AB (a pseudonym) v YZ (a pseudonym) - [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 1975 (Cth); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(2), s 16, s 18(4), s 20(3), s 21, s 21(1), s 21(1)(a), s 21(8), s 21(8a), s 21(8a)(b), s 23, s 23(2), s 26(7a)(b); Judiciary Act 1903 (Cth) s 78B; Magistrates Court Act 1991 (SA) s 40(2); Uniform Civil Rules 2020 (SA) r 213.1; Uniform Special Statutory Rules (SA) r 3.1, referred to.
Commissioner of Police v Knight; Commissioner of Police v Metters [2025] SASC 72; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; Teague v SL [2021] SASC 114, discussed.
A v I [2022] SASC 22; ACCC v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 ; Atkins v Protected Person [2022] SASC 31; BC v MC [2024] SASC 81; Hopper v Egg and Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665; Collins v State of South Australia and Parole Board of South Australia Australia [2000] SASC 62 ; Cook v Galloway [2015] SASC 36; Daniels v Deputy Commissioner of Taxation [2007] SASC 431; Finlayson; ex parte Finlayson (1997) 72 ALJR 73; Glennan v Commissioner of Taxation (2003) 198 ALR 250; Green v Jones [1979] 2 NSWLR 812; Groom v Police (No 3) (2013) 231 A Crim R 1; ID v Police [2022] SASC 89; Jackamarra v Krakouer (1998) 195 CLR 516; Kioa v West (1985) 159 CLR 550; Marley-Duncan v Police [2015] SASC 146; Narain v Parnell (1986) 9 FCR 479; Sharin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; Van Reesema v Police [2009] SASC 8; White v Police [2018] SASC 124, considered.

AB (A PSEUDONYM) v YZ (A PSEUDONYM)
[2025] SASC 126
Introduction

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].
At the hearing on 21 March 2024, before Magistrate Schulz, the police prosecutor instructed the Magistrate that he was seeking instructions to withdraw the aggravated assault charge and the police interim intervention order.[12] On 18 April 2024, bail was removed with police consent.[13]
Interim Intervention Order
[12] AAB (n 3) 92 (‘Affidavit of [AB]’, Submission in MCCRM-24-001796, 11 April 2024).
[13] FDN13 (n 4) 10 [43]-[44].
On 29 April 2024, the respondent filed an originating application and supporting affidavit for a private intervention order in the Magistrates Court.[14]
[14] RAB (n 3) 5-8 (‘Originating Application – Intervention Order’, Submission in MCCRM-24-015235, 29 April 2024) and (‘Affidavit of [YZ]’, 28 April 2024): RAB at 9-39, Affidavit of Protected Person (n 5).
On 2 May 2024, there was a hearing before Magistrate Schulz. The aggravated assault charge and the police interim intervention order were withdrawn.[15]
[15] FDN13 (n 4) 10 [46].
That same day, a private interim intervention order hearing was held before Magistrate Schulz.[16] The respondent was represented in those proceedings and gave oral evidence in person in support of that application.[17] Magistrate Schulz held that she was satisfied on the information contained in the respondent’s affidavit and her oral evidence, that there were grounds for the making of an interim intervention order against the applicant.[18] The learned Magistrate provided written reasons outlining the basis upon which the private interim intervention order was made.[19]
[16] RAB (n 3) 45-47 (Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 2 May 2024) (‘May 2024 Order’).)
[17] RAB (n 3) 66 (Magistrates Court of South Australia, Magistrate Schulz, 2 May 2024) (‘Reasons of Magistrate Schulz’).
[18] May 2024 Order (n 16); RAB (n 3) 48 (Intervention Order and Summons (interim) of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 2 May 2024).): RAB at 63 (Notice of Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 2 May 2024).)
[19] Reasons of Magistrate Schulz (n 17).
On 9 May 2024, the matter was next before Magistrate Schultz. The respondent was represented by a legal practitioner, Ms Guerin. The applicant did not attend. Magistrate Schultz adjourned the hearing in order for a fresh summons to be issued and required personal service on the applicant.[20]
Correspondence with Registry
[20] RAB (n 3) 68 (Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 14 May 2024).): RAB at 86 (Notice of Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 14 May 2024).)
The documents before this Court indicate that the applicant had emailed the Magistrates Court Registry on 8 May 2024 and on 16 May 2024 inquiring as to whether there was “any current proceedings on foot against me”.[21]
[21] RAB (n 3) 139.
An email was sent from the Single Registry Operations Manager to the applicant on 16 May 2024 which notified the applicant that the only current matter was next listed before the Mount Barker Magistrates Court on 23 May 2024 at 10.00 am.[22]
Service of Interim Intervention Order
[22] Ibid.
