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[2019] VSCA 296
Court of Appeal (Vic)
2019-12-13
Whelan JA, Kyrou JA
Original judgment source is linked above.
Austin v Dwyer [2019] VSC 545 (Coghlan JA)
Austin v Dobbs (No 2) [2019] VSC 588 (Ginnane J)
JUDICIAL REVIEW - Applications for leave to appeal judgments concerning judicial review of decisions of Magistrates' Court re adjournment, recusal and 'special witness' orders and decision of County Court re extension of time for appeal - Leave refused on all applications - Personal Safety Intervention Orders Act 2010 s 96, Magistrates' Court Act 1989 s 109, Crimes Act 1914 (Cth) ss 15Y, 15YAB.
PRACTICE AND PROCEDURE - Applications for leave to appeal costs orders - Section 111 Personal Safety Intervention Orders Act 2010 does not apply to proceedings for judicial review - Traditional reluctance to grant leave re costs continues under current legislative regime - Leave refused on all applications - Personal Safety Intervention Orders Act 2010 s 110 - AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227, AFP v Opal Storm [2018] VSCA 301 applied.
1 On 26 August 2016 a young man, Oscar Dobbs, obtained an interim intervention order against his former high school teacher, Fiona Austin. A final order was made on 28 September 2016.
2 Since those orders were made, there have been over 50 court hearings or court hearing dates in relation to the matter. Ms Austin has been charged with 14 offences, six of which allege breach of the orders. She spent almost a year on remand when her bail was revoked after alleged contraventions of the orders and a condition of her bail. She has appeared either in person or represented by lawyers on many occasions in the Magistrates' Court. Appeals have been instituted in the County Court. Ms Austin has issued five judicial review proceedings in the Supreme Court. Four of those judicial review proceedings have been decided against her and are now the subject of applications for leave to appeal before this Court. The criminal proceeding against Ms Austin is fixed for trial in the County Court in May 2020.
3 The substantive complaints made by Mr Dobbs against Ms Austin which were the basis for the intervention orders have never been the subject of a concluded contested hearing and determination. Ms Austin asserts that this is what she has always sought but has never been able to obtain. She attributes this to lies and perjury by Mr Dobbs and the police; criminal conduct by the police in perverting the course of justice; judicial misconduct; and breaches of fiduciary duties, negligence and incompetence by lawyers who have acted for her.[1] As will be seen, there are other potential explanations for what has occurred.
The relevant proceedings, judgments and applications
4 We begin by identifying the relevant Magistrates' Court proceedings, the four relevant judgments in the Trial Division, and the six applications for leave to appeal now before this Court. We will then outline the relevant sequence of events, before addressing each of the applications before this Court.
5 In the Magistrates' Court there are, or were, two relevant proceedings, and a third which should be noted. The two relevant proceedings are:
(a) a proceeding numbered G 12353529 under the Personal Safety Intervention Order Act 2010 ('the PSIO Act'). This is the proceeding in which intervention orders against Ms Austin on the application of Mr Dobbs have been made ('the intervention order proceeding'); and
(b) a proceeding numbered G 13348766, which is a criminal proceeding concerning 14 charges on a charge sheet filed by the informant, Detective Sergeant Trent Dwyer, against Ms Austin for (amongst other things) stalking Mr Dobbs, contraventions of an intervention order and contraventions of a bail condition ('the criminal proceeding').
6 The third Magistrate's Court proceeding, which should be noted, is proceeding numbered K 11461342. This is also a proceeding under the PSIO Act. In that proceeding an interim intervention order prohibiting contact with Mr Dobbs was made against Ms Austin on 14 June 2019 on the application of police ('the further intervention order proceeding').
(a) a judgment of Derham AsJ in proceeding S ECI 2018 00261 in which he summarily dismissed an originating motion filed by Ms Austin, naming Mr Dwyer and the Magistrates' Court of Victoria as defendants ('the Derham AsJ judgment');[2]
(b) a judgment of Ginnane J in proceedings S ECI 2018 00234 and S ECI 2018 00235 in which he dismissed two originating motions filed by Ms Austin, naming Mr Dobbs, the County Court of Victoria and the Magistrates' Court of Victoria as defendants ('the Ginnane J judgment');[3]
(c) a judgment of Coghlan JA (sitting in the Trial Division) in proceeding S ECI 2018 02859 in which he summarily dismissed an originating motion filed by Ms Austin, naming Mr Dwyer and the Magistrates' Court of Victoria as defendants ('the Coghlan JA judgment');[4] and
(d) a judgment of Ginnane J in which he made costs orders concerning the two proceedings the subject of his judgment referred to above ('the Ginnane J costs judgment').[5]
8 In all the proceedings which were the subject of these judgments, the courts named as defendants took the usual course of playing no active role and abiding the outcome. Hereafter, when we refer to a defendant we are referring to either Mr Dobbs or Mr Dwyer as applicable.
9 Before this Court now are the following applications:
(a) An application for leave to appeal from the Ginnane J judgment insofar as he dismissed an application for judicial review of a decision of Judge Taft in the County Court on 6 June 2018 striking out an appeal lodged by Ms Austin in relation to orders made in the intervention order proceeding on the basis that the appeal was out of time.[6] There is a further application for leave to appeal the costs order made by Ginnane J against Ms Austin in that proceeding.[7]
(b) An application for leave to appeal from the Ginnane J judgment insofar as he dismissed an application for judicial review of decisions made by magistrates on 15 May 2018 and on 21 January 2019 adjourning the hearing before them that day.[8] In this proceeding Ms Austin has also filed an application seeking an order that the intervention order proceeding be stayed until this application for judicial review and 'the related underlying proceedings have been concluded'. In both this proceeding and that referred to in para (a) above Ms Austin has given notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). Ms Austin has also brought a further application for leave to appeal an order Ginnane J made that there be no order as to costs in that proceeding.[9]
(c) An application for leave to appeal from the Derham AsJ judgment in which he dismissed an application for judicial review of a decision made by a magistrate on 15 May 2018 adjourning the criminal proceeding.[10]
(d) An application for leave to appeal from the Coghlan JA judgment in which he dismissed an application for judicial review of a special witness declaration made by a magistrate on 10 December 2018 in the criminal proceeding.[11]
10 The two applications concerning Ginnane J's substantive determinations were heard on 17 September 2019. The four applications concerning Ginnane J's costs determinations, the Derham AsJ judgment and the Coghlan JA judgment, were heard on 11 November 2019.[12]
11 Ms Austin considers herself to be the victim of a gross injustice. She characterises the conduct of everyone concerned in her matters in highly negative terms. Whilst we have had regard to the material she has filed in support of her applications, and will refer to her own account of events from time to time, in order to avoid having to deal with descriptions of events which might, upon full analysis, be found to be tendentious, in this outline we will substantially confine ourselves to the sequence of events revealed by the relevant judgments and the court documents.
12 On 26 August 2016 Mr Dobbs applied for an intervention order against Ms Austin at the Melbourne Magistrates' Court. At the time of the application he was 20 years old. He described his relationship with Ms Austin by saying that she was his former high school teacher. The conduct of which he complained was described as follows:
Fiona continues to message me via social media threatening suicide.
These messages cause me anxiety.
...
