McMahon v Jones [2025] VCC 1811

1. In his statement of grounds, the appellant alleged that the Magistrate made the following errors:

(a) No reasonable Magistrate could have found that Dr McMahon was in fact the proper respondent on the facts asserted on the balance of probabilities (factual error).

(b) The Magistrate erred in taking into account matters that she was not allowed to take into account, namely that Dr McMahon had previously consented to a PSIO without admissions, and this amounted to an admission (legal error).

(c) The Magistrate refused to allow evidence regarding Ms Jones' online political activities to be led in circumstances where those activities were probative (discretionary error).

1. The appellant in his outline of submissions filed 23 June 2025, did not pursue the second and third grounds, and adopted two additional grounds of appeal:

(a) The Magistrate erred in law by considering evidence of the PSIO application brought by Dr David Hollis against the applicant in 2018, thus engaging in coincidence reasoning.

(b) The Magistrate erred in law by failing to apply an appropriate standard of proof.

1. The appellant in further submissions dated 15 July 2025, sought to rely on new evidence namely:

(a) After the extension of the PSIO on 7 February 2024, the respondent contacted police and requested the 2017 criminal investigation into stalking and breaching of the intervention order be reopened;

(b) The investigation was assigned to Detective Sergeant Grant Hill of the Lilydale Criminal Investigation Unit;

(c) Detective Sergeant Hill obtained and executed a search warrant on 15 July 2024 and seized the appellant's mobile phone, iPad and three computers. He also seized a computer belonging to the appellant's now deceased partner Ms Trilby Steinberger;

(d) Analysis of the electronic items seized did not reveal any evidence to support the suspicion or belief that the appellant was the online persona "David Clarkson";

(e) The analysis did reveal a number of email communications between Ms Steinberger and "David Clarkson";

(f) The appellant was arrested, and a recorded interview was conducted. He denied being the online persona known as "David Clarkson" or any variation thereof.

1. This constituted new evidence that was not available at the time of the hearing at the Magistrates' Court.

1. In written submissions supplemented with oral submissions, the appellant submitted that:

(a) The Magistrate erred in treating the appellant's consent without admissions to the initial PSIO as amounting to an admission of identity and this constituted a significant error of law. Dr McMahon was advised to consent without admissions. Acceptance of jurisdiction did not equate to accepting that he was the proper respondent. Consent without admissions should mean exactly that - without admissions. Limiting its scope to imply identity introduced an inherent contradiction and Dr McMahon has consistently denied being "David Clarkson".

(b) The Magistrate fell into error as she improperly engaged in coincidence reasoning and this was contrary to s98 of the Evidence Act 2008, which states:

"Evidence that two or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, given similarities in the events or circumstances, it is improbable that the events occurred coincidentally."

(c) During cross-examination, the Magistrate referred to other PSIOs taken out against Dr McMahon in circumstances similar to those in the respondent's case and questioned why he would consent without admissions if he were not involved. The Magistrate conducted her own inquiry into the previous PSIO and relied on this reasoning without allowing submissions on whether the evidence was more prejudicial than probative. This constitutes an error of law.

(d) The Magistrate failed to consider the principles in Briginshaw, which requires a higher degree of caution and scrutiny when making findings of fact in serious matters such as those involving significant allegations or consequences. Here, the critical issue was identity and whether Dr McMahon was "David Clarkson". The level of inquiry undertaken by the Magistrate was insufficient given the gravity of the allegation. Had identity been admitted, the inquiry would have focused on whether the conduct amounted to harassment, requiring a different evidentiary threshold. The Magistrate's approach did not reflect this distinction.

1. The appellant conceded that the new evidence would be relevant if the appellant were to satisfy the threshold question.

1. The respondent submitted in written submissions supplemented with oral submissions that:

(a) Although the appellant framed three grounds of appeal as errors of law, in substance the appellant was disagreeing with the Magistrate's factual finding that Dr McMahon was responsible for the alleged harassment. The respondent submitted that this was an attempt to "cloak" a factual disagreement in the guise of legal error, which is a much higher threshold to meet on appeal.

(b) Dr McMahon, through his legal representatives, had submitted to the jurisdiction of the Court by consenting (without admissions) to the original intervention order. In Plaintiff S164/2018 v Minister for Home Affairs[5], Edelman J differentiated the personal dimension of jurisdiction from the subject matter and geographic dimension of jurisdiction. It was held that an unconditional appearance filed by the defendant amounted to a submission to jurisdiction of the court. The Magistrate referred to this in her reasons. The respondent argued that the term "proper respondent" is a term of art under the Act, and that the purpose of allowing consent without admissions is not to permit unrelated persons to be bound by orders irrelevant to them.

