Plaintiff v First Defendant

1 This judicial review arises from orders made in the Magistrates' Court on 14 June 2019. Personal safety intervention orders have been taken out against Ms Austin by a former student, Mr Dobbs. They are based on alleged behaviour going back to 2014. An interim intervention order was originally made on 26 August 2016. It was made final on 26 September 2016 and extended on 11 September 2017 (collectively the 'private intervention orders'). Ms Austin contests the factual basis upon which the private intervention orders are based saying that there are not and have never been grounds for making the orders.

2 In June 2019 the police applied to revoke the private intervention order and to substitute Detective Sergeant Dwyer as the applicant for intervention. The substitution was substantively identical to the private intervention orders but with Detective Sergeant Dwyer as the informant pursuant to s 15(e) of the Personal Safety Intervention Orders Act 2010 (Vic) (the 'PSIO Act 2010').

3 The existence of the private intervention orders have led to a number of appeals and judicial review proceedings. Detail of the various proceedings is outlined below. In part the substitution was based upon the ongoing service of documents for appeal related hearings on Mr Dobbs' wife. The police described this as a continuation of the harassment. The substitution would have the effect of the police being able to act on his behalf in future court hearings. This was the application listed for hearing on 14 June 2019. The application was served on the Ms Austin. She opposed it.

4 Ms Austin also emailed the Court on 11th June 2019, addressed to three different court email addresses attaching a summons and lengthy affidavit in support seeking that the private intervention order proceeding be stayed. [1] Her email identified that she would be in Court on 14th June and anticipated that her application would be heard that day. The emails were not responded to. She attended on 14th June to oppose the revocation of the private intervention order and the making of a police applicant order. She believed that her stay application was to be heard that day.

5 It became clear that the Magistrate was not aware of her stay application. Neither the legal representative of the police applicant nor Mr Dobbs (both of whom were at the Court precincts that day) were aware of or had been served with the stay application and supporting material. Because the stay application was not made on notice, the Magistrate would not deal with it on 14th June 2019. He proceeded to deal with the listed application to replace the existing private intervention order with a police applicant order. He made orders revoking the private intervention order and granting an intervention order on application of the police officer (the 'police intervention order') .

6 This judicial review identifies nine errors of law in the actions of the Magistrate on 14th June 2019. Ms Austin seeks that the orders be set aside. She also asks this Court to permanently stay the Magistrates' proceedings.

7 I should also say for completeness, that the order revoking the private intervention order did not form part of this judicial review but was appealed separately to the County Court. The County Court made an order on 25 October 2019 striking out the appeal and making consequential orders in the event that an application to reinstate the appeal was to be made.[2] A further judicial review has been commenced regarding the County Court order of 25 October 2019.

8 The Magistrates' Court as the second defendant has taken no active role and will abide the outcome of this proceeding.

9 The first defendant had made application to summarily dismiss the originating motion under s 62 Civil Procedure Act 2010 (Vic) on the basis that the proceeding has 'no real prospect of success'. Ms Austin disputes this and submitted that the summary judgment was an abuse of process.[3] She submitted that I should be cautious to dismiss matters summarily.[4] The application for summary dismissal was listed for hearing together with the trial on 6 December 2019.

10 In circumstances where the summary judgment application and the substantive matters are being heard together, and where I have heard argument on the substantive grounds, it is preferable that I deal with matters on their merits rather than by way of summary judgment.

11 I am not satisfied that any of the grounds of review are made out or that an error of law is demonstrated. In the absence of error, an application to this Court to stay proceedings in the Magistrates' Court is misguided and I do not grant the relief sought. I set out my reasons for these conclusions below.

12 The nine grounds of review fall into three broad categories. Grounds one to four go to the Magistrate's failure to deal with Ms Austin's stay application on 14 June 2019. The fifth ground identifies error in the granting of the police intervention order. The final four grounds deal with failures to afford procedural fairness and abuse of process.