Over the past two years she has consistently behaved this way towards me.[13]
13 An interim order was made, and it became a final order on 28 September 2016.[14] The final order prohibited Ms Austin, amongst other things, from stalking Mr Dobbs, publishing information about him on the internet or failing to remove such information within 48 hours, and contacting or communicating with him. The order was expressed to expire on 27 September 2017. The final order contained the following notations:
The respondent was served with a copy of the Application and Summons.
The respondent was not present at the hearing.
The respondent did not agree to this order being made.
14 The orders referred to were made in the intervention order proceeding. According to Ms Austin, the first occasion upon which she was made aware of any proceedings against her was on 3 October 2016 when police served the final intervention order on her at her work place.[15]
15 Ms Austin has been charged with 14 offences. These are the subject of the criminal proceeding. Amongst those charges, is a charge that between 3 and 12 October 2016 she failed to comply with the intervention order by 'continuously attempting to contact Oscar Dobbs via Facebook Messenger'.[16] She is also charged with failing to remove material about Mr Dobbs from the internet within 48 hours of being served with the final order.[17]
16 On 17 October 2016 Mr Dwyer and three other police officers arrested Ms Austin at her parents' home, where she was then living. They undertook a search and seized a number of items, including her mobile phone and her laptop computer. She was charged with offences and bailed the next day.[18]
17 The offences with which Ms Austin was charged on 18 October 2016 were (in summary):
(1) Stalking Mr Dobbs between October 2014 and August 2016.
(2) Using a carriage service to harass Mr Dobbs between October 2014 and August 2016.
(3) Stalking Mr Dobbs' mother between November 2014 and March 2016.
(4) Using a carriage service to harass Mr Dobbs' mother between November 2014 and March 2016.
(5) Contravening the intervention order by continuously attempting to contact Mr Dobbs via Facebook Messenger between 3 and 12 October 2016.
(6) Failing to remove from the internet information concerning Mr Dobbs within 48 hours of being served with the final intervention order in contravention of that order.
18 Subsequently, Ms Austin was charged with the following further offences:
(7) Contravening of an intervention order on 1 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(8) Contravening of a bail condition on 1 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(9) Contravening of an intervention order on 9 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(10) Contravening of a bail condition on 9 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(11) Contravening of an intervention order on 11 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(12) Contravening of a bail condition on 11 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(13) Contravening of the intervention order on 14 November 2016 by contacting Mr Dobbs via Facebook Messenger.
(14) Contravening of a bail condition on 14 November 2016 by contacting Mr Dobbs via Facebook Messenger.[19]
19 Ms Austin applied for a re-hearing of the intervention order which had been made in her absence, and which she contends was made without any notice to her. The re-hearing application was to be heard at the Melbourne Magistrates' Court on 7 December 2016. Ms Austin was arrested by Mr Dwyer when she attended the Court that day.[20] Ms Austin's bail was revoked. She was taken to the Dame Phyllis Frost Centre and held on remand. She never applied for bail. She was not released on bail again until November 2017.
20 A 'Courtlink' printout of the Melbourne Magistrates' Court records that on 17 February 2017 a rehearing application in the intervention order proceeding was refused.[21]
21 Magistrates' Court and County Court records indicate that an appeal was lodged on behalf of Ms Austin on 10 March 2017.[22] Ms Austin says she does not know what this appeal was about. At the time she had a solicitor, Nadia Giorgiannis, acting for her.[23] It is unclear from the material what eventually occurred in relation to that appeal.
22 Hearings while Ms Austin was on remand were complicated by her refusal to appear by audio-visual link.[24]
23 The intervention order made on 28 September 2016 was due to expire on 27 September 2017. On 11 September 2017 Mr Dobbs applied for and obtained a further interim order in the intervention order proceeding extending the order made on 28 September 2016 until final order.[25] In relation to the grounds for that order, Mr Dobbs stated in his application:
Current order expires on 27.9.17. The resp is currently on remand for the criminal matters - stalking which have not yet finalised at Court. I believe that her behaviour towards me will continue if she was to be released and no order was in place.
24 On 21 November 2017 a contested hearing of the criminal proceeding began at the Melbourne Magistrates' Court before Magistrate Keil. Mr Dobbs gave evidence. His evidence in chief was not completed that day. Ms Austin was represented by counsel. At the conclusion of that day's hearing Ms Austin was granted bail. The contested hearing was to resume on 15 May 2018.[26]
25 On 23 February 2018 Ms Austin (apparently acting for herself) made an application to revoke orders made on '26/8/16 and 8/9/17'.[27]
26 On 5 March 2018 Ms Austin (again apparently acting for herself) filed a notice of appeal to the County Court in relation to intervention orders said to have been made 8 September 2017, 28 September 2016, and 26 August 2016.[28] Mr Dobbs was named as the respondent. The reference to the order of 8 September 2017 was presumably intended to be a reference to the interim order made on 11 September 2017.
27 On 15 May 2018 the hearing of the criminal proceeding resumed before Magistrate Keil.
28 Ms Austin's account of what happened prior to the resumption of the hearing on 15 May 2018 is as follows:
I met with my Barrister, Neville Rudston, at 8.45 am at the Melbourne Magistrates' Court. He could not remember what I looked like, so he had me paged. My first contact with Neville was on 21 November 2017. I did not meet him or speak to him until court proceedings had commenced that day. My only other contact with him was on the morning of the 15 May 2018, when he told me he had not done any work on the case and did not have a defence strategy. My lawyer, Elanor Peattie, has also not done any work on the case since 21 November 2017. Neville's comments to me on the morning of 15 May 2018, confirmed my decision to cease their legal representation of me.[29]
29 There is a transcript of the hearing on 15 May 2018.[30]
30 At the commencement of the hearing on 15 May 2018 Ms Austin's counsel informed Magistrate Keil that he and those who instructed him were 'unable to continue to represent Ms Austin'. He made reference to efforts which he said had been made on Ms Austin's behalf, and was asked by the Magistrate whether the consequences of not being represented had been explained to Ms Austin. Counsel told the Magistrate that he had not explained the consequences, and then said:
In any event, I know it's Ms Austin's very firm wish, she will be applying to adjourn today. As I understand it, that may well mirror the application of my learned friend.
31 The police prosecutor then submitted to the Magistrate that in his view the matter could not proceed as Ms Austin had informed him that morning that 'everything, every word is in issue'. The Magistrate referred to events which had occurred on the previous occasion and expressed the concern that he might have to recuse himself on the basis of apprehended bias. The police prosecutor submitted that the matter should start 'fresh' before a 'different judicial officer'. He said that things which had previously been conceded 'are not conceded anymore'. He submitted that if everything was going to be contested then the matter would go for at least five days. He also indicated that an application would be made to have Mr Dobbs declared a protected witness, in which case Ms Austin would not be able to cross-examine him and there might be a need for the Court to make an order for legal aid.
32 Ms Austin complained to the Magistrate about the incompetence of her lawyers, and also complained about the incompetence of the police. She resisted the suggestion that the Magistrate should be 'changed', asserted that there was no reason for the matter to be adjourned, and said that it should continue. The Magistrate said that the time which had been allocated to the matter was not sufficient. Ms Austin made further complaints in relation to the police, her lawyers, and Corrections officers. She accused Mr Dwyer of lying. She made complaints about the Magistrates' Court staff. When the Magistrate indicated that he was going to adjourn the matter until 21 January, Ms Austin stated that she wanted her bail to be 'over' as she did not want to be on bail for all of that time.
