AB (a pseudonym) v YZ (a pseudonym)

Case [2025] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

AB (A PSEUDONYM) v YZ (A PSEUDONYM)

[2025] SASC 126

Judgment of the Honourable Justice Gray 

1 August 2025

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

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - SERVICE OF NOTICE

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

MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE

This is an appeal against a decision in the Magistrates Court to confirm an interim intervention order under s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’).

On 12 January 2024, the respondent filed an application for divorce in the Family Court and subsequently, on 13 January 2024, reported to police an alleged aggravated assault by the applicant, for which the applicant was arrested by police. The applicant was issued with an interim intervention order. From 15 January 2024 to 21 March 2024, the applicant appeared in the Magistrates Court and challenged the basis of the police intervention order. The police then indicated an intention to withdraw the intervention order, which was done by 23 May 2024. That same day, the respondent successfully applied for a private interim intervention order. Subsequent hearings concerned service of the private order on the applicant, who was not in attendance at the proceedings.

On 27 June 2024, the applicant was not in attendance and the Magistrates Court made orders for service via email under s 21(8a)(b) of the Act. The interim intervention order was confirmed as a final order on 4 July 2024.

The applicant appeals to this Court alleging the following: inadequate notice of the proceedings; procedural unfairness; judicial error in issuing orders, including allegations of corrupt conduct; and lack of jurisdiction.

Held, refusing permission to appeal, refusing an extension of time, and dismissing the appeal:

1.The Act specifically contemplates that an application for a private interim intervention order may be heard ex parte: [42]

2.The applicant was given notice of the interim intervention order in accordance with the requirements of the Act (s 21(8a)): [56]

3.The applicant accepted on appeal that he had actual notice of the interim intervention order prior to the confirmation hearing: [15], [46] 

4.The applicant was properly served with the interim intervention order in accordance with the statutory requirements and had actual notice of the proceedings and was given notice prior to the confirmation hearing of that hearing: [32], [39], [46] 

5.The applicant has not demonstrated any denial of procedural fairness, nor any resulting practical injustice: [57]

6.The grounds of appeal concerning alleged judicial error in issuing the orders and alleged corrupt conduct are without merit: [65]

7.The applicant has not identified any manner in which the Act confers power upon the Magistrates Court which would impermissibly trespass upon any area of Commonwealth power: [71]

Australian Constitution s 51(xxii); Family Law Act

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AB (a pseudonym) v YZ (a pseudonym) [2025] SASC 126
Case
[2025] SASC 126
Decision Date

CaseChat Overview and Summary

In AB v YZ, the applicant sought an extension of time within which to appeal against a Magistrates Court decision to confirm an interim intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The interim intervention order was issued on 2 May 2024, and the applicant filed his appeal on 10 January 2025. The appeal was based on numerous grounds, including alleged procedural unfairness due to the lack of notice of the proceedings and the alleged insufficiency of the evidence to justify the intervention order. The court had to determine whether the appeal was arguable, whether the procedural fairness of the proceedings was compromised, and whether the intervention order was justified.

The court addressed the legal issues by considering the statutory requirements for service of notice and the principles of procedural fairness. It examined whether the applicant had received adequate notice of the proceedings and whether the lack of notice prejudiced the applicant’s right to a fair hearing. The court also assessed the sufficiency of the evidence presented to justify the intervention order and whether the Magistrates Court had exceeded its jurisdiction. In assessing these issues, the court referred to the principles articulated in Knight & Metters, which emphasised the importance of procedural fairness and the adequacy of notice in legal proceedings.

The court concluded that all grounds of appeal were lacking in merit. It found that the applicant had received adequate notice of the proceedings and that there was no procedural unfairness. The court further determined that the evidence was sufficient to justify the intervention order and that the Magistrates Court had not exceeded its jurisdiction. The court found that none of the grounds of appeal presented an arguable case, and thus, it was not in the interests of justice to grant permission to appeal or to extend the time for filing the appeal.