(c) The Magistrate was entitled under s47 of the Act to inform herself as she saw fit, and that the rules of evidence (such as those relating to coincidence evidence under the Evidence Act 2008 as submitted by the appellant), did not strictly apply. The respondent submitted that not only was no objection raised at the hearing to the admission or use of evidence about prior intervention orders, but in fact Dr McMahon himself had introduced some of this evidence. Moreover, the appellant had conflated admissibility of evidence with the use of the evidence. The Magistrate considered the probative value and was entitled to use the evidence in her reasoning.

(d) The standard of proof for intervention orders is the balance of probabilities, as expressly stated in the Act. While Briginshaw requires greater rigour in cases of serious allegations, it does not create a higher standard of proof. The respondent submitted that online harassment is not so inherently serious or unlikely as to require an extraordinary level of proof, and the Magistrate was not required to apply a heightened standard simply because identity was in dispute.

(e) Even if one or more of the alleged errors were made out, the Magistrate's decision was based on a network of evidence, any one of which could have been sufficient to ground the extension of the order. Therefore, any error would not be material or change the outcome. The respondent referred to the recent decision of Ma v Ashraf[6] where Keogh J considered whether there was a realistic possibility that the decision-making process could have resulted in a different outcome if the alleged error had not been made and submitted that the appellant had not shown that any error would have affected the final order.

(f) The respondent submitted that the appeal should be dismissed as the appellant had not demonstrated any material error of law or fact that would justify setting aside the Magistrate's order.

Definitions > > respondent means a person against whom -

(a) an application for a personal safety intervention order has been made; or

(b) a personal safety intervention order has been made;

Consent orders > > (1) If the parties to a proceeding for a final order, or the variation, extension or revocation of a final order, consent to the making of the order or do not oppose the making of the order, the court may make the order - > > (a) without being satisfied as to any matter referred to in - > > (i) section 61; or

(ii) in the case of a proceeding for a variation, revocation or extension of a final order, section 80 or 83; and

(b) whether or not the respondent admits to any or all of the particulars of the application.

Power of court to extend final order > > (1) The court may order the extension of a final order on an application under this Division. > > (2) The court may order the extension of a final order if the court is satisfied, on the balance of probabilities, that if the order is not extended the respondent is likely to commit prohibited behaviour or stalking against the protected person. > > (3) Subsection (2) applies whether or not the respondent has -

(a) committed prohibited behaviour or stalking against the protected person while the final order was in force; or

(b) complied with the order while it has been in force.

1. I have read the transcripts of the Magistrates' Court hearing which took place on 30 and 31 March 2023 and the Magistrate's reasons for her decision dated 7 February 2024 and I have considered the submissions of the parties. For the reasons that follow, I find that there was no material error of law or fact that would justify setting aside the Magistrate's order.

1. The plaintiff consented to the PSIO without admissions and the Magistrate made the order by consent pursuant to s64 of the Act. She correctly identified the statutory framework and observed that a consent order could be made[7] without having to be satisfied that there had been prohibited conduct under s61 of the Act and without Dr McMahon admitting "to any or all of the particulars of the application". She was satisfied that Dr McMahon was and remained a respondent as defined by s4 of the Act and by giving his consent, "he moves the court to make the order".
2. In Thomas v The A2 Milk Company Ltd [No 2][8], the Court held that:

"Personal jurisdiction is what makes the defendant answerable to a court's command. It was, and is, the capacity to serve the originating process that is central to determining the bounds of personal jurisdiction. Personal jurisdiction can arise by virtue of: > > (a) the defendant being present in the jurisdiction and served with the process; > > (b) the plaintiff being authorised to serve, and serving, the defendant outside the jurisdiction; or > > (c) consent or voluntary submission to the jurisdiction, which may be manifested by entry of an unconditional appearance, or taking a positive step in the proceeding (such as filing a defence or cross-claim). > > It is important not to conflate questions of jurisdiction and questions of the applicable law. Once personal jurisdiction has been established, the Court has jurisdiction, in the sense of authority to decide, but the assumption of jurisdiction 'raises no question as to the law to be applied in deciding the rights and duties of the parties'. This Court has personal jurisdiction over A2. It was served and, by filing an unconditional appearance, has submitted to this Court's jurisdiction."

3. Consistent with the Court's reasoning in A2, I find that the Magistrate had jurisdiction over the appellant. Dr McMahon did not file a conditional appearance nor seek to contest identity when he consented to the PSIO. He took a positive step in consenting to the PSIO. His non admission was limited to the particulars of the application.
4. I do not accept the appellant's argument that the non-admission extended to not admitting identity. The Magistrate did not err as she found that Dr McMahon "submitted to the jurisdiction of the court and actively through his solicitors consented to the making of the order".[9] She considered that an email sent by the appellant's solicitors was of particular significance. It stated "we act on behalf of Dr David McMahon the respondent in the above application" and went on to confirm their client's instructions to consent to an extension of the final order, again without admitting the allegations contained in the original application or the application for extension, on the basis that the orders reflected conditions in relations to the firearms authority as he wanted to proceed with an application to be deemed a non-prohibited person.[10] This further supports the contention that the appellant submitted to the jurisdiction.