33 Both the criminal proceeding and the intervention order proceeding were adjourned by Magistrate Kiel to 21 January 2019.[31]
34 On 28 May 2018 Ms Austin applied for a suppression order in the County Court appeal she had lodged on 5 March 2018 in relation to the intervention orders made in August and September 2016 and September 2017.[32] The appeal itself was then listed for hearing on 10 September 2018. The suppression order application came on before Judge Taft on 6 June 2018.
35 Judge Taft struck out the appeal. The decision was recorded as follows:
Appeal struck out - no jurisdiction.
Matter struck out as appeal lodged out of time.
Order that the listing of the matter for appeal on 10/09/2018 be vacated.[33]
36 On 1 July 2018 Ms Austin filed an originating motion seeking judicial review in relation to what she described as Judge Taft's failure on 6 June 2018 to exercise the discretion available to him to allow an appeal in exceptional circumstances when lodged out of time. On the same day, she filed a separate originating motion seeking judicial review of Magistrate Keil's decision on 15 May 2018 to adjourn the hearing of the intervention order proceeding. On 4 July 2018 she filed a third originating motion seeking judicial review of Magistrate Keil's decision on 15 May 2018 to adjourn the hearing of the criminal proceeding.
37 On 30 August 2018 Clayton JR rejected an application by Ms Austin for an order for substituted service on Mr Dobbs. Ms Austin successfully appealed that decision and Garde J ordered substituted service by email upon Mr Dobbs' spouse.[34] In the course of his judgment Garde J referred to the fact that Ms Austin was seeking an injunction restraining the resumption of the hearing in the Magistrates' Court on 21 January 2019 until her appeal (which had been struck out subject to judicial review) in the County Court had been completed.[35]
38 On 30 November 2018 the originating motion seeking judicial review of Magistrate Keil's decision on 15 May 2018 to adjourn the criminal proceeding came before Derham AsJ. The defendant sought summary dismissal. Amongst the criminal charges, there are indictable offences triable summarily. In the course of the hearing before Derham AsJ, Ms Austin maintained that she did not agree to a summary hearing of those charges.[36]
39 Derham AsJ delivered judgment summarily dismissing the originating motion on 10 December 2018. We address the reasons he gave below.
40 On the same day that Derham AsJ delivered judgment (10 December 2018), the parties were before Magistrate Gillian for a mention in relation to the adjourned hearing of the criminal proceeding. It seems that counsel who had previously appeared on Ms Austin's behalf had consented to the indictable offences (the two charges of stalking and the two charges of using a carriage service to harass) being dealt with summarily. At the hearing on 10 December 2018 Ms Austin advised the Court that she had not consented to the charges being dealt with summarily. At that hearing Magistrate Gillian made an order under s 15YAB of the Crimes Act 1914 (Cth) declaring both Mr Dobbs and his mother to be 'special witnesses'. The Court ordered that a person be appointed to appear on Ms Austin's behalf for the purpose of cross-examining those special witnesses should she be unrepresented by choice.[37]
41 Section 15YAB of the Crimes Act 1914 (Cth) relevantly provides that in a proceeding for a Commonwealth offence the court might declare a person to be a special witness if satisfied that the person was unlikely to be able to give satisfactory evidence in the ordinary manner because of 'intimidation, distress or emotional trauma'.
42 Rule 22 of the Magistrates' Court Criminal Procedure Rules 2009 provides for a form (Form 12) to be filed with the Registrar of the Court when a request is made for a contested summary hearing. Amongst the questions asked on that form is whether the accused consents to summary jurisdiction. Referring to an attendance at the Melbourne Magistrates' Court on 14 January 2019, Ms Austin says the following:
Magistrate Studham accepted the Form 12 dated 29 December 2018 I had submitted to the Court stating that I do not agree to the matter being heard summarily. Ms Sargeant from the OPP came to the court room and provided dates for the movement of the matter to the County Court of Victoria.
It was ordered that the prosecution is to provide me with a copy of the brief by 15 February 2019 and a committal mention will be held on 2 April 2019.[38]
43 On 21 January 2019 the intervention order proceeding came before Magistrate Kilias. Ms Austin says in relation to that hearing:
I had applied to have an adjournment until after the judicial review process had been completed. If my application was rejected, the fully contested hearing should have taken place.[39]
44 Ms Austin says that Mr Dobbs did not appear and that the police prosecutor asked to have the matter adjourned to the same date as the committal mention, being 2 April 2019.[40] Magistrate Kilias adjourned the matter as requested by the police prosecutor. One of Ms Austin's complaints in relation to this hearing is that the police were not a party to the intervention order proceeding and should not have been heard.
45 In early 2019 Ms Austin was given leave to add to her originating motion concerning Magistrate Keil's adjournment of the intervention order proceeding on 15 May 2018, a complaint in relation to Magistrate Kilias' adjournment on 21 January 2019.
46 The judicial review proceedings concerning Judge Taft's striking out of the County Court appeal, and concerning the Magistrates' decisions on 15 May 2018 and 21 January 2019 in relation to the intervention order proceeding, were heard by Ginnane J on 8 March 2019. He delivered judgment on 29 May 2019. He ordered that the proceeding in each case be dismissed. We address the reasons he gave below.
48 Section 145 of the Criminal Procedure Act 2009 provides that where an accused is committed for trial on indictable offences, related summary charges must be transferred to the court to which the accused has been committed for trial. Section 242 then provides that that court may, after a plea of guilty or a finding of guilt, hear and determine the summary charges, in a summary procedure and having the power to admit evidence led on the trial of the indictable offences. The Court also has the power to transfer the summary charges back to the Magistrates' Court. Thus, what will occur, as matters presently stand, is that there will be a trial before a jury on the indictable charges, being the two stalking charges and the two carriage service charges, and, after that trial the County Court will either hear and determine the summary charges or transfer them back to the Magistrates' Court.
49 On 6 June 2019, the informant in the criminal proceeding, Mr Dwyer, applied for an intervention order in favour of Mr Dobbs. That is the further intervention order proceeding. On 14 June 2019 an interim intervention order was made. An application made by Ms Austin to permanently stay the proceeding was refused. On 22 July 2019 Ms Austin filed an originating motion seeking judicial review of those orders. That proceeding is presently pending in the Trial Division.
50 On 17 December 2018 Ms Austin had filed an originating motion seeking to set aside the special witness declaration of 10 December 2018. On 1 April 2019 Daly AsJ dismissed a summary judgment application brought by Mr Dwyer.[43] The originating motion and a further application for summary judgment by Mr Dwyer then came before Coghlan JA. On 16 August 2019 Coghlan JA summarily dismissed Ms Austin's originating motion concerning the special witness declaration. We address his reasons below.
51 Derham AsJ's judgment concerned Ms Austin's application for judicial review of Magistrate Keil's decision on 15 May 2018 to adjourn the criminal proceeding.
