Atkins v Cauchi; Atkins v Pilgrim - [2019] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ATKINS v CAUCHI; ATKINS v PILGRIM
[2019] SASC 184
Judgment of The Honourable Auxiliary Justice Bochner
1 November 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal from a Magistrate's decision not to grant intervention orders.
Held: appeals dismissed.
Intervention Orders (Prevention of Abuse) Act 2009 (SA), referred to.
Atkins v Hughes & Anor [2019] SASCFC 49; Police v Kriticos [2016] SASC 28; Rana v Gregurev [2015] SASC 37; Cook v Galloway [2015] SASC 36; Police v Giles [2013] SASC 11, considered.

ATKINS v CAUCHI; ATKINS v PILGRIM
[2019] SASC 184
Magistrates Appeal: Criminal
Introduction

This is an appeal from a Magistrate’s dismissal of two applications for intervention orders.
Background
On 10 October 2017, Mr Atkins and his wife entered a residential tenancy agreement with Brett Hughes and Trudi-Anne Hughes, through the agency of Ray White Adelaide Group (Ray White). The respondents, Ms Cauchi and Ms Pilgrim, were employees of Ray White at that time, and were involved with Mr Atkins in the inspection of the property in question, and his application to lease it from the owners.
On 10 November 2017, shortly after moving into the property, Mr Atkins wrote to Ray White, with a list of complaints about the condition of the property. I understand that, over the next few months, either Ms Cauchi or Ms Pilgrim sought to rectify the problems identified by Mr Atkins. As the problems were not dealt with to the satisfaction of Mr Atkins, he issued a claim in the South Australian Civil and Administrative Tribunal (SACAT) on 24 January 2018. Ultimately, the residential tenancy agreement was terminated by agreement on 13 August 2018. At the time of the hearing before me, the litigation in SACAT was not yet resolved.
On 24 June 2019, Mr Atkins filed two separate applications pursuant to s 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”), seeking intervention orders against each of the respondents. Mr Atkins claimed that it was reasonable to suspect that Ms Cauchi and Ms Pilgrim would commit an act of abuse by:
·Causing emotional or psychological harm; and
·Deformation (sic) to course (sic) others to intimidate.
He named the protected persons as himself and his two daughters. He listed the following conduct of Ms Cauchi as the basis for the application:
5.2Circumstances and dates of incidents that are the basis of this application, such as assaults and injuries, damage to property, harm to pets, emotional or psychological harm, denial of financial autonomy, threats, intimidation, publishing harmful matters, stalking and other relevant facts, with details of any supporting witnesses, other evidence and any reports to police.
5.2.1. 02/01/2018 Defendant sent falsified TTLR to plaintive (sic) for 7 day eviction, Severe intimidation/harassment.
5.2.2. 15/03/2018 Overdue notice after just 12 hours for just 85 cents, their mistake, their banking system. Intimidation/Harassment!
5.2.3. Redacted letter false allegation of harassment again from the plaintive (sic). Intimidation.
5.2.4. 29/01/2019 to 10/06/2019 numerous emails send by principle Defendant designed to intimidate/harass
5.2.5. Countless emails from the defendant employees designed to intimidate/harass
5.2.6. 07/06/2019. SACAT hearing, all defendants turn up at a hearing but not involving them whatsoever purely to intimidate/harass
5.2.7. 07/06/2019. At the SACAT hearing in which the defendants attend, they brought a bodyguard to stand over me and intimidate/harass, the defendant’s boss apparently.
5.2.8. 07/06/2019 Plaintive (sic) was intimidated and harassed by the security Guard prompted by defendant, he wanted to throw me out of the court room.
5.2.9. 12/06/2019 Magistrates Court trial with the property owner, one defendant was witness, but again she brought a bodyguard claiming to be her new boss, who harassed and intimidated the plaintive (sic). He stated he was in court to make sure I do not ask the wrong questions. He was ordered out to leave the courtroom by the Magistrate. (Court transcript pending)
5.2.10.12/06/2019 Magistrates Court trial with the landlord, Ms Pilgrim again turned up to Magistrates court to intimidate and harass, she was not a witness and had no reason to be there and apart from being released by Justice Blue Supreme Court of any further involvement, the defendant did, but to further intimidate.
5.2.11.White car parked outside my street, assuming defendant, when defendant approaches car speeds away.
5.2.12.The plaintive (sic) has no legal proceeding with the defendant whatsoever.
5.2.13. Consumer and Business Affairs are taking the defendant principal (RWAG) to SACAT to investigate falsifying the TTLP, not the plaintive (sic).
5.2.14.The Plaintive (sic) demands the granting of an INTERVENTION ORDER to stop any further intimidation and harassment to the whole family.
5.2.15. The plaintive (sic) demands the granting of an INTERVENTION ORDER to stop any further intimidation and harassment of the defendant turning up to court procedure that have nothing to do with them, unless subpoenaed as a witness.
