Boswell v Fawcett [2025] VCC 556

1. Ms Boswell filed submissions with the Court on 24 February 2025.
2. Both parties were given the opportunity to make oral submissions.
3. Ms Boswell made 10 separate subpoena applications to have individuals attend Court to give evidence, these applications were all denied.
4. The appeal proceeded on the basis of the court book filed by Ms Boswell and nine additional tendered documents.

1. In the decision of the Honourable John Dixon J in AAA v County Court of Victoria & Ors ("AAA")[1], John Dixon J considered the terminology associated with s 119 and particularly the meaning of the term "rehearing by the County Court" which appears there. In that case, his Honour held that an appeal under s119 is a broad appeal by way of rehearing. The features of such a broad appeal are the following:
   1. that the appeal court will apply the law as it exists at the time of the appeal to the facts as it finds them;[2]
   2. the powers of the appeal court are exercisable only where the appellant can demonstrate the original decision-maker made some legal, factual, or discretionary error;[3]
   3. the appeal may be conducted by reference to the evidence given at the first instance, though with power to receive further evidence;[4]
   4. the Court is required to assess and evaluate the evidence for itself.[5]
2. However, his Honour noted that an appeal of this nature did not have an immutable set of characteristics or inflexible boundaries but, ultimately, would be informed by the legislation creating the appeal right, the jurisdiction, the composition and functions of the tribunal from whose decision the appeal lies, and the individual circumstances of the case at hand. [6]
3. As to any evidence which may be permitted at the rehearing, his Honour considered that new evidence could be admitted.[7] He elaborated that the appellate court is not confined to the record of evidence led at the original hearing, and may hear new evidence presented on the appeal. It is then the appeal court's function to apply the law at the time when the appeal is heard to consider all of the admitted evidence. He summarised this as being an appeal by way of rehearing based upon the evidence given in the court of first instance, supplemented by further evidence.[8]
4. Broadly, the ratio of that case was that an appellant needs to demonstrate a legal, factual or discretionary error in the Magistrates' Court's decision to enliven the jurisdiction of this Court. Such error may be proved after an examination of the transcript in the Magistrates' Court, to examine the conduct of the proceeding and any reasons for decision.

1. What constitutes an error in any particular case is wholly dependent on the evidence considered in the context of the objective findings of the primary judge.[9] With that said, established legal principles operate to guide the courts through an assessment of claimed errors. I turn now to briefly consider those.

1. A legal error may arise in the way in which a court:

"undertakes its fact-finding, or ... in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning". [10]

1. Appeals operate as a safeguard against these errors, to ensure that courts and tribunals operate within their jurisdiction.[11]

1. A factual error arises when a trial judge's findings of fact are "glaringly improbable" and "inconsistent with facts incontrovertibly established by the evidence".[12] A factual error does not arise simply because an appellate court considers that the probabilities of the case are against that finding of fact.[13]
   1. The legal principles with respect to factual errors were summarised by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee:[14]

"A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'."

"If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal." [15]

1. Where the evidence identifies an error by the trial judge in the exercise of their discretion, the appellate court may then exercise its own discretion on that point.
2. The legal principles with respect to discretionary errors were identified by Dixon, Evatt and McTiernan JJ in House v The King: [16]

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion to which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

1. Having set out those principles, I now turn to the grounds of appeal pressed by Ms Boswell.

1. Ms Boswell filed a statement setting out her grounds of appeal, and she read from a written document which has been marked for identification. At the hearing, Ms Boswell was provided time to make oral submissions to clarify her grounds of appeal and written submissions. I have read these submissions and refer to the documents in tandem with her oral submissions in my consideration of whether Ms Boswell can demonstrate legal, factual, or discretionary error in the decision of the Judicial Registrar.

Ground 1: "I was denied procedural fairness at the IVO contest hearing at the Ringwood Magistrates's [sic] Court in circumstances where I was not afforded an opportunity to present all my evidence and the Judicial Registrar sent away three of my witnessess [sic], the fourth oner [sic], Shane Bye [sic] didn't attend and the Judicial Registrar didn't enforce any repercussions for not attending even though Shane bye [sic] and all my witnesses where [sic] subpoenaed by me and filed at the Ringwood Magistrates' Court."[17]

1. I interpret this to be an allegation that she was denied procedural fairness and consequently Ms Boswell submits an error of law has been made. I reject that submission because I find:
   1. The proceeding at the Magistrates' Court was conducted over a five day period. Ms Boswell gave evidence at the Magistrates' Court on 30 September 2024. Ms Boswell was provided the opportunity to present all relevant evidence comprising of further and better particulars, photographs, video footage, surveillance footage, audio recordings, medical records and maps in relation to the application for the PSIO. [18]

1. the Judicial Registrar ruled their evidence was irrelevant;
2. even if there was any relevant evidence they could give, Ms Boswell has not explained in any way how such evidence could rationally effect the ultimate decision, much less change it.[19]

Ground 2: "Bias was shown against me during the hearing as [sic] the Ringwood Magistrates' Court Desk Clerk was 'rude and arrogant' towards me after they told me my blue USB that I submitted to rely on for my evidence had no files on it. I had vomit up to my throat. The Respondent said her copy had all my files on it. The Desk Clerk told me there were only 15 files on my blue USB and at lunchtime when I went to Officeworks there was nothing except corrupt files on my blue US [sic]. I still have the blue USB to produce as evidence. I asked to play the red USB and was told by the Judicial Registrar this USB related to Catherine Lynch's evidence and I wasn't allowed to rely on it and was told I would get the red USB after the 5 Day hearing. I would also like to tender this USB as evidence."[20]

1. I interpret this to be an allegation that she was unable to present all her evidence due to a technical issue. In that, it appears Ms Boswell submits an error of law has been made. I reject that submission for the reasons set out above and further, because the material on the Red USB largely mirrors that on the Blue USB. To the extent there is a discrepancy, no submission was made as to how that material could rationally effect the ultimate decision.
2. I dismiss this ground of appeal.