52 Prior to the hearing before Derham AsJ, directions hearings were held before a judicial registrar. The registrar ordered that any application for summary dismissal be listed on a specified date. Mr Dwyer, the defendant in that proceeding, filed and served affidavits and an outline of submissions seeking summary dismissal. No summons seeking that relief was filed. The matters then came before Derham AsJ on the date the registrar had fixed.
53 Ms Austin resisted the summary dismissal application submitting, amongst other things, that the defendant ought to have proceeded by way of summons. Ms Austin also sought to have this originating motion proceeding adjourned to be heard together with her other two originating motion proceedings.
54 Derham AsJ set out the nature of the application;[44] and then referred to the two proceedings in the Magistrates' Court, the intervention order proceeding and the criminal proceeding.[45] He referred to the other originating motions which Ms Austin had filed.[46] Derham AsJ then set out some procedural background,[47] before reviewing in some detail the nature of judicial review,[48] and the principles which apply in relation to a self-represented litigant.[49]
56 At the time of the hearing before Derham AsJ, Mr Dobbs had not been served, and Derham AsJ observed that at that time it was not known whether he would be able to be served.[52] He accordingly concluded that there was no utility in an adjournment to enable all three then pending originating motion proceedings to be heard together.[53]
57 In relation to the substantive matters raised in the application concerning the Magistrate's decision to adjourn the hearing on 15 May 2018, Derham AsJ's relevant conclusions were as follows:
It is plain from the transcript that the Magistrate did correctly recuse himself from further hearing of the criminal charges proceeding. It is apparent from the submissions made by Counsel for the plaintiff that evidence had been tendered in Court previously, purportedly by consent. The Magistrate indicated, as I have said, that an objective observer might conclude that he might be biased, that is to say, it was a case of what is described in the law as 'apprehended bias' and it was proper in those circumstances for the Magistrate to recuse himself.
That recusal brought with it the necessity to adjourn the hearing of the criminal charges proceeding. It also appears that the time allowed for the continued hearing of the criminal charges was two days. Once the plaintiff made it clear that she required every witness to be called, and there were about 15 witnesses, it was clear that the trial would last longer than two days. There is no error involved in these circumstances in requiring the criminal charges to be adjourned to a date and time when a different Magistrate could hear the charges over a longer period.[54]
58 Derham AsJ concluded that there was no utility in adjourning the hearing of the proceeding or to require that a summons be issued, as it was clear that the application had no real prospect of success. He accordingly concluded in his judgment delivered on 10 December 2018 that the proceeding should be summarily dismissed.
59 Derham AsJ made an order dismissing the proceeding on 1 April 2019. He also made an order that Ms Austin pay one-half of Mr Dwyer's costs of the proceeding. In 'Other Matters' he explained the costs order which he made. In substance, the explanation was that the defendant's failure to issue a summons for summary judgment warranted a departure from the settled practice that costs should follow the event and that a successful litigant should receive their costs. Derham AsJ relevantly concluded:
The failure on the part of the first defendant to issue a summons for summary judgment in accordance with the Rules needs, in my view, to be reflected in the order for costs. The failure by the first defendant to follow the correct procedure indicates a somewhat high handed approach to the litigation.
In the circumstances of this case, I consider the general rule should be modified in favour of the plaintiff so that she is to pay only one half of the first defendant's costs.
60 When explaining the order he made in the 'Other Matters', Derham AsJ also referred to submissions made by Ms Austin as to the effect of the proceedings upon her personally.
61 The two originating motions concerning the intervention order proceeding, being the one concerning Judge Taft's striking out of the appeal, and the one concerning the two adjournments by the Magistrates of the intervention order proceeding on 15 May 2018 and 21 January 2019, were heard by Ginnane J on 8 March 2019. Mr Dobbs was represented. Ms Austin appeared for herself.
62 Ginnane J delivered a single judgment in relation to both of the originating motions on 29 May 2019. Before turning to that judgment it is necessary to refer to the relevant provisions of the PSIO Act and the Magistrates' Court Act 1989 ('the MC Act').
63 Section 91 of the PSIO Act provides that a party to a proceeding under that Act may appeal against an order of the court in the proceeding. Section 92 relevantly provides that that appeal must be to the County Court. Section 93 provides for the filing of a notice of appeal, and provides in subsection (2) that that notice must 'be filed within 30 days after the date the relevant decision was made'. Section 96 provides that an appeal is by way of re-hearing. Section 98 provides that the provisions of the MC Act 'so far as applicable and with any modifications and adaptions as are necessary extend and apply to appeals under this Division'. Section 126 provides that, with specified exceptions, pt 5 of the MC Act and any rules made under that Act do not apply to proceedings under the PSIO Act. Section 109 of the MC Act is one of the specified exceptions.
64 Section 109 of the MC Act relevantly provides as follows:
(1) A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(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;
...
(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.
66 In substance, Ms Austin contended that Judge Taft had failed to exercise a discretion available to him to allow an appeal out of time where exceptional circumstances were demonstrated. Ms Austin's contention was that the power to extend time was to be found in s 109 of the MC Act, incorporated into the relevant provisions of the PSIO Act by ss 98 and 126.
67 Before Ginnane J, counsel for Mr Dobbs submitted that there had been no power to extend time, as the provisions of s 109 of the MC Act concerning appeals on a question of law to the Supreme Court were not applicable to the right of appeal to the County Court by way of re-hearing provided for in the PSIO Act.
68 Ginnane J concluded that Judge Taft had been correct to conclude that there was no power to extend time in relation to an appeal brought by a notice under s 93 of the PSIO Act.
In reaching my conclusion as to the absence of any avenue for extending the time for an appeal I refer to the following features of the Act. The appeal contemplated by s 93 is by way of rehearing. Section 98 states that the provisions of the Magistrates' Court Act 'so far as applicable and with any modifications and adaptations as are necessary extend and apply to appeals under this Division'. But those words do not change the character of the appeal.
Nor does s 126 lead to the conclusion that the 30 day appeal period provided for in s 93(2)(c) can be extended. Section 109 of the Magistrates' Court Act to which it refers concerns only appeals on questions of law, whereas the appeal to the County Court is by way of rehearing. The words of s 98 of the Act extend and apply the provisions of the Magistrates' Court to appeals under Division 11, which include s 93 appeals 'so far as applicable and with any modifications as are necessary'. That is not sufficient to apply the exception in s 109(5) to a fundamentally different form of appeal.
The provisions for an extension of time for an appeal on a question of law contained in s 109(5) are not applicable to appeals by way of rehearing which have no counterpart in the Magistrates' Court Act.[58]
70 Ginnane J also relied to some extent on an earlier decision of Richards J in Carroll v Browne.[59] The legislation considered there was closely analogous to the relevant legislation here, but it had been common ground in that case that there was no power to extend time. Ginnane J did endorse Richard J's explanation of why that was so, being the need for certainty in this context.
71 Ginnane J then turned to the second originating motion, concerning the adjournments of the intervention order proceeding on 15 May 2018 and 21 January 2019.