In relation to Ms Pilgrim, Mr Atkins listed the same conduct as that set out in the application relating to Ms Cauchi, as well as the following three additional items:
5.2.16.The Plaintive (sic) has psychiatrist documented, severe Post traumatic Stress Disorder and Acute Anxiety Panic Attack disorder as well as profound Dyslexic. The defendant is free to course (sic) an insurmountable amount of intimidation and harassment on the plaintive (sic) and whole family is it really too much to ask the courts for an intervention order to give us all peace of mind. We have nothing to do with them.
5.2.17.A Magistrate stated if the defendant has no intension (sic) to come near us at all, has nothing to do with the plaintive (sic), then they have nothing to lose by accepting the intervention order, period.
5.2.18. The same Magistrate stated as fact in law, if a plaintive (sic) feels intimidated and harassed that is all that is needed for an intervention order, regardless what the defendant believes.
The applications were listed before the Magistrate on 10 July 2019. Mr Atkins was unrepresented, as he was before me.
At the hearing, Mr Atkins outlined the conduct of which he complained. He confirmed that his relationship with Ms Cauchi and Ms Pilgrim arose as a result of his renting a property which they managed on behalf of the owner. He referred to attendances by Ms Cauchi and Ms Pilgrim at SACAT hearings, and said that Justice Blue had made orders that precluded them from attending. He complained that they had alleged that he was harassing them, and that they had told a security guard that he was a serious threat to them, which resulted in the security guard sitting “right there” and putting his hand on Mr Atkins’ shoulder.[1] He also said that Ms Cauchi had brought a body guard with her to the hearing.
[1] T3.2-10.
The Magistrate asked Mr Atkins if he had seen a psychologist, psychiatrist or a general practitioner in relation to the harassment. Mr Atkins outlined the treatment proposed by his doctor and, very briefly, the nature of the problems that he was having.[2]
[2] T3.21-33.
Mr Atkins also sought to rely on the fact that he himself was made the subject of an intervention order in the same week. This matter was unrelated to the respondents and related to Mr Atkins’ relationship with his former solicitor. During the hearing, Mr Atkins said that the Magistrate in that matter had told him that if someone just felt intimidated that was good enough for the making of an intervention order.
Mr Atkins then set out his allegation that Ray White had falsified their books to expedite an eviction of Mr Atkins and his family, and advised the Magistrate that he had made a complaint to Consumer Affairs in that regard.
Mr Atkins sought to rely on what he believed to be orders made by Blue J restraining Ms Cauchi and Ms Pilgrim from going near him. On questioning by the Magistrate, Mr Atkins handed up a document; on perusing the document, the Magistrate noted that it was not a court order, and dealt with the question of who should be parties to particular proceedings. I note that this document was not before me.
Mr Atkins then referred to the unrelated matter in the Magistrates Court, where he said he was advised by the magistrate:
…it doesn’t matter whether they think they intimidated me, she said the only matter is if I feel intimidated and that’s the crux of the matter. I feel intimidated that they keep harassing me.[3]
[3] T6.20-23.
The applications were dismissed. Whilst no written reasons were given, the transcript shows that the Magistrate explained the foundations for the issue of an intervention order and that in his view, the circumstances alleged by Mr Atkins did not satisfy the criteria for the issue of one.
The Magistrate said:
An intervention order is where people are behaving in such a way, usually in a relationship, for example, husband wife, or partners, or neighbours, or something like that where the behaviour towards each other is in such a nature that the court needs to step in to interpose some sort of legal consequence for these people if they continue to behave poorly… a small proportion are in relation to psychological or emotional harm. Where you have a tenant problem with your agents, or landlords or whatever as unhappy and distressing as it might be they are commercial matters that you’ve got to sort out in those courts.
…
Whilst I understand that you’re unhappy and upset by what’s occurring it’s not enough to ground an intervention order and even if I’m wrong about that it’s not appropriate that an intervention order be granted in relation to either of these matters because they are currently before the courts dealing with commercial matters.
…
The material that you’ve put before the court, which I’ve read, and what you’ve told me, in my view does not support the making of an order in this jurisdiction...It doesn’t meet the legal requirements.
…
The court is not satisfied that it is reasonable to suspect that the defendants will, without intervention commit an act of abuse against the named protected person…[4]
[4] T4.33 – T7.22.
Grounds of Appeal
On 31 July 2019, Mr Atkins filed an appeal against the dismissal of both applications. The same grounds of appeal were relied on in relation to each application. The grounds of appeal are:
(1) Improper exclusion of evidence, (Plaintive (sic) psychiatrist report.);
(2) Unethical Acts by the Magistrate (Contradictive decision made for the same);
(3) The verdict was unreasonable and couldn’t be supported by the evidence;
(4) The judge made an error of law;
(5) There was a miscarriage of justice. (The Magistrate was contemptuous to the plaintive (sic)).
Mr Atkins also filed an affidavit in support of each appeal.[5] In all relevant respects, the affidavits are identical.
[5] FDN2.
In the affidavits, he relies on the fact that the procedure followed in this matter was different to that followed in the other application for an intervention order in which he was involved. He says that both cases should have been dealt with in the same way. He says that the Magistrate ignored the medical reports which he supplied to the Magistrate. He also submits that he supplied the Magistrate documented evidence of the stalking and intimidation alleged against Ms Cauchi and Ms Pilgrim.