1. Section 47 of the Act governs admissibility in these proceedings, displacing most provisions of the Evidence Act 2008. Under s47, the Court is not bound by the rules of evidence and may admit material unless its probative value is substantially outweighed by unfair prejudice. I note that no objection was raised at the Magistrates' Court hearing by the appellant's counsel to the receipt of the disputed evidence, nor was the Magistrate asked to exercise her discretion to exclude it. I reject the appellant's submission that it was the Court that sought to introduce evidence of its own volition and chose without notice to engage in its own enquiry of previous intervention orders.[11] The transcript shows that Dr McMahon himself raised the PSIO obtained by a different respondent, in response to a question about his prior consent to Ms Jones' 2019 application. The evidence complained of was therefore introduced by the appellant. In my view the appellant has conflated the admissibility of evidence with the use made of that evidence by the Magistrate.
2. Her Honour made the observations that Dr McMahon would need to be "subject to a broad-ranging, almost baroque conspiracy, involving multiple intervention order applications being made where you are the respondent, alleging conduct by an entity each time known as David Clarkson".[12]
3. Coincidence reasoning is a species of circumstantial evidence which invites the finder of fact to engage in probability reasoning that two or more events could have occurred coincidentally. It gains its probative value when it suggests the objective improbability of an event occurring accidently[13]. The Magistrate's comment illustrates her evaluation of the improbability of Dr McMahon being the subject of multiple applications for PSIO where the conduct complained of was by an entity known as "David Clarkson". Her Honour clearly considered this evidence and attached probative value to it. She observed that there was no other explanation for his repeated submission to the jurisdiction of various Courts, his involvement in proceedings and his active acceptance of orders and undertakings, other than that he was the proper respondent. Her Honour's approach, in my view demonstrated that she gave consideration to the probative value of the multiple PSIO applications in the context of the other evidence which she heard.
4. The Magistrate considered the totality of the evidence which pointed to Dr McMahon being the focal point in terms of documents posted, content of threats and other material online such that she was "comfortably satisfied" that he was the respondent to the application. She acknowledged the unusual factual matrix. She considered Dr McMahon's evidence that he had just been advised by an unnamed Magistrate to just consent to the PSIO as not credible.
5. I find that there was no error in law. The fact that the appellant argued towards a different conclusion does not, of itself, establish error.

1. The principle in Briginshaw does not alter the civil standard of proof. Rather, it recognises that the process by which reasonable satisfaction is reached may require greater caution where allegations are serious or consequences are significant. It does not impose a higher or indeterminate standard between the civil and criminal thresholds. In the present case, the appellant did not identify an alternative standard of proof, nor any authority to support the proposition sought to be advanced.
2. The power of the Magistrate to make the extension order is founded in s83 of the Act to which Her Honour had regard.[14] The Magistrate only needed be satisfied that on the balance of probabilities, that if the order was not extended, Dr McMahon was likely to commit prohibited behaviour or stalking against the protected person, whether or not Dr McMahon committed prohibited behaviour or stalking against the protected person while the final order was in force; or complied with the order whilst it had been in force. The standard of proof for the making of the extension order is on the balance of probabilities clearly articulated in the statute. The fact that the appellant disputed identity did not change the gravity of the consequences that would flow from her finding. The consequences that can flow from a PSIO can be serious, and breaches can result in criminal charges. This applies to all PSIOs. The Magistrate applied the correct standard as required by the Act and there is no justification for requiring a heightened level of satisfaction of the standard.
3. In Byrne v The Owners of Ceresa Apartments Strata Plan 55597, it was held that:[15]

"If the Tribunal makes a legal error in the way in which it undertakes its fact finding, or a legal error in the way in which it construes that statute which it is applying in a particular case, or some other reasoning, then an appeal lies to correct that legal error."

4. I find that the Magistrate did not fall into error in the way that she applied the statute.

[1] AAA v County Court of Victoria & Ors [2023] VSC 13 at [50

[2] Conway v The Queen (2002) 209 CLR 203 at 208 [6]. 217 [29]; affirmed in a civil context in Windoval Pty Ltd v Donnelly [2014] FCAFC 127; (2014) 226 FCR 89 and 104 [95]-[96]

[3] Respondent's Outline of Final Submissions dated 24 February 2023 at [2]

[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw')

[5] [2018] HCA 51 at [6].

[6] [2025] VSC 350

[7] Respondent's Appeal Book dated 21 July 2025 ('RAB'), 262

[8] [2022] VSC 725 ('A2')

[11] Appellant's Outline of Submissions of Personal Safety Intervention Order Appeal (undated) at [13]

[13] Page v R [2015] VSCA 357 at 45

[15] [2016] WASC 153 [23]