Court, County Court and Magistrates' Court in the commencement of this appeal).

1. On 13 September 2023, the respondent filed a summons seeking an early determination of the applicant's application for leave to appeal and for the Court to refuse leave to appeal.
2. On 4 October 2023, Keith JR made orders listing the application for hearing on 21 February 2024. The hearing on 21 February 2024 proceeded as listed.

1. At the hearing, there was no controversy about determining the question of whether leave should be given to appeal at this point of the proceeding. Both parties made submissions on it. I am satisfied it is consistent with the overarching principles of the Civil Procedure Act 2010 (Vic) ('CPA') to determine this question now.
2. Section 109(2) of the Magistrates' Court Act provides that a party must initiate an appeal to the Supreme Court no later than 30 days after the Magistrates' Court order. Section 109(4) of the Magistrates' Court Act states that any application made after the 30-day period is to be considered an application for leave to appeal.
3. The appeal is out of time. The orders being appealed are as follows:

(a) in proceeding K11461342, the police interim PSIO was made on 14 June 2019, and the police varied interim PSIO was made on 27 October 2021. The applicant alleges that another PSIO was made on 27 October 2022. However, there is no evidence of this PSIO having been made. The police final PSIO in that proceeding was made on 29 November 2022;

(b) in proceeding G12353529, interim PSIOs were made on 26 August 2016 and 11 September 2017. A final PSIO in that proceeding was made on 28 September 2016;[51]

(c) in proceeding F11651093, an interim PSIO allegedly made on 11 May 2015.[52] There is no evidence of this. The respondent disputes it was made.

1. Aside from the police final PSIO issued on 29 November 2022, all other PSIOs have lapsed. The police final PSIO expires at midnight on 28 November 2027.[53]
2. For tardy applicants, ss 109(4) and 109(5) of the Magistrates' Court Act apply. Those sections state that:

(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.

1. In determining this question, I adopt the following principles given by McDonald J: [54]

In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal within the prescribed 30 day period was due to exceptional circumstances. However, even where exceptional circumstances are established the Court has an unfettered residual discretion as to whether leave to appeal should be granted.

The principles governing the exceptional circumstances threshold under s 109(5) of the Act are well-established:

(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;

(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;

(c) Although 'exceptional' is defined as meaning 'unusual, special, out of the ordinary course' in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to 'rarely occur' and 'perhaps be outside reasonable anticipation or expectation';

(d) The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;

(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;

(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;

(g) That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;

(h) The exceptional circumstances must relate solely to the explanation for the delay;

(i) By use of the expression 'exceptional circumstances', the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a 'significant hurdle', which requires a 'persuasive explanation', to be demonstrated by 'clear and cogent proofs'.

...

Section 109 embodies a clear statutory objective of ensuring that appeals from the Magistrates' Court are filed promptly. This objective would be rendered worthless if a party who establishes that his/her failure to file a notice of appeal within the prescribed 30 day period was due to exceptional circumstances, was thereafter entitled to file out of time irrespective of the period of further delay and the reason (or lack thereof) for the delay. Notwithstanding the policy underlying s 109, it does not follow that a party will automatically be denied leave to appeal by reason of a failure to file within 30 days of there being no exceptional circumstance preventing the party from filing. Each case turns on its own particular facts.

1. His Honour also considered whether the application had any prospect of success as an additional factor in determining the exercise of his discretion.[55] I will also consider the applicant's prospects of success when determining the exercise of my discretion.
2. I adopt the following principles given by Hargrave J on the exercise of discretion and the relevant questions:[56]

As appears above, s 109 places an onus upon an applicant for leave to appeal to demonstrate both exceptional circumstances and the lack of any material prejudice to the other parties. However, even if both limbs of this onus are satisfied, the court retains a discretion to grant or refuse leave. Section 109(5) provides that the court "may grant leave" if the two elements are established. This discretion is unfettered, and the court may take into account all relevant circumstances, within and outside the 30 day period.