On 23 May 2024, the matter was next before Magistrate Grant. The respondent was represented by Ms Guerin, in person, and the applicant did not attend. The court record of that occasion provides:[23]
Mr [AB] has contacted the Registry, indicated he will not be in attendance today and knows nothing about the matter.
The applicant may seek an application for substituted service on next occasion.
Adjourned for personal service.
[23] RAB (n 3) 89, 90 (Order of Magistrate Grant (Magistrates Court of South Australia, MCCRM-24-015235, 23 May 2024).)
On 27 June 2024, the matter was next heard before Magistrate Schultz. The respondent was represented by Ms Guerin. The applicant did not attend. On this occasion, Magistrate Schulz ordered and remarked as follows:[24]
Police have not been able to locate the [applicant] to serve the interim intervention order originally made on 2 May 2024. The [applicant] emailed the Court on 16 May 2024 from … [the applicants email address]. Leave to Ms Guerin to appear via phone or AVL on the next occasion.
[24] RAB (n 3) 110, 111 (Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 27 June 2024) (’27 June 2024 Order’).
On 27 June 2024, Magistrate Schultz also ordered that:[25]
Pursuant to s 21(8a)(b) of the Intervention Orders (Prevention of Abuse) Act 2009, the court authorises service of the interim intervention order on the [applicant] by email sent to [applicant’s email address].
The interim intervention order will be regarded as having been served when the sender’s email service records the email as having been sent, provided that the sender’s or [applicant’s] email service does not notify the sender that the email was not delivered or the recipient may not be responding to email.
[25] Ibid.
After the hearing on 27 June 2024, Ms Guerin emailed the applicant on the above email address enclosing a letter, the respondent’s originating application, supporting affidavit and the interim intervention order. By that correspondence, Ms Guerin specifically identified to the applicant that if he did not attend on the next occasion her client would be seeking that final orders be made in his absence. The letter specified that the matter was next listed before the Mount Barker Magistrates Court on 4 July 2024 at 10.00 am. The date and time of the hearing were set out in bold font. No undelivered notice was received, nor did any return email specify that the recipient may not be responding to emails.[26]
[26] RAB (n 3) 112 (Shannon Kate Guerin, ‘Affidavit of Proof of Service’, Submission in MCCRM-24-015235, 4 July 2024, 117).
The applicant accepted as an agreed fact on the appeal that on 27 June 2024 he received notice of the proceedings, being the email and attachments sent to him on that day.[27]
Final Intervention Order
[27] Transcript of Proceedings (Supreme Court of South Australia, SCCRM-25-001318, Gray J, 12 May 2025) 4.14-17 (‘T’).
On 4 July 2024, the matter was next before Magistrate Schulz. The respondent was represented by Ms Guerin via AVL. The applicant did not attend. At the request of Ms Guerin, the matter was held until 2.15 pm so that Ms Guerin could upload an affidavit of proof of service. The matter was recalled at 2.15 pm. The learned Magistrate provided reasons for her decision.[28] The Record of Outcome records the following comments and orders:[29]
[28] RAB (n 3) 121 (‘Remarks of Magistrate Schulz’, Magistrates Court of South Australia, 2 May 2024) (‘Remarks of Magistrate Schulz’).
[29] RAB (n 3) 118 (Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 4 July 2024)).
On request of Ms Guerin matter held until 2.15pm for affidavit of proof of service to be uploaded to the file.
Matter recalled at 2.15pm. NAD proved.
On the basis of the affidavit of proof of service, FDN 23, the court is satisfied the respondent has been served with the Interim Intervention Order.
The respondent has not appeared this date either when matter first called at 10.26am and when called again at 2.15pm and the court has not received any communication from the respondent about appearing this date by any other means other than in person.
Therefore respondent is deemed served.
It is ordered that the interim Intervention Order be confirmed as a final order.
Court Order
1. Pursuant to s 26(7a)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 the Court authorises service of the final Intervention Order on the respondent by email sent by the applicant’s solicitor to [email address].
2. The final Intervention Order will be regarded as having been served when the sender’s email service records the email as having been sent, provided that the sender’s or respondent’s email services does not notify the sender that the email was not delivered or the recipient may not be responding to emails.
3. The applicant’s solicitor is to file an affidavit of service within seven days of serving the final order on the respondent by email.
The record of outcome of 4 July 2024 also records that a number of documents (being FDN14 to FDN22) had been uploaded to the court file.[30] The learned Magistrate provided reasons for the making of the final intervention order which indicated that her Honour was satisfied that the applicant had been served with the application and had failed to appear.[31]
[30] The Magistrate ordered that those documents be removed from the court file on the basis that the documents were vexatious and an abuse of process, and that it was in the interests of justice that they be removed. No party adduced any evidence on this appeal concerning those documents, and the removed documents were not before this Court: at RAB (n 3) 118.