Ground 3: "Judicial Registrar Rankin was "not interested in anything I said" but listened and believed Ms. Fawcett, suggesting the officers of the Court had pre-conceived opinion of me."[21]

1. I interpret this to be an allegation that the Judicial Registrar was biased. In that it appears Ms Boswell submits an error of law was made. I reject that submission because I find:
   1. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court;
   2. comprehensive reasons were provided explaining the Judicial Registrar's decision to grant the final order;
   3. a close reading of the transcript does not reveal any bias in the reception of evidence before the Court. Similarly, the reasons deal with all relevant aspects of Ms Boswell's case and set out why her evidence was rejected, and why Ms Fawcett's evidence and those witnesses she called were accepted. A logical path of reasoning can be discerned.

Ground 4: "I was the Applicant in this matter and never had the opportunity Under Oath to give my evidence."[22]

1. I interpret this to be an allegation that she was denied the ability to give evidence and consequently it appears Ms Boswell submits an error of law was made. I reject that submission because I find:
   1. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court and did so.
2. I dismiss this ground of appeal.

Ground 5: "I made five Police Statements and tended [sic] them as evidence, Ms. Fawcett had none and told Judicial Registrar Rankin I did nothing to her."[23]

1. I interpret this to be an allegation that there was a failure to have a fair hearing and consequently it appears Ms Boswell submits an error of law has been made. I reject that submission for the reasons set out above and:

a. as per Ground 1, paragraph a, Ms Boswell was provided the opportunity to give evidence in Court;

b. comprehensive reasons explaining the Judicial Registrar's decision were provided.

Ground 6: "Ms. Fawcett and ms. [sic] Lynch bullied the previous Tennant in my Unit and she was Transferred immediately."[24]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 7: "Ms. Fawcett never filed Further and Better Particulars by due date and her fictitious and malicious Cross Application is not consistent to her Application or evidence."[25]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 8: "Ms. Fawcett's witnesses were allowed to give evidence remotely and were lying Under Oath."[26]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 9: "Ms. Fawcett alleges I had a machette [sic] and broke into one of the Unit's and witnessed everything but never reported this to Police."[27]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 10: "The video on my Security Camera shows Ms. Fawcett with Mr. Cocking and Mr. Fontanna on Christmas Eve, 2024 existing [sic] Ms. Lynch's Unit and Ms. Fawcett go to her Unit and you can hear her door close before the two men come to threaten to beat my fucking head in. Mr. Fontanna is the boyfriend of Ms. Fawcett."[28]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 11: "Ms. Lynch made a false Triple Zero call and told Victoria Police I hit her with my car and produced fake photographs to the Ringwood Court. This proves Ms. Lynch and Ms. Fawcett which proves they are both trying to set me up."[29]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

Ground 12: "Ms. Lynch was granted a full conditioned Personal Safety Order on me without giving any evidence under Oath, I have the Transcript of her hearing and the Transcript of Ms. Fawcett's evidence Under Oath that is not consistent to her evidence or her original Application."[30]

1. I do not understand what the alleged error is. Further, Ms Lynch was not the respondent below or in this Court. I dismiss this ground of appeal.

"Ground 13: At my Directions Hearing Ms. Fawcett spoke the whole time even though it was my Application."[31]

1. I do not understand what the alleged error is. To the extent this refers to an alleged failure to have a fair hearing, I repeat my reasons in respect of Ground 1. I dismiss this ground of appeal.

Ground 14: "Ms. Fawcett and Ms. Lynch concocted a calculated witch hunt on me to destroy my creditability and to cause me trouble with Depot of Housing and Victoria Police and a series of oroblematic [sic] interactions with Ms. Fawcett and Ms. Lvnch [sic] and reoorts [sic] to Victoria Police."[32]

1. I do not understand what the alleged error is. I dismiss this ground of appeal.

1. For the reasons above, I will dismiss this application to appeal.

1. Kaur and Cattapan applied for costs in respect of the dismissal of subpoenas against them. This application was adjourned. Parties, including for Kaur and Cattapan, are to file any submissions in respect of costs limited to 2 pages within 7 days. Such applications will be dealt with on the papers.

[1] [2023] VSC 13

[8] Ibid at paragraph [51(b)] relying on Matsoukatidou v Yarra Ranges Council [2017] VSC 61; (2017) 51 VR 624,

[9] Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

[10] Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 at paragraph [23]

[12] Devries v Australian National Railways Commission (1993) 177 CLR 472 at paragraph [479]

[14] [2019] HCA 28; (2019) 266 CLR 129 at [55]

[15] [1943] AC 517 at paragraph [526]

[16] (1936) 55 CLR 499 at paragraphs [504-505]

[17] Appellants written submissions dated 19 February 2024 at paragraph [1]

[18] Transcript ('T") 642, Line ("L") 10-14

[19] Stead v State Government Insurance Commission (1986) 161 CLR 141

[20] Appellants written submissions dated 19 February 2024 at paragraph [2]