Against this background, I proceed to consider the evidence and apply the law. As the review of the applicable law demonstrates, the court must answer three questions in order to determine [applicants'] application:

(1) Have exception circumstances been demonstrated?

(2) Will the grant of leave cause material prejudice?

(3) If there are exceptional circumstances and no material prejudice: Should the court exercise its discretion to grant leave?

Have exceptional circumstances been demonstrated?

1. The applicant submitted that the case's merits warrant an extension of time.[57] She submitted that the Court should grant an extension of time under r 58.11 of the Rules and ss 109(4), (5) of the Magistrates' Court Act.[58] In the hearing, the applicant summarised her reasons for the delay as being a) her incarceration and b) her 'fundamental' lack of relevant resources and information.[59]
2. The applicant submitted that she could not have filed the initiating documents any earlier than the date she had (20 April 2023). The applicant submitted that, whilst incarcerated, she attempted to commence the appeal soon after becoming aware of the police final PSIO on 7 December 2022. Specifically, the applicant claims that she:
   • requested 'PSIO appeal commencement forms' on 8 December 2022;
   • composed an email to the Supreme Court of Victoria and gave it to prison officers on 8 December 2022;
   • that the prison did not send her notice of appeal to the County Court until 20 December 2022; and
   • directed prison officers to send her email to the Magistrates' Court requesting to appeal on 21 December 2022 and that, therefore, she had provided notice of her intention to appeal the police final PSIO 22 days after the Magistrates' Court made it.[60]
3. In the hearing of this proceeding, the applicant gave further details explaining the delay between her release from prison and filing the application. Specifically, she noted that, in those five weeks, she was dealing with many personal and logistical challenges. This included finding a home, liaising with Centrelink, and dealing with 'widespread media reporting' relating to her matter. The applicant also added that she was preparing the initial documents for this application during this time.[61]

1. Regarding the police final PSIO, the respondent submitted that the applicant's application for leave to appeal, filed on 20 April 2023, was out of time by approximately three-and-a-half months.[62]
2. The respondent submitted that, pursuant to s 109(5)(a) of the Magistrates' Court Act 1989 (Vic) and Mako'ochieng v Kirk[63] , the onus is on the applicant to prove exceptional circumstances and that the Court should not exercise its discretion to grant leave to appeal out of time.[64] The respondent submitted that though exceptional circumstances may have applied between 29 November 2022 and 21 March 2023, when the applicant was incarcerated, such circumstances could not be said to have applied once the applicant had been released from prison.[65] At the time of her release, the applicant had received the police final PSIO and was aware of the relevant circumstances surrounding an application for leave to appeal that final PSIO.[66] The respondent submitted that the thirty days between the applicant's release (21 March 2023) and her filing for leave to appeal (20 April 2023) represents a 'gap' that she has not sufficiently explained.[67] The limitation period under s 109(2)(a) is "stringent". Given that the onus of establishing exceptional circumstances rests on the applicant's shoulders and that she failed to establish this, the extension of time application must fail.

1. 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.
2. The exceptional circumstances requirement is stringent. In Bucic v Arnej Pty Ltd, Mukhtar AsJ held that:[68]

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.

1. 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').[69]
2. The prescribed time is from the date the final order was made to the date 30 days after. That period is 29 November 2022 - 29 December 2022. The sum of the prescribed period and the part of the excess period during which time the applicant was incarcerated is 112 days. There was then a period after incarceration, namely, between 21 March 2023 and 20 April 2023. This is the period between the applicant's release and her filing of the appeal. That period amounts to precisely 30 days. This period does not count as a 'new' 30-day period. Rather, it is an additional set of days in the excess period. That is, with the clock running without pause from 29 November 2022 to 20 April 2024, all the time from 21 March to 20 April is in the excess period. The prescribed and excess periods are, together, 142 days.
3. 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).
4. 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).
5. For the above reasons, I am not satisfied that the applicant's failure to launch her appeal within time was due to exceptional circumstances.