[31] Remarks of Magistrate Schulz (n 28).
On 9 July 2024, Ms Guerin sent an email to the applicant with a letter enclosing the final intervention orders made by Magistrate Schultz. Ms Guerin filed in the Magistrates Court an affidavit of proof of service on 9 July 2024.[32]
[32] RAB (n 3) 123 (Shannon Kate Guerin, ‘Affidavit of Proof of Service’, Submission in MCCRM-24-015235, 9 July 2024).
On 9 July 2024, the solicitor for the respondent again served the applicant via email with a copy of the final intervention order and related documents. On 21 October 2024, the applicant filed an interlocutory application and supporting affidavit to vary or revoke the final intervention order.[33] On 14 November 2024, the revocation application was called on before Magistrate Schulz. Both the respondent and the applicant were represented by solicitors on this occasion and the applicant withdrew his application for revocation. Magistrate Schulz ordered that the final intervention order continue on the same terms.[34]
[33] RAB (n 3) 131 (‘Interlocutory Application to Vary or Revoke Order – Intervention Order’, Submission in MCCRM-24-015235, 21 October 2024): RAB at 134 (‘Affidavit of [AB]’, Submission in MCCRM-24-015235, 18 October 2024, 135).
[34] RAB (n 3) 137 (Order of Magistrate Schulz (Magistrates Court of South Australia, MCCRM-24-015235, 14 November 2024).).
The appeal
The grounds of appeal are detailed, and there have been three separate grounds of appeal filed during the course of these appeal proceedings.[35] Whilst many of the grounds overlap, the issues raised by the applicant,[36] and joined between the parties, may be summarised as concerning the following matters:
·Alleged lack of notice.[37]
·Alleged procedural unfairness.[38]
·Alleged judicial error in issuing orders,[39] including alleged corrupt conduct.[40]
·Jurisdictional objections.[41]
[35] ‘FDN2 Appeal Grounds’, Submission in SCCRM-25-001318, 10 January 2025 (‘FDN2’); ‘FDN 12 Amended Appeal Grounds – Revision 1’, Submission in SCCRM-25-001318, 17 March 2025 (‘FDN12’); FDN32 (n 2).
[36] T (n 27) 17.
[37] FDN32 (n 2), (a)(i)-(iii).
[38] Ibid (a)(ii)-(iii), (a)(iv)(1)-(2), (vi)-(vii), (xi), (b).
[39] Ibid (a)(v), (a)(vi)(1)-(2), (b).
[40] Ibid (a)(v)-(viii).
[41] Ibid (b); ‘FDN20 Notice of a Constitutional Matter’, Submission in SCCRM-25-001318, 8 April 2025,1 [2] (‘FDN20’).

The applicant filed four sets of written submissions and made oral submissions.[42]
[42] FDN13 (n 4); ‘FDN16 Reply to Response – Part of Submissions of Appellant’, Submission in SCCRM 25-001318, 8 April 2025 (‘FDN16’); ‘FDN21 Written Submissions of Appellant’, Submission in SCCRM-25-001318, 8 April 2025 (‘FDN21’); ‘FDN33 Reply Written Submissions of Appellant’, Submission in SCCRM-25-001318, 22 April 2025 (‘FDN33’); ‘FDN42 Written Submissions of Appellant’, Submission in SCCRM-25-001318, 12 May 2025 (‘FDN42’); T (n 27) 17: see also ‘FDN26 Affidavit of [AB]’, Submission in SCCRM-25-001318, 15 April 2025 (‘FDN26’).
The respondent filed three written submissions and also made oral submissions.[43]
[43] ‘FDN10 Written Submissions of Respondent’, Submission in SCCRM-25-001318, 19 March 2025 (‘FDN10’); FDN24 (n 4); ‘FDN35 Written Submissions of Respondent’, Submission in SCCRM-25-001318, 19 March 2025 (‘FDN35’); T (n 27); Transcript of Proceedings (Supreme Court of South Australia, SCCRM-25-001318, Gray J, 23 April 2025) (‘T2’); Transcript of Proceedings (Supreme Court of South Australia, SCCRM-25-001318, Gray J, 24 March 2025) (‘T3’).