Other Appeals and Judicial Reviews commenced by Ms Austin

13 There have been three Magistrates' Court proceedings:

(a) Civil proceedings under the PSIO Act 2010 commenced by Mr Dobbs in August 2016;

(b) Civil proceedings under the PSIO Act 2010 commenced by the police in June 2019;

(c) Criminal charges laid by Detective Sergeant Dwyer on 17 October 2016.

14 The criminal charges included failing to comply with the private intervention orders existing at that time. A contested hearing of the criminal charges commenced in the Magistrates' Court in November 2017 but was not concluded. The hearing of the criminal charges was to continue on 15 May 2018 but did not proceed. On that day Ms Austin chose to become self-represented. The Magistrate adjourned the proceeding because of the revised time estimate and because he formed a view that it was not appropriate that he continue to hear the case. Therefore both the criminal charges and the private intervention orders were adjourned to 21 January 2019. Ms Austin informed the Magistrates' Court at mention in December 2018 that she did not consent to the indictable charges being heard summarily. The contested hearing scheduled for 21 January 2019 could not go ahead. As a result, following a committal in April 2019 the criminal proceedings have been transferred to the County Court and are presently listed for hearing on 25 May 2020.

15 Since the initial interim intervention order was taken out in August 2016 Ms Austin has commenced a number of appeal and review proceedings.[5] They include the following judicial review proceedings that have been determined in the Trial Division of this Court:

(a) The decision of Judge Taft of 6 March 2018 dismissing as out of time an appeal against the making of the private intervention orders, which review was dismissed by Ginnane J;

(b) The decisions of Magistrates on 15 May 2018 and 21 January 2019 respectively, on each occasion adjourning the hearing of the private intervention order, which reviews were dismissed by Ginnane J;

(c) The decision of the Magistrate adjourning the criminal proceeding on 15 May 2018, which review was summarily dismissed by Derham AsJ;

(d) the Magistrate's declaration on 10 December 2018 of special witness status in the criminal proceeding, which review was dismissed by Coghlan J.

16 All of the above judicial review proceedings were at the time of hearing this judicial review subject to leave to appeal applications pending before the Court of Appeal. On 13 December 2019 all applications for leave were refused.[6]

17 It is unclear whether the application emailed to the Magistrates' Court on 11 June 2019 was filed in accordance with the rules. There is no indication of it having been accepted by the Registrar. Before me it was agreed that the summons and supporting affidavit had not been served.[7]

18 Even though it had not been served, Ms Austin contended that the Magistrate should have heard and determined it on that day. The Magistrates' Court (Personal Safety Intervention Orders) Rules 2011 (the 'PSIO Rules') provide specific rules for procedures to be followed in applications under the PSIO Act 2010. She said that the Magistrate erred because the Court did not:

(a) serve the stay application as it was required to do under r 8.09 of the PSIO Rules (first ground);

(b) grant, in exceptional circumstances, a stay application without serving it on any other person using his discretion available under r 14.02 of the PSIO Rules (second ground);

(c) stay the proceedings pending the determination of an appeal, under s 94 of the PSIO Act 2010 (third ground); and

(d) permit her the right to seek relief, being a stay of proceedings, pursuant to s 39 Charter of Human Rights and Responsibilities Act 2006 (Vic) (the 'Charter') (fourth ground).

19 Ms Austin relied first on rule 8 which deals with affidavits and in particular r 8.09 which provides:

Service of affidavits if party is unrepresented

The registrar must serve an affidavit on a party who does not have legal representation.

20 Mr Dobbs did not have legal representation in the PSIO Act 2010 proceedings. The first defendant submitted that r 8.09 has no relevant application to the service of a summons and is only directed to service of affidavits on unrepresented parties.[8] He also submitted that a failure by a Registrar to comply with r 8.09 does not amount to jurisdictional error.[9]

21 Leaving aside for one moment whose responsibility it was to serve the affidavit, or for that matter the application, the undisputed fact was that it had not been served. It was not appropriate for the Magistrate to deal with the application when one party had not been given notice of it. The Magistrate was correct to decline to hear the application on that day. Ms Austin and not the Court was required to properly file and serve her application. The rules provide the process which the Court must follow when it is required to give notice of documents. Even if it were the responsibility of the Court to serve the affidavit in support, the rules did not require the Court to have done so in the short time available prior to 14 June 2019.