The appeal was dismissed, and the court directed the parties to address the question of costs. This decision underscores the importance of procedural fairness in legal proceedings and the requirement for adequate notice to ensure that parties are aware of and can respond to the proceedings against them.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for an extension of time within which to appeal against a decision of the Magistrates Court to confirm an interim intervention order under s 23 of the Intervention Orders (Prevention of Abuse) Act2009 (SA) (‘the Act’).[1] The applicant filed his appeal on 10 January 2025. The confirmation of the interim order was made on 4 July 2024. The interim intervention order was made on 2 May 2024. The applicant makes complaint of at least eight grounds of appeal in the amended appeal grounds, as well as a number of additional complaints in written submissions.[2] [1] The applicant, who was self-represented on this appeal, also seeks to appeal against the issue of an interim intervention order and the manner of service pursuant to s 21 of the Act. [2] ‘FDN32 Amended Appeal Grounds - Revision 2’, Submission in SCCRM-25-001318, 22 April 2025 (‘FDN32’). Background The documents filed in the Magistrates Court[3] provide the following by way of background. On 12 January 2024, the respondent to this appeal filed an application for divorce in the Family Court.[4] The respondent then, on 13 January 2024, reported to police an aggravated assault by the applicant which was said to have occurred on 21 July 2023.[5] On 13 January 2024, police officers attended at the applicant and respondent’s home and on 14 January 2024, the applicant was charged for aggravated assault and arrested by police.[6] The applicant was refused police bail.[7] On 14 January 2024, the applicant was issued with an interim intervention order (the ‘police interim intervention order’).[8] [3] The documents were received on the most part without objection by the parties on the Appeal: Exhibit A1, ‘Appellants Appeal Book’, Submission in SCCRM-25-001318, 17 March 2025 (‘AAB’); Exhibit R1, ‘Respondents Appeal Book’, Submission in SCCRM-25-001318, 24 March 2025 (‘RAB’). [4] ‘FDN13 Written Submissions of the Appellant’, Submission in SCCRM-25-001318, 17 March 2025, 12 [53] (‘FDN13’); ‘FDN24 Written Submissions of the Respondent’, Submission in SCCRM-25-001318, 15 April 2025, 5 (‘FDN24’): see Annexure A. [5] RAB (n 3) 9-39 (‘Affidavit of Protected Person – Support Application for Intervention Order’, Submission in MCCRM-24-015235, 28 April 2024) (‘Affidavit of Protected Person’); Exhibit DFA34, ‘Audio Recording of Magistrates Court Hearing on 2 May 2024’, received as Exhibit A3 and indexed in ‘FDN23 Affidavit of [AB]’, Submission in SCCRM-25-001318, 8 April 2025 (‘FDN23’): See also, AAB (n 3) 62 (Statement of Factual Matters Supporting Police Issued Interim Intervention Order, 15 January 2024) (‘Interim Intervention Order’).[6] AAB (n 3) 25 (‘Affidavit of [YZ]’, 28 April 2024); FDN13 (n 4) 8 [26], [31]. [7] FDN13 (n 4) 8-9 [31]. [8] FDN13 (n 4) 8-9 [31]; AAB (n 3) 25: see Interim Intervention Order (n 5) at 35. On 15 January 2024, the applicant was brought before a Magistrate at the Adelaide Magistrates Court and was granted bail to reappear before the Mount Barker Magistrates Court on 25 January 2024.[9] On 24 January 2024, the applicant filed an affidavit in the police interim intervention order proceedings claiming that SAPOL had not established that there was reasonable suspicion that the applicant would, without intervention, commit an act of abuse against the respondent.[10] On 25 January 2024, the applicant appeared before Magistrate Schulz at the Mount Barker Magistrates Court in relation to the aggravated assault charge and the police interim intervention order. On 19 February 2024, the applicant filed a response to the police interim intervention order.[11][9] FDN13 (n 4) 9 [32].[10] AAB (n 3) 75 (‘Affidavit of Person Other than Protected Person’, Submission in MCCRM-24-001753, 24 January 2025). [11] FDN13 (n 4) 10 [40].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Act specifically addresses the issue of inconsistency of an order made pursuant to the the Act, with an order made pursuant to the Family Law Act.