The matter came on before the Court on three occasions. Submissions were received at the first hearing on 24 March 2025, and the matter was adjourned to enable the s 78B Notices to be served,[44] to enable the applicant to obtain legal advice, and to afford the parties the opportunity to file any further affidavit evidence or written submissions. The matter was then adjourned again on 23 April 2025 to afford the applicant an opportunity to obtain legal advice, to file any further affidavit material or identify any further relevant evidentiary matters, and to bring any further interlocutory applications. Final submissions were then received on 12 May 2025, and the interlocutory applications were addressed.[45]
[44] Judiciary Act 1903 (Cth) s 78B, hereafter referred to as a ‘s 78B Notice’: see also FDN26 (n 42).
[45] Order of Gray J in SCCRM-25-001318 (Supreme Court of South Australia, 12 May 2025); T (n 27) 2-10, 26.
I have had regard to all of the evidence received on this appeal,[46] and to the written and oral submissions of the parties. I propose to address in these reasons the submissions raised by reference to the four issues joined between the parties which I have summarised above.[47] Before doing so I will consider the statutory basis of the appeal, the question of leave to appeal and the need for an extension of time, noting that it is convenient to return to these issues having addressed the issues joined between the parties and the merits of the appeal.
[46] In this matter, an exhibit list was prepared due to the volume of material received on appeal. I have listened to the recordings of the Magistrates Court proceedings which were received on this appeal. In particular, I have considered audio Exhibits DFA34, DFA56 and DFA57, received as Exhibits A2-A5 respectively, and indexed in ‘FDN23 Affidavit of [AB]’, Submission in SCCRM-25-001318, 8 April 2025 (‘FDN23’).
[47] These matters were accepted by the applicant as being the four essential aspects of the appeal: T (n 27) 25.9-10.
Statutory basis of the appeal and leave to appeal
The appeal is brought pursuant to s 40(2) of the Magistrates Court Act 1991 (SA) and r 213.1 of the Uniform Civil Rules 2020 (SA).[48] This appeal is sought to be brought from both an interim intervention order and a final intervention order. I have considered the grounds advanced concerning both the interim intervention order and the final intervention order. Once the interim intervention order is confirmed as it was in this case, only the final intervention order is extant.[49]
[48] Since 29 August 2022, the Intervention Orders (Prevention of Abuse) Act 2009 (SA) came to be governed by Part 6 of the Uniform Special Statutory Rules 2022 (SA). This means, according to those rules, the Uniform Civil Rules 2020 (SA) apply: See r 3.1 of the Uniform Special Statutory Rules 2022 (SA); BC v MC [2024] SASC 81 [4] (McDonald J).
[49] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23.
In respect of the confirmation of the intervention order made pursuant to s 21(1)(a), the question of whether or not this is a final or interlocutory decision is finely balanced. There are a number of authorities which accept that an order confirming an intervention order is an order that is interlocutory in nature.[50] A contra view is expressed in the decision of Kourakis CJ in Teague.[51] The Chief Justice held:[52]
… Final Intervention Orders are not interlocutory orders. They conclusively determine whether or not the circumstances existing at the particular time when the application is determined warrant the making of the protective order. Findings of fact as to the incidents on which the application is made bind the applicant and the respondent by way of issue estoppel in any future applications for an Intervention Order or variation of one, and in any other collateral proceeding.
[50] See Groom v Police (No 3) (2013) 231 A Crim R 1 (Sulan J) (‘Groom’); Thakur v Police (2016) 125 SASR 180, 186 [26] (Stanley J) (‘Thakur’); ID v Police [2022] SASC 89, [30]-[32] (McDonald J) (‘ID v Police’).
[51] [2021] SASC 114 (‘Teague’).
[52] Ibid 2 [8].
The Chief Justice went on to note that on an application to revoke an order made pursuant to s 23 of the Act, it is not open to the defendant to relitigate the findings on which the final order was founded or to prosecute again incidents which were not found proved at the confirmation hearing.[53]
[53] Ibid.
The distinction between final and interlocutory orders and the implication of the specific nature of confirmations of intervention orders was addressed by Stanley J in the decision of Thakur.[54]Justice Stanley held:[55]
… While the order is interlocutory in nature, it has the appearance and the practical effect of a final order, but because it is capable of being varied or revoked, it is not. Nonetheless, in my view, for the purposes of determining whether it is in the interests of justice to have an appeal from such an order determined, the application for permission is not to be decided by the same considerations identified by Bleby J in van Reesema's case. For the purpose of finding the existence of “special reasons” to grant permission, I consider that an arguable case by itself will generally be sufficient. If not, a defendant in many cases effectively will be deprived of a right of appeal. In these circumstances I consider that basic fairness requires that in order to find the existence of “special reasons” no more than an arguable case on appeal is necessary.
[54] Thakur (n 50).
[55] Ibid 186 [26], citing Van Reesema v Police [2009] SASC 8, [23] (Bleby J).
