A v I

Case [2022] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

A v I

[2022] SASC 22

Judgment of the Honourable Justice Stein 

17 March 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - NATURE OF APPEAL

MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - REQUIREMENTS FOR MAKING ORDER

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES

The appellant filed an ex parte application seeking an intervention order against the respondent, her son. The respondent has resided in a property owned by the appellant since 2002. In the application, the appellant sought, among other things, that the respondent vacate the property. The Magistrate refused the application. The appellant appeals the dismissal of the application on grounds which include that the Magistrate adopted an erroneously narrow definition of “abuse” and that the alleged abuse, including in relation to an asserted denial of financial autonomy through the control, possession and enjoyment of the appellant’s property, falls within the relevant definitions in the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“Act”).

Held, granting permission to appeal and dismissing the appeal:

1.The dismissal of the application was an interlocutory decision requiring permission to appeal.

2.The questions of law to be addressed in the appeal constitute sufficient basis upon which to grant permission to appeal.

3.The definition of “act of abuse” in the Act is broad and “unreasonable and non-consensual denial of financial autonomy” may include conduct relating to the control of real estate or aspects of a person’s financial affairs.

4.The phrase “without intervention” contained in s 6 of the Act is a reference to “without intervention” by virtue of the provisions of the Act.

5.The appellant failed to make out proper grounds for issuing an intervention order under the provisions of the Act in the particular circumstances of the matter.

6.Further, in the particular circumstances of the matter, the issuing of an intervention order under the Act would not be appropriate.

Acts Interpretation Act 1915 (SA) s 22; Family Law Act 1975 (Cth) s 4AB; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 5, 6, 8, 10, 21; Legislation Interpretation Act 2021 (SA) s 14; Magistrates Court Act 1991 (SA) s 42; Residential Tenancies Act 1995 (SA); Supreme Court Criminal Rules 2014 (SA) r 104V, referred to.

Conant v The Queen (2021) 138 SASR 239; Draoui v Le [2021] SASCA 33; House v The King (1936) 55 CLR 499; Kiparoglou v Fantinel [2021] SASC 90; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Rana v Gregurev [2015] SASC 37; Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; White v Police [2018] SASC 124, applied.
Computer Edge Pty Ltd v Apple Computer (1984) 54 ALR; Licul v Corney (1976) 180 CLR 213, discussed.

Chevron Australia Holdings v Federal Commissioner of Taxation (2017) 251 FCR…

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A v I [2022] SASC 22
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[2022] SASC 22
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CaseChat Overview and Summary

In this appeal, the appellant sought an intervention order against the respondent under the Family and Domestic Violence Protection Act 2020 (SA). The appeal arose from the dismissal of the appellant's application for an intervention order by the Magistrate. The appellant sought permission to appeal the Magistrate's decision, which was granted. The primary legal issue was whether the appellant could appeal the interlocutory decision of the Magistrate, which dismissed the application for an intervention order. The appellant contended that the Magistrate had erred in law in his interpretation of the term "act of abuse" under the Act and in his finding that there had been no act of abuse of recent times.

The Supreme Court of South Australia examined the nature of the appeal and the relevant statutory provisions. The court noted that the dismissal of an ex parte application for an intervention order is interlocutory in nature, and permission to appeal such an order is required. The court considered the principles of appellate restraint and the need for special reasons to grant permission for an interlocutory appeal. The court found that the questions of law involved in the appeal constituted sufficient basis to grant permission to appeal, as the interpretation of the term "act of abuse" under the Act was a significant issue that required clarification.

The court also examined the Magistrate's reasoning in dismissing the application for an intervention order. The court agreed with the Magistrate's interpretation of the term "act of abuse" and found that the appellant had not established proper grounds for issuing an intervention order under the provisions of the Act. The court held that, in the particular circumstances of the matter, the issuing of an intervention order would not be appropriate.

The Supreme Court of South Australia dismissed the appeal, finding that the appellant had not demonstrated an error of law on the part of the Magistrate that warranted interference in the exercise of discretion. The court held that the appellant failed to make out proper grounds for issuing an intervention order under the provisions of the Act in the particular circumstances of the matter. The court also found that the issuing of an intervention order under the Act would not be appropriate in the circumstances.

This decision highlights the importance of correctly interpreting statutory provisions and the need for special reasons to grant permission to appeal an interlocutory decision. The court's analysis of the relevant statutory provisions and the principles of appellate restraint demonstrate the need for careful consideration of the appropriate circumstances in which to grant permission for an interlocutory appeal.

Orders

Orders of the court

Held, granting permission to appeal and dismissing the appeal:

1. The dismissal of the application was an interlocutory decision requiring permission to appeal.

2. The questions of law to be addressed in the appeal constitute sufficient basis upon which to grant permission to appeal.

3. The definition of “act of abuse” in the Act is broad and “unreasonable and non-consensual denial of financial autonomy” may include conduct relating to the control of real estate or aspects of a person’s financial affairs.

4. The phrase “without intervention” contained in s 6 of the Act is a reference to “without intervention” by virtue of the provisions of the Act.

5. The appellant failed to make out proper grounds for issuing an intervention order under the provisions of the Act in the particular circumstances of the matter.