Will the grant of leave cause the respondent material prejudice?

1. The applicant has stated in broad terms that granting an extension of time will not be prejudicial to the respondent.[70] Further details as to why the respondent would not be prejudiced by an extension of time for this application were not provided in her submissions dated 14 September 2023 and 1 December 2023.

1. The respondent submitted the prejudice he would suffer if leave were granted was to incur further legal costs.[71]

1. I am not satisfied that the respondent will suffer any prejudice by grant of leave to appeal that cannot be met by an order for costs.

Should the Court exercise its discretion to grant leave?

1. I am not satisfied that there are exceptional circumstances.
2. Moreover, it is futile to grant leave when the applicant has no real prospect of success. That is the case here. As discussed further below, her case is not arguable and she has not sufficiently identified a question of law. Leave to appeal will be refused. If I am wrong in refusing leave to appeal, then I would dismiss the appeal for the reasons below.

Should the appeal be dismissed pursuant to r 58.10(9)?

**(9) The Court may dismiss the appeal if satisfied that - **

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court

1. The next section of the ruling considers key issues raised by the applicant and relates to whether she has an arguable case on appeal or has sufficiently identified a question of law. The parties are in heated disagreement about this.

1. The applicant says there are questions of law in-line with her grounds of review. Among the questions of law are how the purpose of the PSIO Act is to be interpreted,[72] whether s 35 of the PSIO Act must be satisfied before granting an interim PSIO,[73] and the applicability of ss 16A,[74] 42,[75] 44,[76] 47,[77] 61,[78] and 178[79] of the PSIO Act. The applicant relies on these grounds in stating that the police final PSIO should be 'quashed'. She states that the 'permanent nature' of the PSIOs require that the interim PSIOs for proceeding K11461342, the interim and final PSIOs for proceeding G12353529, and 'any other PSIO' against the applicant be declared invalid.[80]

1. The respondent submitted that the applicant has no arguable case in relation to the interim and revoked orders.[81] He submitted that the applicant's appeal is out of time, lacks merit, concerns proceedings (in part) that the respondent was not a party to, and concerns previous unsuccessful challenges which have been recently overtaken by other events.[82] The respondent submitted that the only grounds of appeal that speak to the police final PSIO are grounds 4 and 5,[83] and that the only relevant questions of law posed by the applicant are questions 8 - 11.[84] The respondent says these grounds are based on falsities. The first falsity is that the applicant was not informed of the application for the final PSIO or the mention held on 29 November 2022.[85] The second falsity is that the Magistrate, in making the final order during the mention, acted unlawfully.[86]
2. Regarding the application of s 47, which is raised in the eighth question of law, the respondent stated that, given the lack of relevant evidence provided by the applicant at the time, the question does not succeed or perhaps even arise.[87] Regarding the application of s 44, raised in the ninth question of law, the respondent reiterates his submissions in relation to the ability of the Magistrate to make a final order during a mention as per s 44(2)(b) of the PSIO Act.[88] Regarding the tenth and eleventh questions, the respondent states that, though allegedly connected to ground 5, the questions they raise in relation to the applicability of s 61(1)(c) and 51(4) are disconnected to ground 5, which concerns procedural fairness.[89]
3. Turning now to some of the particular issues in dispute and whether the applicant has an arguable case or sufficiently identifies a question of law per r 58.10(9).

Are the interim PSIOs 'final orders' within the meaning of s 109(1) of the Magistrates' Court Act?

1. Section 109(1) of the Magistrates' Court Act provides for appeals to this Court on a question of law from a final order of the Magistrates' Court. The controversy here is whether the interim PSIOs are 'final orders' within the meaning of s 109(1).