73 Ginnane J recorded that Ms Austin's submissions before him principally focused on the hearing on 21 January 2019, Ms Austin contending that Magistrate Kilias on that day should have either struck out or permanently stayed the intervention order proceeding. Ginnane J said the following in relation to the submissions made before him by Ms Austin:
When asked by the Court what Magistrate Keil should have done on 15 May 2018 and what Magistrate Kilias should have done on 21 January 2019, the plaintiff stated that, on 15 May, Magistrate Keil should have heard the matter rather than acceding to the prosecution's request to adjourn it. She stated that, on 21 January 2019, Magistrate Kilias should have stayed the matter permanently as an abuse of process, though she admitted that she had not in fact asked for such a stay and had instead asked for the matter to be adjourned until after the hearing of these judicial review proceedings. She however insisted that Magistrate Kilias should have stayed the matter on his own motion, as she was an unrepresented litigant.[62]
74 In relation to the adjournment on 15 May 2018, Ginnane J's conclusions were similar to those of Derham AsJ, as Ginnane J himself expressly recorded.[63] He said:
The Magistrate did not hear the final intervention order application for two reasons: first he decided that he should disqualify himself because of his involvement in previous hearings that he had conducted and secondly because the Court time allocated was insufficient. The Magistrate had to determine whether the hearing should proceed. He focused on the hearing of the criminal charges, but his reasoning applied equally to the civil intervention order proceedings.
Once the Magistrate decided that he should not hear the charges and that there were insufficient days allocated to complete the matter, then he was justified in taking the course that he did. The Magistrate heard submissions from the plaintiff about the considerable delay that had occurred in dealing with the intervention proceedings. But he decided that he should not hear the proceedings, and he therefore had no option but to adjourn them.[64]
75 In relation to the decision on 21 January 2019 Ginnane J recorded that Ms Austin's complaint was put differently before him to the way it had been articulated in the grounds included in her amended originating motion. What was put before him was that the Magistrate on 21 January 2019 should have dismissed the intervention order proceedings as an abuse of process on his own initiative.[65] Ginnane J observed that the Magistrate adjourned the proceedings on 21 January 2019 because he understood that neither the prosecution nor Ms Austin wished the hearing to proceed on that day.[66] Ginnane J said:
The plaintiff contended that she did not realise that she could seek to have the whole proceeding stayed. Her application to the Magistrate was to adjourn the intervention proceedings until after these judicial review proceedings. He did adjourn it until 2 April 2019 for a mention.[67]
76 Ginnane J referred to authorities concerning the assistance a court might give to an unrepresented litigant, including Tomasevic v Travaglini[68] and _Matsoukatidou v Yarra Ranges Counci_l[69] and to the fact that the court in rendering that assistance had to be careful not to cross the 'boundary' required to maintain both the appearance and reality of neutrality.[70] Ginnane J then relevantly concluded:
In my opinion, had the Magistrate done what the plaintiff asserted he should have done, the 'boundary' identified by Bell J would have been crossed. By raising applications that he thought that the plaintiff should have made, the Magistrate would have ceased being an impartial arbiter and would have instead begun to act as advocate for the plaintiff. To strike out a proceeding to assist a self-represented litigant, in the absence of an application by a party, would result in the surrender of judicial neutrality.
The plaintiff did not apply to have the proceeding dismissed as an abuse of process. Both sides requested that the hearing not proceed on that day.
I do not consider that the Magistrate was obliged to dismiss the proceeding of his own motion as an abuse of process. The Magistrate did not make any jurisdictional error in failing to do so in view of the submissions that were made to him that the matters should not proceed on the 21 January 2019.
Nor do I consider that the Magistrate erred by any of the actions which the plaintiff alleged [in the amended originating motion]. The key consideration to be kept in mind is that none of the parties wished the hearing on 21 January 2019 to proceed.[71]
77 Ginnane J accordingly dismissed both originating motion proceedings.
78 The originating motion before Coghlan JA was for judicial review of the order made in the criminal proceeding on 10 December 2018 declaring Mr Dobbs and his mother to be 'special witnesses' pursuant to s 15YAB of the Crimes Act 1914 (Cth).
79 As indicated earlier, this proceeding had initially come before Daly AsJ on an application by the defendant for summary dismissal. Daly AsJ had not been prepared to summarily dismiss the proceeding at that time, which was before Ms Austin was committed for trial on 2 April 2019.
80 Coghlan JA concluded that Ms Austin's committal on 2 April 2019, together with the transfer of the summary charges to the County Court, meant that there was no longer any proceeding left in the Magistrates' Court to which the impugned order could apply.[72] He accordingly reached the following relevant conclusions:
I am satisfied that the point has been reached in these proceedings that the impugned order is of no practical effect because there are no proceedings left in the Magistrates' Court to which the order could apply. I do not accept that the order could have standing in the trial scheduled in the County Court and it was accepted on behalf of the defendant before me that that was so. I regard the committal for trial as being one of the events Daly AsJ said would enliven reconsideration of summary dismissal.
To avoid doubt, I make it clear that if there is any attempt to invoke the operation of s 15YAB of the [Crimes Act 1914 (Cth)] in the County Court, that could only be done on the basis of a fresh application and decided after hearing any relevant evidence and submissions. There is no reason why that matter could not be heard as a preliminary matter well ahead of the trial which is listed for hearing on 25 May 2020.[73]
81 Coghlan JA determined that the proceeding should be summarily dismissed.
82 Ginnane J's costs judgment dealt with the costs of the originating motion concerning Judge Taft's strike out of Ms Austin's appeal, and the originating motion concerning the Magistrates' adjournments of the intervention order proceedings on 15 May 2018 and 21 January 2019. Before turning to Ginnane J's reasons it is necessary to refer again to provisions of the PSIO Act.
Each party to a proceeding for a personal safety intervention order under this Act must bear the party's costs of the proceeding.
Provision is then made in subsection (3) for the 'court' to make an order about costs in exceptional circumstances or where an application is vexatious, frivolous or brought in bad faith. Section 4 of the PSIO Act defines 'court' for these purposes as the Magistrates' Court or the Children's Court.
84 Before Ginnane J the defendant, Mr Dobbs, contended that s 111(1) of the PSIO Act did not apply to the originating motion proceedings and that costs should follow the event. In the alternative it was submitted that there were 'exceptional circumstances' which warranted a costs order in his favour. Ms Austin submitted that an award of costs against her would increase the injustice to which she had been subjected and would continue the abuse of process against her. She submitted that s 111(1) of the PSIO Act did apply. She submitted that there were no exceptional circumstances warranting a costs order. She relied upon the Court's flexible discretion to award costs. She submitted that the Court should order Mr Dobbs to pay her costs or there should be an order that each party bears its own costs.
85 Ginnane J concluded that s 111(1) of the PSIO Act did not apply to the proceedings before him. This was because the section specifically regulated the position in relation to a proceeding 'for a personal safety intervention order'. Neither of the applicant's originating motions could properly be so characterised.[74] Accordingly, Ginnane J concluded that the Court had a discretion to award costs.[75]
86 Ginnane J then said that the next question was whether costs should follow the event, and he concluded that they should.[76] Both of Ms Austin's proceedings had been unsuccessful.[77] The fact that Ms Austin contends that she has been subjected to injustice in the Magistrates' Court did not, in Ginnane J's view, justify a departure from the general rule that a party who brings unsuccessful proceedings must pay the costs of the other party.[78]
87 Ginnane J considered, however, that there was overlap between the two proceedings and that Ms Austin should only be ordered to pay one set of costs. To achieve that outcome he ordered that Ms Austin pay Mr Dobbs' costs of the proceeding concerning Judge Taft's strike out and that on the proceeding concerning the Magistrates' adjournments there be no order as to costs.
