The Court: Dandenong Magistrates Court
The Lawyer: Daniel Walsh
The Charges:
The Allegations:
Our clients were owner-occupiers of a commercial premises and also served on the board of the body corporate for a collection of commercial premises, including their own.
A tenant at one of the neighbouring businesses had been operating their business in a manner that breached the body corporate rules, and action was being taken by a third-party professional who managed the body corporate. Unfortunately, the neighbouring tenant was upset by this action. In response, he submitted applications for Personal Safety Intervention Orders against both our clients, as they were members of the body corporate’s board.
The applications contained a number of allegations, but mostly related to complaints made by our clients about his business. This really amounted to an abuse of process, but unfortunately, this is not an uncommon story.
At Court:
Due to the close confines of their working situation and the fact that an ongoing relationship of some sort would be required, our solicitor first attempted to have the parties undergo mediation. However, the Applicant made it clear that no negotiated resolution was going to be reached, as he wanted to negotiate the breach proceedings over which our clients had no control.
Our solicitor submitted that the application was an abuse of process, as it was made in response to the breach proceedings and was designed to use these applications as leverage.
Furthermore, our solicitor argued that the application was frivolous, as it had no reasonable prospect of success. There was nothing alleged to have occurred that could actually constitute ‘prohibited behaviour’ as defined in the Personal Safety Intervention Orders Act 2010. This is because the Applicant’s allegations primarily related to our clients’ complaints about his illicit activity.
The Allegations:
In the end, the Magistrate was persuaded by our solicitor’s 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 order, and therefore struck out the applications. It was found that the application was frivolous, given that there was no way for the application to succeed.
This was an excellent result, given that our clients would have had to spend significant time and money contesting the order or face the prospect of consenting to it. If an order had been put in place, it would have put them at risk of allegations of breach that could lead to criminal charges.
This result was the product of creative thinking and quick problem-solving, which identified what needed to be demonstrated to the court to achieve the desired outcome. It required extensive preparation of persuasive submissions on the relevant law as to why the application should be struck out. This case highlights why hiring a lawyer in these situations can save you time, money and stress.