22 At the hearing Ms Austin asked why the affidavit hadn't been served by the Court[10] and then said she would serve the documents herself now personally. The Magistrate said that 'thrusting it into his hand now is not a reasonable time'.[11] Given that the affidavit in support ran to twenty two pages, that observation was undoubtedly correct. She was warned by the Magistrate of what might happen if she breached the intervention order currently in place by attempting to serve the application personally.

23 There was no error on the part of the Magistrate in refusing to hear a stay application where the respondent to that application had not been served. If it was the responsibility of the Magistrates' Court to serve the affidavit on Mr Dobbs, there was no error in the fact that this had not occurred between 11th and 14th of June 2019.

24 Ms Austin submitted that the Magistrate was also in error by failing to use r 14.02. Rule 14.02 provides:

Stay of relevant decision

(1) An application under section 94 of the Act to stay the operation of a relevant decision must be filed.

(3) If there are exceptional circumstances, the Court may grant a stay without serving the application on any other person.

25 She submitted that pursuant to r 14.02 the Court should have exercised its power to grant her stay application without requiring service as exceptional circumstances existed.[12] She contended that the Magistrate was required to alert her to r 14.02(3) but did not do so.[13]

26 This ground has no merit. Rule 14.02 relates to stay applications made where an appeal against an order has been filed pursuant to s 93 of the PSIO Act 2010. Filing an appeal does not operate as a stay. An application must be made using r 14 to the Court that made the order under appeal. Ms Austin had not filed any outstanding appeal under s 93 as at June 2019 and so r 14.03 had no application to her, even if she could establish exceptional circumstances.

27 Related to the previous ground, Ms Austin also submitted that the Magistrate had wrongly applied s 94 of the PSIO Act 2010 and r 6.01 of the PSIO Rules. Section 94 of the PSIO Act 2010 provides that an appeal does not operate as a stay of the decision under appeal. It permits an application for a stay pending determination of the appeal. Rule 14.02 deals with the procedure to be applied when such a stay application under s 94 is made. Ms Austin's appeal to the County Court had been struck out by Judge Taft in June 2018. She argued that her County Court appeal was not finally determined by Judge Taft as she was still pursuing her appeal rights in respect of that decision. I do not accept this submission. Further appeals from the decision of Judge Taft, while still unresolved and pending before this Court as at 14 June 2019, are not appeals pursuant to s 93 of the PSIO Act 2010. The provisions relied on by Ms Austin do not relate to appeals in a generic sense but specifically to appeals instituted under s 93 of the PSIO Act 2010. I accept that, as the first defendant submitted, r 14.02 had no relevance to the stay application that the plaintiff wished to have heard.

28 There was no error by the Magistrate in refusing to deal with the application. He was not required to and did not apply s 94 of the PSIO Act 2010.

29 Ms Austin also relied on a failure to correctly apply r 6.01. This rule permits an application to stay a proceeding on the basis that it is a proceeding that is 'scandalous, frivolous or vexatious or is otherwise an abuse of process'. Ms Austin's stay application clearly wanted to argue the merit of the private intervention orders made against her as being an abuse of process or otherwise stayed as vexatious. That was the basis of her supporting affidavit sworn 11 June 2019. However, on 14 June 2019 there was no adjudication of the stay application on its merit because of the absence of service on the respondent. The Magistrate made no error of application of r 6.01. The rule was not required to be applied by him as he was not adjudicating on the merit of the application.

30 The final error outlined in the grounds of appeal relating to the stay application was that Ms Austin was denied her right under s 39 of the Charter to seek the remedy of a stay. She argued that she was denied her right to seek a stay on the ground that the initial grant of the private intervention orders was unlawful.[14]

31 Section 39 is found within Division 4 - OBLIGATIONS ON PUBLIC AUTHORITIES. It provides:

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

32 The availability of s 39 is dependent upon there being an act or decision of a public authority. A public authority is defined in s 4 of the Charter. Ms Austin's submission[15] was that the definition of a public authority includes a Magistrate. The contrary is the case: the definition expressly excludes a court or tribunal 'except when it is acting in an administrative capacity'.[16] In her statement dated 6 December 2019 which formed the basis of her oral submissions,[17] Ms Austin changed her submission arguing that the Magistrate did not consider the proceeding on 14 June to be a hearing and so argued that he was acting in an administrative capacity.