88 All of the applications for leave to appeal arise in proceedings for judicial review. In the present context, judicial review is the exercise by the Supreme Court of its supervisory jurisdiction over other courts in the State of Victoria, including the Magistrates' Court and the County Court. This jurisdiction is supervisory, not appellate. In exercising the jurisdiction the Court does not assess the merits of the decision, it considers only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decision.
Ginnane J judgment - Judge Taft - grounds and submissions
89 Ms Austin's proposed grounds of appeal are as follows:
(1) Justice Ginnane erred when he misapplied the principles of statutory interpretation. In doing so, he erred when he concluded Judge Taft had made no jurisdictional error or error of law on the face of the record.
(2) Justice Ginnane erred when he concluded I was not entitled to procedural fairness as the circumstances of my case could not be considered by the court.
Ms Austin's application also sets out what purports to be a question of law proposed to be raised, being: 'Does a judicial officer have the authority and jurisdiction to disregard the human rights of a party to proceedings and issues of constitutional validity when making decisions?'
90 Mr Dobbs was represented before Ginnane J. He filed a notice of intention not to respond or contest in relation to the applications for leave to appeal from Ginnane J's judgment.
91 In relation to proposed ground 1, in her written case Ms Austin referred at some length to the Parliamentary debates concerning the PSIO Act and in particular to references made to the right of appeal as a 'safeguard' and to the absence of reference to a 'time bar' in those debates. She referred to the decision in Carroll, pointing out that the relevant issue had not been raised before Richards J in that case. She addressed the policy considerations which, she contends, ought to militate towards a finding that the legislation does permit time to be extended. In her written case Ms Austin characterised Ginnane J's analysis of the different character of an appeal under ss 91-96 of the PSIO Act (re-hearing) and an appeal under s 109 of the MC Act (question of law) as 'inexplicable'. She submitted that Ginnane J's construction of the relevant provisions has the effect of rendering s 98 a 'nullity'. She submitted that the legislature had 'specifically, and explicitly, wanted section 109 of the Magistrates' Court Act 1989 (Vic) to apply to appeals under the PSIO Act'. She submitted that there were clearly exceptional circumstances justifying an extension under s 109 in her case.
92 In relation to proposed ground 2, in her written case Ms Austin acknowledged that she had 'agreed' to the Court below not considering issues of constitutional invalidity which she had wished to raise. She said this was because the matter was urgent and she had already 'endured' five court proceedings at the Supreme Court. She then made a submission as to the progress of the intervention order proceeding and the criminal proceeding, concluding:
An intervention order has been in place, with me listed as the perpetrator, for almost three years. No hearing has ever taken place. There has been no procedural fairness in my case and this should have been a consideration in Justice Ginnane's judgment.
93 In her written case she addressed the question of law purportedly raised referring to 'human rights violations' and constitutional invalidity. In that respect she again referred to the various proceedings against her which, she contended, had been 'horrendously mismanaged'.
94 In the hearing before us on 17 September 2019 Ms Austin handed up a document headed 'Oral Arguments'. In that document she repeated the submissions made in relation to the construction of the PSIO Act. She referred to authorities requiring a purposive construction of statutes. She referred to the decision in Tomasevic and set out submissions that appeared to be directed to the constitutional validity of the PSIO Act, based upon the events which had occurred in her case. The substance of that submission was expressed as follows:
Orders have been made that have adversely altered my legal rights without me being given the opportunity to respond to any evidence put to the court against me and without me being given the opportunity to put my case before a court or defend myself.
95 In this context reference must be made to Ms Austin's notice under s 78B of the Judiciary Act 1903 (Cth). The matters she sets out in that notice are similar to the matters which she advances in support of proposed ground 2 and the question of law which she seeks to raise. The notice, in substance, gives her account of the events which have occurred in the intervention order proceeding and the criminal proceeding in support of a conclusion that the PSIO Act is unconstitutional because it produces results 'that are inconsistent with procedural fairness and the institutional integrity of the Court'.
96 Ms Austin did at one point seek to advance similar submissions concerning constitutional validity before Ginnane J. She frankly concedes that she did not pursue those matters before him. We have reviewed the transcript of the interchanges between Ginnane J and Ms Austin and it is clear that Ms Austin made a decision not to pursue her constitutional arguments. Initially, the judge's concern was an absence of notices under s 78B.[79] Ginnane J then raised the fact that, in any event, the constitutional matters were not in any of the articulated grounds, and that she would need to amend her originating motion in order to raise them.[80] Ms Austin said that she did not want to amend. She did indicate to the Court that she intended to raise the issue of constitutional validity at some other point.[81]
Ginnane J judgment - Judge Taft - analysis
97 As to proposed ground 1, in our opinion the statutory construction adopted by Ginnane J was correct.
98 The different character of an appeal under ss 91-96 of the PSIO Act, and an appeal under s 109 of the MC Act, is the critical consideration. They are two different types of appeal. One does not qualify the other. The provisions of one cannot 'apply' to the other. They operate independently. Ms Austin is correct when she says that the legislature specifically and explicitly wished s 109 of the MC Act to apply to orders made under the PSIO Act. It does apply. There is a right of appeal, on a question of law, to the Supreme Court under s 109 of the MC Act. If such an appeal is instituted out of time, an extension can be granted. In addition, and separately, there is a right of appeal under ss 91-96 of the PSIO Act. This is a different kind of appeal. It is a rehearing in the County Court. There is no power to extend time for such an appeal.
99 The second proposed ground of appeal (and the question of law) raise what seems to us to be the true essence of Ms Austin's complaint. Her complaint about procedural unfairness is not a complaint in relation to the hearing before Ginnane J. Rather, it is a complaint in relation to almost everything that has occurred in the intervention order proceeding and the criminal proceeding. We shall address this issue further below. In the present context, it is sufficient to note that no arguable ground of appeal, or relevant question of law, is raised in relation to this proposed ground which relevantly impugns Ginnane J's judgment.
100 It is unnecessary to address the matters raised as constitutional issues. Those matters were expressly not relied upon before Ginnane J.
101 On the application for leave to appeal from the decision of Ginnane J in relation to Judge Taft's decision to strike out the appeal, leave to appeal will be refused.
Ginnane J judgment - Magistrates' adjournments - grounds and submissions
102 Ms Austin's proposed grounds of appeal in relation to Ginnane J's judgment concerning the magistrates' adjournment orders are as follows:
(1) Justice Ginnane's judgment is not supported by the facts and evidence.
(2) Justice Ginnane erred when he did not adequately consider the abuse of process that has occurred in these proceedings. In doing so, he did not give sufficient weight to the consequences and impact these harsh, oppressive, vindictive and badly managed legal proceedings have and are still having on me.
103 The application also set out a purported issue of law, being:
Does an Associate Justice have the authority and jurisdiction to disregard the history and circumstances of the proceedings and the parties when determining whether or not to grant a stay as per Regulation 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and s 30 of the Supreme Court Act 1986 (Vic)?