1. The applicant submitted that the permanent nature of the police final PSIO entitles her to 'declarative relief' from all other interim and final PSIOs that the Magistrates' Court has made against her.[90]
2. In the amended notice of appeal, the applicant also listed an additional set of PSIOs that she challenges: all interim and final PSIOs given in proceeding F11651093, precisely, an interim PSIO supposedly issued on 11 May 2015.[91] The respondent stated that he was unaware of any PSIOs in proceeding F11651093.[92] The applicant, meanwhile, has not submitted any record of the Magistrates' Court making an interim or final PSIO in that proceeding. Concerning that PSIO, the applicant submitted:[93]

No one has been able to provide me with a copy of PSIO F11651093. No information about how it came into existence has been made available to me. It appears to be cloaked in secrecy.

1. Regarding the interim PSIOs, the respondent submitted that they are not final orders. He further submitted that parties may only appeal final orders per s 109 of the Magistrates' Court Act. Accordingly, the applicant cannot appeal the interim PSIOs under s 109.[94]

Analysis - are the interim PSIOs final orders?

1. Section 109(1) of the Magistrates' Court Act states as follows:

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.

1. Section 109 of the Magistrates' Court Act is to be understood as recognising the difference between a final order and an interlocutory order.[95] Final orders are those which finally determine the rights of the parties.[96]
2. 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.
3. 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:[97]

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.

1. 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.
2. 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 police 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.

Was the applicant 'on notice' of the police varied interim PSIO or the police final PSIO, and was notice required?

1. The applicant addresses an interim PSIO supposedly provided on 27 October 2022 in proceeding K11461342. This may relate to the police varied interim PSIO provided one year prior. However, the applicant has not clarified this. The applicant does not otherwise say whether she was notified of the police varied interim PSIO given on 27 October 2021. The applicant states that there was no attempt to contact or otherwise inform her about the 29 November 2022 hearing.[98]

1. Regarding the police varied interim PSIO issued on 27 October 2021, the respondent submitted that the applicant was served with a copy of the application and summons, but did not present at the hearing.[99] The respondent submitted that the applicant has not denied receiving the material concerning that proceeding.[100] At the time, the home address and email address of the applicant was recorded.
2. The mention at the Magistrates' Court was listed for 29 November 2022. The respondent submitted the applicant had not taken any steps to inform the Magistrates' Court of a change in her address for service.[101] The respondent also submitted that the applicant confirmed in her affidavit that she was aware the matter was listed for mention on 29 November 2022 and that, despite having been aware, neither requested adjournment nor took any steps to indicate that she would not be appearing.[102] The applicant failed to appear. The Magistrate made the police final PSIO on that date.[103]
3. The respondent submitted that, despite what has been stated by the applicant, the Magistrate did not make an interim PSIO on 27 October 2022 in proceeding K11461342.

Analysis - was the applicant on notice, and was she required to be?

1. Section 76(3) of the PSIO Act provides that the Court, in making a final PSIO, must give the protected person and the respondent a written notice of the information referred to in s 76(1) and any other prescribed information. Relevantly, the written notice must contain:

(a) the purpose, terms, and effect of the final order; and

(b) the consequence and penalties that may follow if the respondent fails to comply with the terms of that order; and

(c) that the protected person cannot give permission to contravene the final order.

1. Section 44(2)(b) provides that the Court may make an order for a final PSIO if the Court is satisfied that the respondent had been served with a copy of the application for a PSIO and did not attend the mention.
2. The applicant stated that she was first on notice of the police final PSIO on 7 December 2022, but did not receive it until 21 March 2023. The certificate of service exhibited to the Dwyer affidavit shows that she received it on 16 December 2022.[104]
3. It is common ground that the police final PSIO was provided to the applicant. The police final PSIO was compliant with the written notice requirements outlined in s 76 of the PSIO Act: exhibit "JFS-1" to the Swanwick affidavit, page 36.
4. 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.
5. The applicant has no arguable case regarding a lack of notice.