There is, as McDonald J recognised in ID v Police,[56] considerable force in the view expressed by the Chief Justice in Teague.[57] There are also a significant number of decisions of a single judge supporting the conclusion that a Magistrate’s confirmation of an intervention order is an interlocutory order.[58]
[56] ID v Police (n 50), [31].
[57] Teague (n 51).
[58] ID v Police (n 50), [32]; White v Police [2018] SASC 124, [21] (Nicholson J); Groom (n 50), [29]-[33] (Sulan J); Cook v Galloway [2015] SASC 36, [29] (Nicholson J); Marley-Duncan v Police [2015] SASC 146, [26] (Stanley J); Thakur (n 50), [3]; Sharin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126, [40] (Parker J); A v I [2022] SASC 22, [34]-[35] (Stein J) (in respect of a decision to dismiss an interim order); Atkins v Protected Person [2022] SASC 31, [23] (McDonald J).
For the reasons given below, having considered the substantive merits of the grounds of appeal, I would dismiss all grounds of this appeal. It follows that the outcome of this appeal does not depend on the question of whether or not permission is granted. In these circumstances it is not necessary that I express a concluded view on the question of the interlocutory or final nature of interim intervention orders.
Application for an extension of time
The granting of an extension of time within which to appeal is an evaluative exercise. There are four matters which the Court in the exercise of its discretion must consider. These are the length of the delay, the reasons for the delay, whether there is an arguable case on appeal and the degree of prejudice to the respondent.[59]
[59] Jackamarra v Krakouer 195 CLR 516, 519-20 [4]; Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62, [3]; Thakur (n 50), [28].
In this matter the length of the delay is extensive. The applicant has provided a very brief affidavit in respect of the reasons for the delay. The applicant refers to several compounding factors including a solicitor who said he would file the appeal.[60] The applicant also claims that he was not provided with adequate notice as to the date and time of the hearing of the decisions appealed against, but his position on this issue has varied.[61] As noted above, the applicant accepted as an agreed fact that he received notice on 27 June 2024 and that the confirmation hearing would occur on 4 July 2024. The applicant says he was not present when the Magistrates Court matter was heard and determined, and that he has been denied access by the Magistrate Court registry to documents held on the Magistrates Court file. The claim concerning being denied access to documents is not supported by any evidence which details the chronology of such requests, including material making reference to whether or not any requests for documents were made at a time when the applicant was legally represented.[62]
[60] ‘FDN3 Affidavit of [AB]’, Submission in SCCRM-25-001318, 31 December 2024 (‘FDN3’).
[61] Exhibit A6, ‘FDN 38 Affidavit of [AB]’, Submission in SCCRM-25-001318, 29 April 2025, [2]-[7]. Cf T (n 27) 4.11-17.
[62] On 17 March 2025, orders were made by this Court granting the appellant access to documents filed on MCCRM-24-015235.
The respondent indicates that there is prejudice in respect of any grant of an extension of time on the basis that the respondent suffers from post-traumatic stress disorder and the appellate court proceedings are exacerbating those symptoms and retraumatising the respondent.[63]
[63] ‘FDN 25 Affidavit of Julienne Vargas’, Submission in SCCRM-25-001318, 14 April 2025, [3]-[8] (‘FDN25’); ‘FDN27 Affidavit of Julienne Vargas’, Submission in SCCRM-25-001318, 16 April 2025 (‘FDN27’).
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 time
Consideration in respect of grounds of appeal
Alleged 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.
Other than asserting in his affidavit of 31 December 2024 that he was not provided with adequate notice as to the date and times of both hearings, significant affidavit evidence in support of that submission has not been advanced by the applicant, although the applicant was afforded the opportunity to provide further evidence.[68] The applicant ultimately accepted as an agreed fact on the appeal that he received notice of the proceedings on 27 June 2024, being the email and attachments.[69] That agreed fact is contrary to the position earlier advanced by the appellant in his written submissions.[70] That is, it was ultimately accepted on the appeal that notice was received by the applicant of the interim intervention order prior to the confirmation hearing on 4 July 2024, and the applicant was advised that the confirmation hearing would occur on 4 July 2024.
[68] FDN3 (n 60), [3].
[69] T (n 27) 4; ‘Affidavit of [AB]’, Submission in SCCRM-25-001318, 28 April 2025 (‘FDN38’).
[70] See further: T (n 27) 4; FDN13 (n 4), [77], FDN33 (n 42), [4]; FDN42 (n 42), [4].
The respondent also submits that the applicant was aware of the proceeding and refers to the applicant’s correspondence and communication with the Court.[71]
[71] FDN10 (n 43), [26].