104 In her written case in relation to proposed ground 1, Ms Austin submitted that Ginnane J made 'numerous statements and assumptions that are not correct'. Ms Austin then sets out references made by Ginnane J to things said or contentions made by others. Ms Austin's complaint is not that those others did not make those statements or advance those contentions but that the statements and contentions themselves were wrong. In that connection Ms Austin also complains of Ginnane J's reference to the decision of Derham AsJ. Ms Austin says that Derham AsJ summarily dismissed her application without a hearing on the merits and that he was therefore 'not in a position to make any comments on the merits of that case'.
105 Ms Austin submitted that Ginnane J was incorrect in his characterisation of what proceedings were before the respective Magistrates on the respective dates. Ms Austin contested Ginnane J's conclusion that Magistrate Kilias would have crossed a 'boundary' by raising the issue of a stay on his own initiative. Ms Austin submitted that Magistrate Kilias should have asked her if she wanted to make an application, and that that would have been within the 'boundary' referred to by Ginnane J.
106 In relation to proposed ground 2 (and the question of law) Ms Austin's written case is a diatribe against the progress of the proceedings against her, principally in the Magistrates' Court but also in the County Court. The substance of her complaint is that she has been subjected to orders which have had the most deleterious impacts on all aspects of her life without any contested hearing in relation to the factual basis of those orders ever having been held. A document entitled 'Oral Arguments' handed up by Ms Austin in the hearing before us contained submissions to a similar effect.
Ginnane J judgment - Magistrates' adjournments - analysis
107 As to proposed ground 1, in our opinion, Ginnane J's judgment is correct.
108 In relation to the adjournment on 15 May 2018, the transcript sets out fully and clearly what occurred and the decision made by Magistrate Keil to adjourn the proceeding on the basis that he considered that he ought to recuse himself and because insufficient time had been allocated was clearly one that was open to him. No relevant error has been demonstrated in his taking that course for the reasons Ginnane J gave, as quoted earlier.
109 Similarly, Magistrate Kilias' adjournment order on 21 January 2019, in circumstances where both Ms Austin herself and the police prosecutor sought an adjournment (although for different reasons), cannot credibly be contended to be a decision which was not open to him. The proposition put to Ginnane J that without any application Magistrate Kilias should have permanently stayed the proceeding, or invited Ms Austin to apply for him to do so, is untenable. There was no relevant error in the Magistrate hearing the police prosecutor, given the close interrelationship between the intervention order proceeding and the criminal proceeding.
110 Proposed ground 2 (and the question of law) reveals again the true nature of Ms Austin's fundamental complaint. She has specific complaints in relation to the various orders made, but her true concern is the overall effect of all of the proceedings upon her and, in particular, the fact that she has never had the opportunity to challenge the basis upon which the intervention orders were initially made. We will address that matter further below.
111 On the application for leave to appeal the decision of Ginnane J in relation to adjournments of the intervention order proceedings, leave to appeal will be refused.
Ginnane J costs judgment - grounds and submissions
112 There are two applications for leave to appeal in relation to the Ginnane J costs judgment. It will be recalled that in the originating motion proceeding concerning Judge Taft, Ginnane J ordered Ms Austin to pay Mr Dobbs' costs, and in the originating motion proceeding concerning the Magistrates' adjournments, Ginnane J made no order as to costs. Ms Austin has sought leave to appeal from the orders in each of the proceedings, although in her oral submissions before us on 11 November 2019 she submitted that her primary concern is the costs order against her and that she had sought leave to appeal in the other matter because the two matters were 'associated'.
113 Ms Austin's proposed grounds of appeal are identical in relation to each application, as are her written cases. Mr Dobbs filed a notice of intention not to respond or contest in relation to both matters.
115 Like her other applications, Ms Austin also sets out a purported question of law concerning whether the judge has authority and jurisdiction to disregard the history of the proceedings.
116 In her written case, and in her oral submissions, Ms Austin contended that Ginnane J's costs order against her was erroneous because:
117 Ms Austin submitted that not only should a costs order not have been made against her, but that a costs order should have been made against Mr Dobbs.
118 Appellate courts are particularly reluctant to grant leave to appeal in relation to costs orders. Before leave to appeal was required in relation to all appeals, there was specific legislative provision requiring leave to appeal from orders as to costs. The court's reluctance to grant leave to appeal in relation to costs orders continues under the current legislation.[82]
119 In our opinion leave to appeal should be refused in relation to both applications concerning the Ginnane J costs judgment.
120 Putting to one side the issue concerning the application of s 111 of the PSIO Act, Ginnane J's costs orders are notable only for the indulgence which the judge showed towards Ms Austin. She having failed in both proceedings, ordinarily a costs order would be made against her in both proceedings and any overlap would be addressed in the process of taxation. Ms Austin obtained orders more beneficial to her than that as she obtained a specific order that there be no order as to costs in an originating motion proceeding in which she had been unsuccessful.
121 In relation to the issue concerning s 111 of the PSIO Act, in our opinion, Ginnane J's conclusion in relation to the application of that provision was correct. Ms Austin's originating motions seeking judicial review were not proceedings 'for a personal safety intervention order'. They were separate proceedings seeking judicial review, in the sense previously explained, of proceedings in the Magistrates' Court which had been of the kind referred to in s 111 of the PSIO Act. Ms Austin's judicial review proceedings were distinct from, and fundamentally different to, the proceedings to which s 111 of the PSIO Act applies.
Derham AsJ judgment - grounds and submissions
122 Ms Austin's application for leave to appeal from the Derham AsJ judgment contains the following proposed grounds:
123 Ms Austin's application for leave to appeal asserted that: 'It is the costs order made by Associate Justice Derham that is the main focus of this application for leave to appeal'. In her oral submissions she confirmed that that was in fact the only matter which was of concern to her in relation to this application.
124 In her written case Ms Austin criticised the substance of Derham AsJ's determination, but she did so in the context of asserting that the costs order he made, requiring her to pay half of Mr Dwyer's costs, should be set aside. In her written case she relied significantly on the fact that Mr Dwyer had not applied for summary judgment by summons and also relied upon what she asserted to be the 'criminal' manner in which the judicial review proceedings and the proceedings underlying them had been conducted by Mr Dwyer. In relation to the substance of the matter Ms Austin's written case asserted that Derham AsJ's conclusion that it was entirely justified for the Magistrate to have recused himself was 'not in dispute'. In her written case she also submitted that she accepted that an adjournment had been necessary on 15 May 2018 but that it should have been for a short period. Ms Austin criticised Derham AsJ's failure to deal with all three judicial review proceedings together. Specifically in relation to the costs order, Ms Austin's written case relied upon Mr Dwyer's failure to proceed by way of summons and what was submitted to be Derham AsJ's failure to exercise the costs discretion which he had to the full extent.
125 In her oral submissions before us on 11 November 2019, constituted by a document which she handed up, Ms Austin recounted aspects of the various proceedings in the Magistrates' Court and in the judicial review proceedings culminating in a submission that Mr Dwyer had 'brought the administration of justice into disrepute'. It was submitted that he had not behaved honestly or fairly and had contravened the overarching obligations provided for by the Civil Procedure Act 2010. In the circumstances Ms Austin submitted that it was in the interests of justice for costs to be awarded to her or to order that there be no order as to costs.