Did the Magistrate have the power to make the PSIO on 29 November 2022?

1. The applicant submitted that the hearing for a final PSIO on 29 November 2022 was an abuse of process.[105] She submitted that the proceeding denied her procedural fairness and deprived her of the right to a fair trial as per s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Part of the basis for this claim is that the applicant was incarcerated on the date of the hearing.[106] The applicant submitted that the Magistrate did not correctly exercise their power to make a final order under s 61 of the PSIO Act; that it was an error on the face of the record.[107] The applicant submitted that, in granting the police final PSIO, the Magistrate displayed a 'total and complete disregard' for the legislation that provides the Magistrates' Court of Victoria the power to grant PSIOs.[108] The applicant submitted that the Magistrate failed to act in alignment with the purpose of the PSIO Act as stated in s 1.[109] The applicant submitted that the improper use of the Magistrates' power resulted in granting an Order that 'severely' restricted the applicant's human and legal rights.[110]

1. The respondent submitted that the learned Magistrate was empowered to make the orders pursuant to s 61(1) of the PSIO Act.[111] The respondent submitted that, though the applicant was absent, and that the hearing was initially listed for mention, the Magistrate nonetheless had the power to make the police final PSIO. That an exception to s44(1) of the PSIO Act, which prohibits hearing a contested application for final order on a mention date, applied to the 29 November 2022 proceeding. Specifically, the exception given by s 44(2)(b) of the PSIO Act, which states that a Court is not prevented from making a final order on a mention date if the Court is satisfied that the respondent had been served with a copy of the application for a PSIO and did not attend court on the mention date.[112] The respondent submitted that s 44(2)(b) was enlivened, as the applicant had been served with a copy of the police final PSIO application filed on 27 October 2021, and that, on the mention date, failed to appear either by herself or by a representative on her behalf. Accordingly, the Magistrate had power to issue the police final PSIO pursuant to s 61(1) of the PSIO, with s 44(2)(b) acting to silence the operation of s 44(1) in the circumstances.[113]

Analysis - Did the Magistrate have the power to make the PSIO on 29 November 2022?

Whether the Magistrate exercised power in alignment with the purpose of the PSIO Act

1. I will first address the applicant's assertion that, in making the PSIO, the Magistrate did not act in alignment with the purpose of the PSIO Act as given by s 1(b) and that, accordingly, the PSIO restricted the applicant's human and legal rights excessively and without justification.
2. I reject that submission for the following reasons.
3. The applicant's submission hinges on the interpretation of section 1(b) of the PSIO Act.[114] Section 1 of the Act states as follows:

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.

1. I adopt the following principles given by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection:[115]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

1. 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.[116]
2. 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:[117]

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.

1. 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'.[118] 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:[119]

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.

1. 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:

(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.

1. 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).
2. The police final PSIO was entered into for the respondent. The respondent sought the PSIO to protect the student, 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 student 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.
3. 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.

Whether the Magistrate was able to make the order pursuant to sections 44(2) and 61(1) of the PSIO Act

1. The respondent submitted that the Magistrate exercised their power in accordance with sections 44(2)(b) and 61(1) of the PSIO Act. The applicant disputes this, stating that the Magistrate did not properly exercise the power given by s 61(1).
2. Section 61 of the PSIO Act states:

(1) 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.

1. Sections 44(1) and 44(2)(b) of the PSIO Act state:
   1. Mention date

(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 -

...

(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.

1. Turning first to s 44(2)(b) and the appropriateness of the hearing. The 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 final PSIO exhibited to the Swanwick affidavit 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).
2. 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 .[120]

Is there any utility in appealing a revoked order?

1. The applicant did not make any submissions as to the practical utility of appealing the revoked orders.

1. Regarding the final order issued in proceeding G12343529, which was made on 16 September 2016, the respondent submitted that the order was ultimately revoked and overtaken by the police interim PSIO issued on 14 June 2019. Accordingly, the applicant's challenge to that order is not arguable, and she will not suffer any substantial injustice if leave to appeal that order is refused.[121]

Analysis - is there any utility in appealing the revoked order?