In respect of the interim intervention order, s 21(1) of the Act contemplates that the court must hold a preliminary hearing as soon as practicable and without summonsing the defendant to appear.
In respect of the complaint that the learned Magistrate should not have proceeded with the hearing of the application for an interim intervention order on 2 May 2024 prior to the applicant being given notice of the hearing, I reject the applicant’s submission to the effect that actual notice of the application for the interim intervention order proceeding was required. The Act specifically contemplates that a private interim intervention order may be made ex parte.[72]
[72] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(1).
Pursuant to s 21(8) of the Act, an interim intervention order issued by the Court comes into force against the defendant when served on the defendant in accordance with the section.
Subsections 21(8) and (8a) of the Act provide as follows:
(8) An interim intervention order issued by the Court comes into force against the defendant when served on the defendant in accordance with this section.
(8a) For the purposes of subsection (8), an interim intervention order is served on the defendant if—
(a)     the order is served on the defendant personally; or
(b)     the order is served on the defendant in some other manner authorised by the Court; or
(c)     the defendant is present in the Court when the order is made.
The respondent asserts that the applicant was, on 27 June 2024, served with the interim orders, affidavit and notice of hearing of the final intervention order confirmation hearing by email in accordance with s 21(8a)(b) of the Act. That is, the respondent asserts that the applicant was served by email being a manner authorised by the Court.[73]
[73] 27 June 2024 Order (n 24); RAB (n 3) 112-117; FDN38 (n 69).
The applicant ultimately, on appeal, accepted that he received on 27 June 2024 notice of the interim intervention order and notice of the hearing of the final intervention order confirmation hearing.[74] In the circumstances, I reject the submission advanced by the applicant that he was not given notice of the proceedings. I find that the applicant was properly served with the interim intervention order in accordance with the statutory requirements,[75] and that he had actual notice of the proceedings and was given notice prior to the confirmation hearing of that hearing.[76]
[74] T (n 27) 2-3.
[75] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(8)-(8a), (8a)(b).
[76] T (n 27) 4.
I dismiss the grounds of appeal which allege that there was a failure to give notice as required by the Act.[77]
Alleged procedural unfairness[78]
[77] FDN32 (n 2).
[78] FDN32 (n 2) (a)(ii)-(iii), (a)(iv)(1)-(2), (vi)-(vii), (xi), (b).
These grounds make complaint that the learned Magistrate failed to make proper arrangements to hear and determine the application in the applicant’s presence and failed to follow proper practice and procedure, denying the applicant procedural fairness.
The particulars of this ground appear to be set out in the written submissions of the applicant which refers to the failure of the learned Magistrate to have regard to any relevant proceedings pursuant to the provisions of the Family Law Act 1975 (Cth) (‘Family Law Act’).[79]
[79] AAB (n 3) 9 [33].
The complaint of the failure to follow the correct procedure appears to relate to the failure of the applicant to inform the Magistrates Court of the existence of proceedings in the Family Court. Section 20(3) of the Act provides:
The applicant must inform the Court of any relevant Family Law Act order, State child protection order or agreement or order for the division of property under the Family Law Act1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, any pending application for such an order, and any other legal proceedings between a person proposed to be protected by the order and the defendant, of which the applicant is aware (but an intervention order is not invalid merely because the applicant fails to so inform the Court).
It is not disputed by the respondent that, at the time that the application for the interim intervention order was considered by the learned Magistrate on 2 May 2025, Family Court proceedings had been instituted.[80] The respondent submitted that in the circumstances of this case no denial of procedural fairness was occasioned by the failure to inform the Magistrates Court of the Family Court proceedings, as nothing would have turned upon whether the respondent advised the court of the pending Family Court proceedings.
[80] T3 (n 43) 30.
Section 20(3) of the Act provides that the interim order is not invalid merely because the applicant fails to inform the Court of the matters set out in s 20(3). The respondent asserted that nothing turned on whether the respondent advised the court of any pending Family Court matters. I find that the applicant did not adduce any cogent evidence of the impact of the existence of the Family Court proceedings.[81] In these circumstances, it is difficult to ascertain as a practical matter how there was a denial of procedural fairness.
[81] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 20(3).

In my view, the effect of the statutory language in s 20(3) does not preclude there being circumstances in which the failure of an applicant for an intervention order to inform the court of the existence of Family Court proceedings may result in a denial of procedural fairness.[82] There may be circumstances where the failure to inform the court of the Family Court proceedings results in manifest prejudice to the person against whom the intervention order is sought. However, the effect of the statutory language in s 20(3), in my view, is that the mere failure to inform the court of the existence of the Family Court proceedings will not necessarily invalidate an interim intervention order.