33 A Magistrate is a judicial officer. The definitional section of the Constitution Act 1975 (Vic) makes this clear. In hearing and determining applications pursuant to the PSIO Act the Magistrate was acting in a judicial capacity. He did so when deciding the police intervention application. Even though he did not deal with the merit of Ms Austin's stay application, only the question of whether or not it could be heard on that day, he was nevertheless acting judicially and not administratively.

Was there error in making the police intervention order?

34 Ms Austin submits that the Magistrate wrongly applied s 35 of the PSIO Act 2010 in granting the police intervention order.

35 First, Ms Austin submits that the application made by the police was not for an interim order as the relevant box was not ticked on the form. However, it was confirmed at the hearing before the Magistrate at the outset that an interim order only was being sought.[18] Further s 35 of the PSIO Act 2010, relied on for this ground of appeal, specifically deals with the power to make interim orders.

36 To decide the police application the Magistrate had to be satisfied that the requirements of s 35 were met. Those requirements are:

(a) On the balance of probabilities, that an interim order is necessary pending a final decision about the application -

(i) To ensure the safety of the affected person; or

(ii) To preserve any property of the affected person, and

(b) That it is appropriate to make the order in all the circumstances of the case.

37 The application relied on the sworn evidence of Trent Dwyer as set out on page 2 of the application:

There is a current Interim PSIO where DOBBS is the applicant. This application is being taken out in order to replace the current interim order with a police applicant order, given the ongoing nature of the situation. AUSTIN is the ex-high school teacher of DOBBS, who was terminated from her employment in October 2014 due to inappropriate behaviour towards him. Between October 2014 and December 2016, AUSTIN has led a relentless stalking campaign against DOBBS, through letters / cards delivered to his mother's address in Western Australia, phone calls & messages, falsified social media accounts, and online blogs. AUSTIN was arrested and remanded in December 2016 after breaching bail and a previous PSIO and remanded into custody for approximately 12 months. Since March 2017, there has been countless court dates in relation to this matter, both criminally and civilly. AUSTIN has listed appeals in the County Court and Supreme Court in her attempts to continue to harass DOBBS. Given the current PSIO is not a police application, Austin has been able to track down and contact DOBBS wife, [name], in order to continuously serve documents for appeal related hearings for which police cannot act or assist DOBBS due to police not being a party to the current application. Police wish to replace the current interim PSIO with this application to better protect DOBBS from the continued harassment by AUSTIN that has continued since 2014. A police application PSIO will better protect DOBBS and allow Victoria Police to act on his behalf at all future court hearings relating to this matter.[19]

38 The first defendant submitted the Magistrate appropriately took into account all relevant circumstances in granting the Police PSIO and the fact that it did not in substance alter the existing interim order as it merely replaced the previous order with the same conditions.[20]

39 Determining matters on an interim basis, the Court was not required to hear and decide contested factual matters. If the sworn evidence placed before it satisfied the Court of the requisite matters, then an interim order would be made. Ultimately, the Court determined that it would make the order replacing 'in like terms an order which has been extant now since 2017'[21] until a contested hearing could be listed. As such, it was submitted both elements, safety and general appropriateness, were met.

40 Ms Austin asserts that "there is nothing in the First Defendant's application that indicates the safety of the 'affected' person is at risk[22]". The sworn evidence of Detective Sergeant Dwyer outlined above provided the necessary factual basis. It set out allegations of identified stalking behaviour, breaches of prior personal safety intervention order, harassment from ongoing service of documents in appeal related proceedings and the ongoing nature of Ms Austin's alleged conduct. It is sworn evidence, untested, upon which a Court may act on an interim basis. Whilst Ms Austin contests this evidence and asserts that there is no risk to his safety, that is precisely the factual contest to be adjudicated on final hearing.

