Personal Safety Intervention Order Application
Court Location: Dandenong Magistrates Court
Facts:
Our clients were respondents to an application for a Personal Safety Intervention Order. They were owner occupiers of a commercial premises and were on the board of the body corporate for a collection of commercial premises.
The applicant was a tenant at one of the neighbouring commercial premises that formed part of the body corporate.
The applicant had been running their business in a way that was in breach of the body corporate rules, and breach action was being undertaken and handled by the third party professional who manage the body corporate.
The applicant was upset by this action and in response took out applications for intervention orders against both our clients, as they were on the board of the body corporate.
The applications contained a number of allegations, but mostly related to complaints made by our clients about his business. This in our view amounted to an abuse of process.
Result:
We at first attempted to have the parties go through mediation because of the close confinements of their working situation as there would have to be an ongoing relationship of some sort. However, that was unsuccessful because the Applicant made it clear that no negotiated resolution was going to be reached.
As a result, when the matter returned to Court, an application was made under Rule 6.02 of the Magistrates’ Court (Personal Safety Intervention Order Rules) 2011 to have the application struck out as “scandalous, frivolous or vexatious” and/or “otherwise an abuse of the process of the Court”.
It was submitted that the application was an abuse of process as it was in response to the breach proceedings and was designed to try and use these applications as leverage.
Furthermore, it was argued that the application was frivolous as it had no reasonable prospect of success. This was because there was nothing alleged to have occurred that could actually constitute Prohibited Behaviour as defined in the Personal Safety Intervention Order Act 2011. This is because the applicant’s allegations related mostly to our clients complaining of his illicit activity.
The Applicant tried to rely on additional allegations not put in his original application, however thanks to some quick thinking we demonstrated that these allegations were also frivolous and could not hope to be proved in Court.
In then end the Magistrate was persuaded by our extensive submissions and found that the Applicant’s case taken at its highest could not substantiate any grounds of Prohibited Behaviour and would not justify the making of an intervention order. It was found that the application was frivolous, given there was no way for the application to succeed.
This was an excellent result given our clients would have had to spend significant time and money in contesting the order, or be faced with the prospect of consenting to one. If an order was put in place it would have put them at risk of allegations of breach that could lead to criminal charges.
This result was one born of creative thinking and quick problem solving to identify what needed to be demonstrated to the Court to get the desired outcome. It required extensive preparation of persuasive submissions on the relevant law as to why the application should be struck out and highlights why a lawyer in these situations can save you time, money and stress.
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