[82] To the extent that the respondent suggested that the failure to inform the court of Family Court proceedings could never result in procedural unfairness because of the statutory language, I would reject that contention: see T3 (n 43) 30-31; FDN 24 (n 4), [17]-[20].
I find that, although there was an obligation upon the applicant for the intervention order to inform the Magistrates Court of the existence of the Family Court proceedings, the failure to do so in this case did not occasion any relevant prejudice to the applicant. Procedural fairness is a practical construct. As Chief Justice Gleeson held in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam:[83]
…Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[83] (2003) 214 CLR 1, 13-14 [37].
There is a common law duty to act fairly, in terms of according to procedural fairness. The critical question in this case is not whether the principles of natural justice applied, in my view they do, the important question is, what does the duty to act fairly require in the circumstances of this particular case.[84]
[84] Kioa v West (1985) 159 CLR 550.
In this case, the evidence indicates that the learned Magistrate complied with the relevant statutory requirements. There was no statutory requirement to provide notice of the application for the interim intervention order to the applicant. The application for an interim intervention order made by the respondent may be heard ex parte.[85] The Magistrate properly received submissions from the respondent’s counsel and evidence from the respondent.[86] The applicant was given notice of the interim intervention order prior to the final intervention order being made and notice of the confirmation hearing in accordance with the requirements of the Act.[87] Further, it was ultimately accepted by the applicant on appeal that he had actual notice of those matters prior to the confirmation hearing.[88] The Magistrate was entitled to make the final intervention order in the applicant’s absence.[89]
[85] Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 20(1), 21(1).
[86] See ss 20(1), 21 of the Act.
[87] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21(8a).
[88] T (n 27) 4.
[89] Section 23(2) of the Act provides: ‘An interim intervention order issued against a defendant may be confirmed as a final intervention order, or a final intervention order may be issued in substitution for an interim intervention order issued against a defendant, in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order or by conditions of bail’.
The respondent, who was legally represented, failed to inform the Magistrates Court of the existence of the Family Court proceedings. Whilst this is less than ideal, particularly having regard to the ex parte nature of the hearing, this failure has not been shown by the applicant to have occasioned any relevant practical injustice.
I would dismiss these grounds of appeal.
Alleged judicial error in issuing orders and alleged corrupt conduct[90]
[90] FDN32 (n 2) (a)(v)-(viii), (b).
This ground repeats the earlier complaints made concerning the Magistrate’s confirmation of the private interim intervention order in the applicant’s absence. In relation to this aspect it is sufficient to refer to the reasons for dismissing the grounds referred to earlier which make the same complaint.
However, there is a second aspect to the above grounds raised by the applicant.[91] The applicant asserts that the learned Magistrate should have made reference or enquiry as to the withdrawal of an earlier police interim intervention order which had been withdrawn by police on 2 May 2024. The applicant asserts that he was denied procedural fairness as the learned Magistrate did not consider, on the private intervention order application, the documents that had been filed by the applicant in the police intervention order proceedings. The application for an intervention order brought by police did not proceed to the hearing of an application for a final intervention order as the matter was withdrawn by police.
[91] FDN32 (n 2), (a)(vii)-(a)(viii), (b).
There is no requirement as a matter of procedural fairness for the learned Magistrate on the hearing of the private intervention order to have regard to the documents filed by the applicant in the police intervention order proceedings. The application for a private intervention order was filed on 29 April 2024. Prior to the private intervention order application being considered on 2 May 2024, the police interim intervention order had been withdrawn.[92] Further, prior to the confirmation of the private intervention order, the applicant had notice of that hearing and could have put before the court on the private intervention order hearing affidavit material to a similar effect to that filed by the applicant on the police intervention order application.[93] Whilst given the ex parte nature of the proceedings it would have been ideal for the respondent to have drawn all potentially relevant matters, which may have been relied upon by the applicant on an inter partes hearing, to the attention of the Magistrates Court, I find that the applicant has not identified any practical injustice arising from this.
[92] AAB (n 3) 21, 23.
[93] RAB (n 3) 139; T3 (n 43) 34-36.
The applicant further asserts that the learned Magistrate, by proceeding to hear the private application for an intervention order, was “corrupt” because the Magistrate had previously considered an application for an interim intervention order brought by SA Police. There was no evidence placed before this Court on the appeal to substantiate why the Magistrate was “corrupt”. The assertion appears to be one which is made by inference from the fact that the applicant had filed responding documents in respect of the police application for an intervention order and, as such, the Magistrate should have taken these matters into account on the ex parte hearing for a private interim intervention order. There is no statutory requirement for the learned Magistrate to have proceeded in that way, nor has the applicant established that principles of procedural fairness would require the learned Magistrate to have proceeded in that way.