[103] The applicant has not identified any manner in which the Act confers power upon the Magistrates Court which would impermissibly trespass upon any area of Commonwealth power, nor has the applicant identified any manner in which the Magistrates Court exceeded its power in this case. I reject the applicant’s submissions concerning this ground of appeal. The applicant has not identified that the Magistrates Court lacked jurisdiction to make the orders that were made.[103] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 16.Conclusion To the extent that permission to appeal is required, applying the test articulated by Stanley J in Thakur, were it not for the view I have ultimately formed concerning lack of merit in any of the grounds of appeal, I would otherwise have granted permission to appeal in respect of the grounds concerning procedural fairness in so far as those grounds related to the lack of disclosure of the Family Court proceedings and other matters, and the alleged lack of notice of the hearing.[104] Those matters are arguable, however ultimately having considered the submissions advanced I have formed the view that these grounds lack merit. It is therefore not in the interests of justice to grant permission to appeal. [104] FDN32 (n 2), (a)(vi)(1)-(2). In my view, all grounds of this appeal, being those within FDN32,[105] are ultimately lacking in merit and I am therefore not persuaded that it is in the interests of justice to grant permission to appeal, nor is it in the interests of justice to extend time. [105] Ibid (a)-(b). I would not grant an extension of time. I would not grant permission to appeal. I dismiss the appeal. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Both the question of permission to appeal and the extension of time concern the question of whether there is an arguable case. In this case, submissions were received from the parties on the question of permission, the extension of time and the substantive issues on the appeal, it is therefore convenient to consider the merits of the appeal, before returning to the questions of permission and the extension of timeConsideration in respect of grounds of appealAlleged lack of notice[64][64] FDN32 (n 2), (a)(i)-(iii). In this ground of appeal, the applicant alleges that he was not provided with adequate notice of both the interim intervention order on 2 May 2024 and the hearing of the application for a final intervention order on 4 July 2024. As Justice B Doyle held in Commissioner of Police v Knight; Commissioner of Police v Metters:[65]In a legal context, service generally refers to the act of delivering a document to a party or individual who is required to receive it, with the purpose of ensuring that they are informed about the document or the legal proceeding to which it relates. There are, however, different kinds of service, and the context in which the obligation to serve the document arises may dictate the form of service that is required.[65] [2025] SASC 72, [12] (‘Knight & Metters’). In some legal contexts personal service is required, and legislation may dictate that personal service is required. For example, an interim intervention order issued by a police officer, only comes into force against a defendant when ‘served on the defendant personally.’[66] Generally, personal service is required of initiating documents, however this may be modified by legislation. As Justice B Doyle held in Knight & Metters:[67]The service of documents in the course of proceedings is not necessary for jurisdictional purposes. The purpose is essentially to ensure procedural fairness, but with a recognition that the parties to a proceeding have some responsibility for monitoring communications during the course of the proceeding. Having regard to considerations of cost and practicality, service will usually be satisfactorily effected by taking steps which are apt to result in the document coming to the attention of the intended recipient or their legal representative, or at least will result in the document coming to their attention if they are reasonably diligent in monitoring the means by which the other parties might be expected to communicate with them. Of course, courts generally have powers to avoid practical unfairness and prejudice if a party, although taken to have been served with a document, has not in fact received it or had a sufficient opportunity to consider their position.(citation omitted)[66] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18(4).[67] [2025] SASC 72, 3-4 [16]. The principles governing the issuing of an intervention order are set out in s 10 of the Act. Section 10(2) of the Act sets out matters that must be taken into account.