41 There is no error in the application of the facts outlined to the requirements of s 35 of the Act.

42 In grounds 6 to 9 Ms Austin submits that she was denied procedural fairness in ways that I will canvas in more detail below. She said she was denied an adequate opportunity to make submissions, was not treated equally with the legal representative who appeared to make the application, and that the hearing was not conducted in a way that was competent, independent, impartial and fair.

43 Ms Austin submitted that Magistrate O'Callaghan denied her an adequate opportunity to make submissions because he did not permit her to read all of her affidavit aloud in Court at the day of hearing.[23] The affidavit she wished to read from was a lengthy chronology of matters which at first she would not give to the Court or to her opponent. The Magistrate allowed her to read part of the document even though it had not been exchanged and ultimately persuaded her to provide him with a copy which he read in full. As such, her desired submissions were in full before the Court.[24] Having read the document, he invited her to make any further comments she wished. In my view the Magistrate accorded every opportunity for Ms Austin to make submissions.

44 Ms Austin submits that the Magistrate's failure to act in a non-discriminatory manner toward her was a breach of her rights under s 8 of the Charter. This ground was said to be based upon comments that the Magistrate made about Kaniva where Ms Austin lives. When submitting to the Magistrate that Kaniva was a very small town and that she was related to a large proportion of the population the Magistrate commented "I'm aware of the town of Kaniva, by the way. I know the town of Kaniva and I suspect I know a number of your relations. So I know the place."[25]

45 I fail to see how this comment in response to a detailed submission could be construed as discriminatory in a way prohibited by the Charter and the Equal Opportunity Act 2010 (Vic). The plaintiff's submissions identified discrimination based upon employment status. This was said to arise because she was identified in the police application as an ex-teacher. However, there was nothing in the Magistrate's conduct that bore in any way upon her previous employment status. Ms Austin failed to demonstrate either that the comments made by the Magistrate about her relatives were discriminatory at all or were discriminatory in a prohibited way.

46 Her eighth ground contended that "Magistrate O'Callaghan's failure to conduct the proceedings in a competent, independent, impartial and fair manner, was a denial of my rights under section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic)[26]". Most of the submissions under this ground referenced a selection of media articles by or about the Magistrate which had no bearing on the way in which the case was conducted on 14 June 2019. Other submissions were general criticisms about the workload of the Magistrates Court. The submissions fail to point to a lack of impartiality or independence in the hearing itself and largely repeat the assertion of an unequal opportunity to present her case.[27]

47 Under this ground Ms Austin complains that she was not allowed to address the allegations made against her and that the Magistrate stated "he had to give the highest regard to anything put to the court by a police officer". This quote by Ms Austin mis-states the Magistrate's comments. In his reasons the Magistrate said:

In a court such as this, as an interim applications court, I'm not in a position to give full attention to the factual matters underlying the police case. I must take the police case at its highest. It is an unusual step for the police to take this action and I - in my view I'm bound to put the police case at its highest until its properly tested at a hearing.

48 There was nothing to suggest that the Magistrate placed greater weight on the evidence because it was given by a police officer or that he held it in the highest regard because it was given by a police officer. Rather, it was an orthodox statement that he was acting on evidence that was not yet tested as it should be in a full hearing.

49 Ms Austin's ninth ground relies on the Wednesbury principle of unreasonableness.[28] She submitted both the Magistrate's stay decision and the new intervention order decision[29] were unreasonable. Ms Austin argues that there is no factual basis for making the new intervention order as there was no 'objective risk' to Mr Dobbs' safety.[30]

50 Unreasonableness of a decision maker in a legal sense was explained and applied in Minister for Immigration and Citizenship v Li.[31] It arises from a presumption that statutory powers involving a discretion are intended to be exercised reasonably by an administrative decision maker. Whether legal unreasonableness is an appropriate ground of review of an inferior court exercising judicial power, giving rise to a jurisdictional error is less clear. The first defendant submitted that in any event in exercising a power to grant an interim order under s 35 PSIO Act 2010, the Magistrate was not exercising a discretionary power.