The applicant has not demonstrated any practical unfairness occasioned by the manner in which the learned Magistrate proceeded. I find that the allegation advanced by the applicant does not, in any cogent way, show corruption. The allegations that the applicant seeks to advance amount to no more than suspicions which the applicant seeks to bolster by drawing inferences that lack any cogent evidentiary foundation.
In summary, the alleged unfairness that the applicant asserts is that the learned Magistrate in making the interim intervention order failed to have regard to the affidavit that the applicant had filed in the previous proceedings for an intervention order brought by SA Police. For the reasons given, I am unable to ascertain any procedural unfairness in this approach on the evidence before this Court. There is no evidence put forward before this Court which would substantiate the allegation of “corruption”.
The applicant also alleges corruption on the ground that the learned Magistrate’s failed to apply relevant case law and that there is an ‘unhealthy and irresponsible’ connection with the Court registry.[94] Whilst I have had regard to the submissions of the applicant in relation to these grounds and considered the evidence before this Court on appeal, these matters are not matters in relation to which, in my view, any cogent evidence was produced. The grounds of appeal concerning alleged judicial error in issuing the orders and alleged corrupt conduct are without merit. I would dismiss these grounds.
Lack of jurisdiction[95]
[94] FDN32 (n 2), (viii).
[95] FDN32 (n 2) (b); FDN20 (n 41).
The applicant in the written submissions also makes a complaint that the provisions of the Act concern matters with respect to marriage which are excluded from state jurisdiction by way of Commonwealth legislation, in that all matters of matrimonial affairs are covered by s 51(xxii) of the Australian Constitution and the Family Law Act. The applicant claims that the Australian Constitution and the Family Law Act clearly places the entire matter before a court having federal jurisdiction. On this basis the applicant contends that, at no time did SA Police or any state court of record, namely the Magistrates Court of South Australia, have any jurisdiction to deal with the matters which came before the Court the subject of appeal.[96]
Determination of the constitutional issues said to arise
[96] FDN13 (n 4) 21 [100]-[101].
When this matter first came before the Court on 24 March 2025, the matter was adjourned to enable the applicant to articulate his jurisdictional objection and to file and serve section notices pursuant to s 78B of the Judiciary Act. I note that in requiring s 78B Notices to be issued, it is not sufficient that a party raising a constitutional issue has a genuine and bona fide belief that a constitutional question is raised. It is necessary that the party raising the constitutional issue establishes to the satisfaction of the Court that the matter said to arise does arise under the Australian Constitution.[97] In this regard, reference may be had to the language of s 40 which refers to really and substantially arising under the Constitution.[98] That said, the strength or weakness of the proposition advanced by the party may not be critical.[99]
[97] Finlayson; ex parte Finlayson (1997) 72 ALJR 73 (‘Finlayson’); ACCC v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; Narain v Parnell (1986) 9 FCR 479, 486-489 (Burchett J).
[98] ACCC v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292, 297 (French J); Daniels v Deputy Commissioner of Taxation [2007] SASC 431.
[99] Finlayson (n 96) 74 (Toohey J). This view was endorsed by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation (2003) 198 ALR 250, [14]; Green v Jones [1979] 2 NSWLR 812, 818 [A] (Hunt J). Cf Hopper v Egg & Egg Pulp Marketing Board (Vic) (1939) 61 CLR 665.
Given that Mr AB was self-represented the matter was adjourned to enable Mr AB to consider the constitutional issue he sought to raise and if appropriate to issue s 78B Notices. The Court was subsequently informed that those notices had been issued, but that no Attorney-General had responded seeking to intervene in the proceedings.[100]
[100] ‘FDN28 Affidavit of [AB] of Proof of Service’, Submission in SCCRM-25-001318, 17 April 2025 (‘FDN28’).
The manner in which the constitutional issue was ultimately articulated by the applicant asserts that the only courts to have jurisdiction in respect of intervention orders are courts with exclusive federal jurisdiction.[101] It is further said that it is the exclusive jurisdiction of the Federal Courts pursuant to s 51(xxii) of the Australian Constitution to bring any chose in action in relation to divorce or matrimonial causes.[102]
[101] FDN20 (n 41) 1 [2].
[102] Ibid.
It is not clear that the applicant has, by the s 78B Notice issued, identified a constitutional issue really and substantially arising under the Australian Constitution. The applicant appears to contend that the Magistrate Court lacked jurisdiction to make orders in this case pursuant to the the Act, because s 51(xxii) of the Australian Constitution confers power on the Commonwealth Parliament to make laws with respect of divorce and matrimonial causes.
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.