126 Mr Dwyer filed a notice of intention not to respond in relation to this application.
127 In our opinion the Derham AsJ judgment on the substantive issues before him was correct for the reasons which he gave. In substance those reasons were the same as the reasons given by Ginnane J in relation to the related proceeding. Ms Austin now accepts that the Magistrate was right to recuse himself and that an adjournment was accordingly necessary, although she disputes the period for which the matter was adjourned.
128 In relation to costs, again, the only matter noteworthy in relation to the costs is the indulgence with which Ms Austin has been treated. In the ordinary course of events a party bringing an unsuccessful judicial review application of this kind would be ordered to pay the successful party's costs. Ms Austin was only ordered to pay half of the successful party's costs because a summons seeking summary judgment had not been issued. There was no suggestion that Ms Austin had not been given adequate notice. To discount the costs by 50 per cent on the basis that a summons had not been issued was, in the circumstances, a generous determination in Ms Austin's favour.
129 As indicated previously, appellate courts are reluctant to grant leave to appeal in relation to costs orders. In our opinion there is no basis for a grant of leave to appeal in relation to this order. Leave to appeal on this application will be refused.
Coghlan JA judgment - grounds and submissions
130 In her application for leave to appeal Ms Austin sets out the following proposed grounds:
131 In her written case, and in oral submissions made before us on 11 November 2019 (embodied in a written document that was handed up), Ms Austin again made extensive complaints as to the manner in which the proceedings in general had been conducted against her. Specifically in relation to the matters the subject of this application she submitted, in substance, as follows:
132 Mr Dwyer was represented on this application. In his written case he submitted that the construction of the relevant statutory provisions by Coghlan JA, and by Magistrate Gillian before him, was clearly correct. Section 15YAB applies to any Commonwealth offence. In his written case it was submitted that the relevant decision was discretionary, to which the principles in House v The King[83] applied. It was submitted that there was no error in Coghlan JA's judgment in that he correctly found that there were no longer any proceedings for a Commonwealth offence in the Magistrates' Court to which the special witness order could apply. In the course of oral submissions counsel for Mr Dwyer made it clear that Mr Dwyer's position was that the matter should not have been dealt with, even for a relatively short period, before the Magistrate in Ms Austin's absence.
133 Part IAD of the Crimes Act 1914 (Cth) is headed 'Protecting Vulnerable Persons'. In Division 1, headed 'Introduction', s 15Y refers to the fact that provisions within the Part deal with particular kinds of witnesses and offences. Section 15Y(1) provides that the Part contains special rules for children in relation to specified sexual and other offences. Section 15Y(2) provides that the Part contains special rules for adult complainants in relation to certain offences including slavery and trafficking. Section 15Y(3) provides:
This Part contains special rules that can apply for special witnesses involved in proceedings for any Commonwealth offence.
134 Section 15YAB is headed 'Special Witnesses'. Section 15YAB(1) provides:
In a proceeding for a Commonwealth offence, the Court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of:
(a) a disability; or
(b) intimidation, distress or emotional trauma arising from:
(i) the person's age, cultural background or relationship to a party in the proceeding; or
(ii) the nature of the evidence; or
(ii) some other relevant factor.
135 Ms Austin's submissions in relation to statutory construction, and in relation to what she claims to be the imputation about her character as a result of the order made, are based on a misconstruction of the relevant provisions. The construction given to the provisions by Coghlan JA is the correct one. A special witness declaration may be made in a proceeding for any Commonwealth offence. It is not related to the specified offences in s 15Y(1) and (2). The plain words of the statute in s 15Y(3), and in s 15YAB itself, make this clear. They cannot be confined in the way Ms Austin contends. The fact that a special witness declaration has been made is referable only to the status and circumstances of the witness.
136 In any event, before Coghlan JA Mr Dwyer accepted, and Coghlan JA held, that the declaration made had no continuing operation and would not apply to the trial in the County Court. In the circumstances, the issue had ceased to have any practical significance.
137 Leave to appeal will be refused in relation to this application. There is no arguable basis for concluding that any error of law was made either by Magistrate Gillian or by Coghlan JA. In any event, the declaration made has no continuing practical application.
138 Ms Austin is justified in highlighting the delay which has occurred in relation to the intervention order proceeding without any contested final hearing being held. She attributes that delay to criminal misconduct and incompetence by almost everyone involved, except herself.
139 It is neither possible nor desirable to attempt to reach any conclusions in relation to the causes of the delay, but forensic decisions made by Ms Austin including dismissing her legal advisers, issuing judicial review proceedings, not consenting to the indictable charges being heard summarily (which she is, of course, entitled to do but which does lead to delay), and refusing to participate in hearings by audio-visual link (which again she may be entitled to do, but which can also lead to delay) may also have been causes of delay.
140 More than anything else, however, the intervention order proceeding has been dislocated and delayed by reason of the criminal investigation, the charges which resulted, and the criminal proceeding. It is alleged against Ms Austin that she repeatedly contravened the intervention order after it was served on her, and, indeed, continued to contravene it after she was arrested, charged with contravention, and released on bail. These circumstances led to her arrest on the day the intervention order proceeding was scheduled for a rehearing and resulted in the revocation of her bail.
141 Ms Austin maintains that all she has ever sought is a contested hearing in relation to Mr Dobbs' allegations against her which were the foundation for the interim intervention order made without notice to her in August 2016. She has a trial date in the County Court where she is charged with stalking and harassing Mr Dobbs (and his mother) between October 2014 and August 2016; that is, prior to the first intervention order. A contested hearing of Mr Dobbs' allegations concerning the conduct which led to the first intervention order will then be held. This is what Ms Austin says she has been seeking all along. The summary charges concerning the alleged contraventions of the intervention order and the bail condition will be dealt with after that trial.
142 Every effort should be made to avoid any adjournment of the criminal trial in the County Court. In the absence of some significant and presently unforeseen development, in our opinion, the present position should be maintained and no further steps should be taken concerning the intervention orders until the criminal trial has been held and concluded in the County Court.
[1] These assertions are contained in a document entitled 'Oral Arguments' which Ms Austin handed up to the bench during the hearing on 17 September 2019. Similar assertions are made throughout her affidavits and written submissions.
[12] In each of the six applications a determination had been made under s 11(1A) of the Supreme Court Act 1986 authorising two Judges of Appeal to hear and determine the applications and any appeal should leave to appeal be granted.
[13] Ginnane Application Book ('GAB') E 507.
[24] Derham AsJ judgment [41] and GAB E 534.
[31] Ibid E 261 and 665 re G 13348766 and E 263 and 667 re G 12353529.
[36] Derham AsJ judgment [60] and [62].
[37] Austin v Dwyer and Magistrates' Court [2019] VSC 206, [3]-[5] (Daly AsJ).
[59] [2018] VSC 253 ('Carroll').
[68] [2007] VSC 337; (2007) 17 VR 100 ('Tomasevic').
[72] Coghlan JA judgment [10]-[11].
[74] Ginnane J costs judgment [24]-[26].
[79] Transcript of proceedings (8 March 2019) 55-8.
[82] AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSCA 227 [89]; AFP v Opal Storm [2018] VSCA 301 [27].
Austin
Dobbs [2019] VSCA 296
(2017) 51 VR 624
(1936) 55 CLR 499
(2007) 17 VR 100