1. There is no utility in appealing revoked orders as the orders have ceased to exist. This is similarly the case with orders that have expired.[122] There is no practical injustice in refusing leave appeal a revoked order.

Why the appeal is inarguable and does not sufficiently identify a question of law

1. I will conclude with reasons why the appeal is inarguable or does not sufficiently identify a question of law, and if leave to appeal were to have been given, I would have dismissed the appeal per r 58.10(9). These reasons ought be read together with the preceding section.

1. These questions address the purpose of the PSIO and Ground 1 also refer to the student. This proceeding is not between the applicant and the student. Further, as I discussed above, this matter is not amenable to mediation between the student 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

1. 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 police 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.
2. 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.
3. Question of law 12 is nonsensical.
4. 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.

1. 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.
2. Given the findings above, it is unnecessary to consider the other grounds on which the respondent contended the appeal be dismissed.

1. Rule 58.10(8) provides that if leave to appeal is refused, the Court shall dismiss the appeal. Leave to appeal is refused.
2. Had I not refused leave to appeal, I would have made orders dismissing the proceeding per r 58.10(9).

[1] Magistrates' Court proceedings K11461342, G12353529, and F11651093.

[2] Rule 58.11 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'); s 109(4) of the Magistrates' Court Act 1989.

[3] See e.g.: Austin v Dwyer [2023] VSCA 227; Austin v Dwyer [2023] VSC 76; Austin v Dwyer (Costs Ruling) [2020] VSC 18; Austin v Dwyer [2019] VSC 837; Austin v Dwyer v Same v Oscar Dobbs and County Court of Victoria [2019] VSCA 296; Austin v Dwyer [2018] VSC 770.

[4] The applicant has not made the application by summons but orally and in writing by her (first) affidavit, sworn on 19 April 2023, and her (first) submission filed on 14 September 2023.

[5] Affidavit of Fiona Austin, sworn on 19 April 2023 ('First Austin affidavit'), [3].

[7] Ibid, [10]; Affidavit of Jessica Frances Swanwick, sworn on 13 September 2023 ('Swanwick affidavit'), [13].

[8] Exhibit 'JFS-1' to the Swanwick affidavit, 11 - 12.

[9] Exhibit 'JFS-1' to the Swanwick affidavit, 13.

[10] Affidavit of Trent Dwyer, sworn on 3 November 2023 ('Dwyer affidavit'), [6].

[11] Exhibit 'JFS-1' to the Swanwick affidavit, 15.

[15] Swanwick affidavit, [16]. Note that in the Swanwick affidavit, the deponent stated that the date the applicant commenced proceeding S ECI 2018 00234 was 5 March 2018. This is a slip. The Court's records indicates that the date was, in fact, 3 July 2018.

[17] Ibid, [17]; see also: Austin v Dobbs [2019] VSC 355.

[18] Austin v Dobbs [2019] VSC 355, [48] - [50].

[19] Swanwick affidavit, [18]; Exhibit "JFS-1" to the Swanwick affidavit, 28.

[20] Swanwick affidavit, [18]; see: Exhibit "JFS-1" to the Swanwick affidavit, 30.

[26] Ibid, [22]; see: Austin v Dwyer [2020] HCASL 122.

[27] Exhibit "TD-1" to the Dwyer affidavit, 11; Swanwick affidavit, [23]; Exhibit "JFS-1" to the Swanwick affidavit, 32.

[28] Exhibit "JFS-1" to the Swanwick affidavit, 32.

[29] Swanwick affidavit, [24]; see also: Austin v Dwyer [2021] VSCA 306.

[31] Swanwick affidavit, [25]; Austin v Dwyer [2022] HCASL 65.