51 Ms Austin's submissions on this ground confuse her own subjective perception of risk with the exercise to be undertaken by the Magistrate. The evidence of Detective Sergeant Dwyer, while contested by Ms Austin, was capable of demonstrating compliance with the matters prescribed by s 35 of the PSIO Act 2010 and therefore providing an evident and intelligible justification for the order made.

52 The Magistrate explained his reasons. He emphasised the interim nature of the order he was making and the opportunity for Ms Austin to fully and properly articulate her opposition. He said that the order he was making did not change the nature of the protection of Mr Dobbs or the restrictions on Ms Austin, save that it would allow for efficiencies as well as shielding Mr Dobbs from multiple appeals launched by Ms Austin. Ms Austin may disagree with the reasons but they are clear and easily understandable.

53 It is clearly frustrating for Ms Austin that she has not had the opportunity to contest the underlying allegations upon which the intervention orders have been based. As things presently stand, the hearing of the criminal charges are due to be heard in the County Court in May 2020.

54 Ms Austin seeks the police intervention order (K11461342) be set aside and the proceeding be permanently stayed.[32] She also asks this Court to stay the proceeding in which the (now revoked) private intervention orders were made although the making of that order was not the subject of this judicial review.

55 In oral submissions, Ms Austin made clear that in seeking a stay she wanted the intervention orders 'gone' or 'overturned'.[33] In the absence of any error leading to the setting aside of orders, it would be an unusual step for this Court to intervene in the timing of proceedings in another Court. This is particularly so where an avenue exists to seek a stay of proceedings in the Court where they have been issued.

56 Ms Austin has not persuaded me that I have the power to order a stay, but even if I did, I would not be persuaded to do so. Essentially I have come to this conclusion for three reasons. First, there is an avenue to seek a stay in the Court where the proceedings are on foot that should be used and such an application has sought to be filed. Second, any stay will have no immediate utility because the private intervention order has been revoked and the police intervention order is adjourned pending the hearing of the criminal charges. Third, the appropriate disposition of both intervention proceedings can be better determined after the criminal charges are dealt with and so it is not presently appropriate to order a permanent stay.

57 Finally, the grounds for the stay are really the contested factual matters underlying the intervention orders and the length of time that she has been subject to those orders without an opportunity to contest them. I am not able in this proceeding to determine either of those matters on their merits.

[1] Magistrates' Court proceeding G12353529.

[2] Orders of Judge Pillay in Court Book filed by Plaintiff in proceeding S ECI 2019 03477, (the 'Court Book') E340, Exhibit FAIOSA6.

[3] Transcript of Proceedings, Austin v Dwyer & Ors (Supreme Court of Victoria, S ECI 2019 03477, Forbes J, 6 December 2019) 28.

[5] Full and comprehensive chronologies of proceedings are found in the various trial division Judgments and are not repeated here.

[6] Austin v Dwyer [2019] VSCA 296.

[8] First Defendant's Outline of Submissions dated 26 November 2019 [7].

[9] First Defendant's Outline of Submissions dated 26 November 2019 [8].

[10] Magistrates' Court Transcript (n 7), 9.

[15] Plaintiff's Submissions dated 18 November 2019 [29] and 1 December 2019 [30].

[16] Charter of Human Rights and Responsibilities Act 2006 (Vic), section 4(1)(j).

[17] Exhibit D, 'Plaintiff's Statement' dated 6 December 2019.

[18] Magistrates' Court Transcript (n 7), 1.

[19] Application for an Intervention Order in Court Book (n 2), E276.

[20] First Defendant's outline of submissions dated 26 November 2019 [20.5].

[21] Magistrates' Court Transcript (n 7) 32.

[22] Plaintiff's submissions dated 1 December 2019 [33].

[25] Magistrates' Court Transcript (n 7) 16.

[26] Plaintiff's Submissions dated 1 December 2019 [51].

[28] Originating Motion for Judicial Review filed 23 July 2019 [ground 9].

[31] [2014] FCAFC 1; (2013) 249 CLR 332.

[32] Originating Motion for Judicial Review filed 23 July 2019 [1].