6. Further, in the particular circumstances of the matter, the issuing of an intervention order under the Act would not be appropriate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In his reasons for decision dated 9 July 2021 (“Judgment”), the Magistrate noted the dealings between the parties in relation to the Property and the appellant’s attempts to obtain vacant possession. The Magistrate stated it was agreed that the respondent was previously permitted to reside at the Property subject to him paying rent and that the respondent had not, with the occasional exception, paid any rent to the appellant. The Magistrate also noted the appellant’s feelings of intimidation arising from the respondent’s anger and his shouting upon her requests to vacate the Property. The Magistrate set out the grounds for issuing an intervention order as contained within s 6 of the Act and noted the definitions in the Act. The Magistrate considered the incident causing the appellant to stumble (which had occurred five years prior) was “the only act which could be described as an act of abuse” and otherwise that the respondent “became angry whenever the applicant wanted to discuss the sale of the house”.[1] [1] Reasons for Decision, 9 July 2021. Noting that he was asked to find that it would be reasonable to suspect that the respondent would commit an act of abuse if he was asked to vacate, the Magistrate stated that, while the appellant’s fear may be genuine, he thought what the appellant really wanted was to have vacant possession of the Property. The Magistrate considered he must be satisfied the respondent is likely to commit an act of abuse against the appellant. The Magistrate stated:[2]He may become angry, which in the circumstances would be understandable but I am not convinced such a reaction could properly be described as an act of abuse. Indeed there has been no conflict between the Applicant and the Defendant in the last five years. In the absence of any conflict or act of abuse of recent times I cannot be so satisfied. [2] Ibid.General principles on appeal The Act provides for applications for an intervention order to be made to the Magistrates Court.[3] [3] Section 20(1) of the Act; “Court” is defined in s 3 of the Act. This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) (“Magistrates Court Act”)[4] and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (“Rules”). [4] Groom v Police (No 3) (2013) 231 A Crim R 1, [22]-[28] (Sulan J). Pursuant to r 104V(1)(a) of the Rules, the hearing is to occur by way of re‑hearing. The Court may in its discretion hear further evidence pursuant to r 104V(1)(c), and, if the interests of justice so require, s 42(4) of the Magistrates Court Act. In order to interfere in the exercise of discretion, some error of the kind described in House v The King (“House v The King”)[5] must be demonstrated.[5] (1936) 55 CLR 499. In Draoui v Le,[6] Doyle J, in referring to House v The King, remarked:[7]As such, the appeal is subject to the principles of appellate restraint in House v R. In accordance with these principles, an appellate court may intervene in two broad categories of case. First, if it is established that the judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect them, has mistaken the facts, or has not taken into account some material consideration. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure to properly exercise the relevant discretion, despite the precise nature or source of the error not being identifiable. These two categories of case are sometimes distinguished from each other by referring to them as process and outcome errors, or as specific and inferred errors.[Citations omitted][6] [2021] SASCA 33. [7] [2021] SASCA 33 at [71]. Preliminary question – interlocutory or final?

Ratio Decidendi

Legal Principle Established

In Computer Edge Pty Ltd v Apple Computer Inc, Gibbs CJ said that in applying the test of whether or not the judgment finally determines the rights of the parties, the Court must consider the legal rather than the practical effect of the judgment.[13] [13] (1984) 54 ALR 767 at 767-768. Consideration In Rana, the question of whether permission to appeal was required was not expressly addressed. The orders made by Peek J included an order for permission to appeal insofar as it was necessary. I do not regard the decision as authority for the proposition that the dismissal of an interim intervention order is a final judgment for the purposes of s 42 of the Magistrates Court Act. In Kiparoglou v Fantinel,[14] Kourakis CJ confirmed that a dismissal of an ex parte application for an intervention order is interlocutory in nature. He said:[2]The dismissal of an ex parte application for an intervention order is an interlocutory order. It is necessarily so because the respondent is not present. There cannot be a final determination of any issue as between an applicant and any other person in the absence of an opposing party.[3] For that reason, notwithstanding the dismissal of an ex parte application for an intervention order, another application might subsequently be made. True it is that as a matter of procedure the Magistrates Court, on a subsequent application, may insist on the identification of a change in circumstances. That requirement is not based on the finality of the earlier order of dismissal. It is a rule of practice governing the hearing of interlocutory applications which is calculated to guard against an abuse of process.[4] If a respondent were present, findings made on the application for an intervention order may bind the parties as to whether past alleged incidents did or did not occur and whether these justified the making of an intervention order. An issue estoppel would arise. However, that is not generally the case on an application for an interim intervention order and it is not this case.[14] [2021] SASC 90. It is also not this case. The application was brought ex parte and the dismissal of the application was an interlocutory order. Permission required – special reasons It follows that permission to appeal is required pursuant to s 42(1a)(c) of the Magistrates Court Act. Counsel for the appellant submitted that special reasons were made out. He submitted that the requirement for special reasons to appeal an interlocutory matter stems from case management principles and the presumption against fragmentation of proceedings. Among other matters, he pointed out that, in this case, there could be no fragmentation of the proceedings. He submitted that there is an important question of law to be decided and the error in the Magistrate’s judgment is manifest on the face of the record. In Shahin v El-Shafei; El-Shafei v Shahin,[15] Parker J considered the operation of s 42(1a)(c) of the Magistrates Court Act. He agreed with the view of Sulan J, expressed in Groom v Police (No 3),[16] that the words “before commencement or completion of the trial” in s 42(1a)(c) only operate when they are relevant and that the Court has power to grant permission for an interlocutory appeal if it is satisfied that there are special reasons why that would be in the interests of the administration of justice.[17] [15] (2018) 132 SASR 126.[16] (2013) 231 A Crim R 1.[17] (2018) 132 SASR 126 at [44]-[45].