[34] First Austin affidavit, [12], [21].

[35] Director of Public Prosecutions v Austin [2022] VCC 1571, [121] - [128]; Exhibit "TD-1" to the Dwyer affidavit, p 45.

[37] First Austin affidavit, [18], [27].

[38] Exhibit "TD-1" to the Dwyer affidavit, p 52.

[39] Exhibit "AFA-1" filed on 20 April 2023 ('exhibit to the first Austin affidavit'), pp 247, 251, 252, 254.

[40] Exhibit to the first Austin affidavit, p 261.

[41] Exhibit to the first Austin affidavit, p 266.

[42] Swanwick affidavit, [28]; Applicant's outline of submissions, filed on 14 September 2024 ('Applicant's first outline of submissions'), [19], [88].

[43] Swanwick affidavit, [29] - [30].

[44] Exhibit to the first Austin affidavit, pp 281 - 282.

[47] First Austin affidavit, [20]; Dwyer affidavit, [14].

[48] Swanwick affidavit, [32]; Exhibit "JFS-1" to the Swanwick affidavit, 42. The deponent stated in her affidavit that the proposed amended form of appeal was to be sent by 4:00pm on 11 August 2023. However, the letter contained in the Exhibit states that date to be 4:00pm, 18 August 2023.

[49] Swanwick affidavit, [33]; Exhibit "JFS-1" to the Swanwick affidavit, 44 - 46.

[50] Exhibit "JFS-1" to the Swanwick affidavit, 44.

[51] Amended Notice of Appeal filed on 15 July 2023 ('ANOA'), p 4; Swanwick affidavit, [8].

[53] Exhibit 'JFS-1' to the Swanwick affidavit, 36.

[54] Mako'ochieng v Kirk [2017] VSC 459, [8] - [9], [14].

[55] Mako'ochieng v Kirk [2017] VSC 459, [45].

[56] Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [17] - [18].

[57] Applicant's first submissions, [24].

[59] Transcript of 21 February 2024 ("T"), 15:20 - 15:22.

[60] Applicant's first submissions, [6] - [8].

[62] Respondent's outline of submissions ('Respondent's submissions'), [22].

[63] [2017] VSC 459.

[68] [2015] VSC 568, [3] - [4].

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

[70] Applicant's first submissions, [20].

[72] Applicant's first submissions, [27], [35].

[81] Respondent's submissions, [19] - [20].

[85] Respondent's submissions, [26]; see also: T 7:25 - 8:6.

[86] Ibid, [26]; see also: T 7:25 - 8:6.

[90] Outline of Applicant's submissions filed 1 December 2023 ('Applicant's second submissions'), [50].

[93] Applicant's second submissions, [53].

[95] Dean's Pty Ltd v Laratae [2015] VSC 341, [19]-[27] ('Dean's Pty Ltd') and the cases there cited.

[96] Bienstein v Bienstein (2003) 195 ALR 225 at 230 per McHugh, Kirby, and Callinan JJ.

[97] (2001) 208 CLR 199, [15].

[98] Applicant's second outline of submissions, [65].

[104] Exhibit "TD-1" to the Dwyer affidavit, p 52.

[105] Applicant's second outline of submissions, [45].

[108] Applicant's first submissions, [93].

[111] Respondent's submissions, [34], [36].

[112] Respondent's submissions, [35] - [36].

[115] [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936 at [14]; see also CIC Insurance Ltd v Bankstown Football Club Ltd [2007] HCA 2; (1997) 187 CLR 384 at 408; 141 ALR 618 at 634-5; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 361 ALR 206 at [64].

[117] Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2226 (Robert Hulls, MP).

[119] Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2226 (Robert Hulls, MP).

[120] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [66].

[121] Respondent's submissions, [20].

[122] See: Wass v Director of Public Prosecutions (NSW) [2023] NSWCA 71; (2023) 111 NSWLR 210, [59] - [60].