He claims that the Magistrate did not begin to accept or understand the decision handed down by the Chief Justice of this Court in Atkins v Hughes & Anor,[6] which matter relates to the ongoing dispute in SACAT with respect to the condition of the rental property.
[6] [2019] SASCFC 49.
In addition to the affidavit in each matter, Mr Atkins filed an appeal book which contains further documents on which he relies, including records of Ray White in relation to ongoing maintenance on the property, emails between Ray White and Mr Atkins, the emails from Ray White which Mr Atkins says amount to intimidation and harassment, a letter dated 11 June 2018 from a clinical psychologist who has consulted with Mr Atkin’s wife and 2 letters from a psychiatrist who has consulted with Mr Atkins.
Mr Atkins did not provide an outline of submissions, and I have treated his affidavit as a submission.
At the hearing, Mr Atkins took me through the material in the appeal books and highlighted the chronology of the interactions between himself, Ms Cauchi and Ms Pilgrim. He also provided details of the incidents which he considered harassing and intimidating. These included hearings at SACAT, in the Magistrates Court and in the Supreme Court before Blue J, email correspondence, the attendance of Ms Cauchi at a routine inspection of the property despite Mr Atkins’ request that someone else attend, complaints about Mr Atkins’ truck, and attendance at Mr Atkins’ current place of residence.
I then asked Mr Atkins a number of questions, to elucidate the grounds of appeal. In relation to the ground that the Magistrate made an error of law, Mr Atkins referred me to Tab 1 of the appeal book, which is a copy of an intervention order made in the Magistrates Court on 29 April 2019 against Mr Atkins. He explained the significance of the order in this way:
Now, this magistrate said that Susan O'Toole doesn't have to provide any evidence that she is intimidated or harassed. She does not have to supply a psychological report, a psychiatrist's report or any report whatsoever. She only has to feel she is intimidated and therefore she is.
So, what I'm saying here is: one judge can't say one thing and then another judge say the opposite, hopefully.
HER HONOUR:    So, you are saying that in applying the test about whether you should have got an intervention order the magistrate in this matter applied the test wrongly or got the test wrong, is that what you are saying?
MR ATKINS:     Yes, Magistrate McLeod did the opposite to the other magistrate and didn't allow my psychiatrist's report and he said 'Well, there is going to be bickering between the two of you in any case if you are having a court case between each other' but we weren't actually having a court case between each other. That is one of the things he has made a mistake about. But, basically he said the opposite to what O'Toole's magistrate said. So, I'm saying one of them is wrong.[7]
[7]    T12.7-29.
In relation to the ground of “unethical acts”, Mr Atkins said:
The main unethical thing was that I thought was unethical was that the failure to allow the applicant an appropriate opportunity to put his case resulted in a clear denial of process of fairness. So, I took that as not following the law, a breach of the law.[8]
[8] T13.15-20.
In relation to the ground, “miscarriage of justice”, he said:
HER HONOUR:    Thank you. When you say that there was a miscarriage of justice, the magistrate was contemptuous to you, is that based on the same thing, that you feel that you weren't given the opportunity to be heard?
MR ATKINS:     I don't actually know Magistrate McLeod but he seemed to be a very angry person. He was very abrupt. It was more like 'Get out', he come close to that whereas I have judges like yourself, there's quite a few good ones that are very pleasant, listen to what you have to say, where he just wasn't prepared to listen, he wasn't prepared - I felt like I was just wasting his time, probably not quite the way to say it, but screwing up his day, just get out and we'll get on with the next one. I mean, I guess they are only human.[9]
[9]    T13.21-34.
I also confirmed with Mr Atkins that all of the material that he wished me to take into consideration in making my decision on these appeals was contained in the appeal books that he had filed.
Consideration
Doyle J, in Police v Kriticos,[10] set out the nature of an appeal in a matter such as this one:
This is an appeal under s 42 of the Magistrates Court Act 1991 (SA), and is governed by chapter 13 of the Supreme Court Rules 2006 (SA). In particular, under r 286, the appeal is to be by way of re-hearing. This requires that I undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. That said, the appeal is not a hearing de novo, and I should not substitute my own view, or otherwise interfere, unless satisfied that the Judge below has made an error.
Further, it was accepted by the parties on the hearing of this appeal that the decision of the Magistrate involved an exercise of his discretion such that the appellant’s task of establishing error is subject to the principles in House v The King. These principles require that an appellate court only interfere 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 him, has mistaken the facts or has not taken into account some material considerations. 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 properly to exercise the relevant discretion, despite the precise nature or source of that error not being identifiable.[11] (citations omitted)
[10] [2016] SASC 28.
[11] [2016] SASC 28 at [27] – [28].
In Rana v Gregurev,[12] Peek J described the purpose of the Act in the following way:
[12] [2015] SASC 37.
A primary purpose of the legislation is to protect people when it is reasonable to suspect that somebody (a defendant) will, without intervention, commit an act of abuse (whether against the applicant or some other person(s)). The importance of such protection is reinforced by various provisions in the Act, including the very broad definition of “abuse” (s 8), the recitation of the objects of the Act and the broad principles to be applied (ss 5 and 10), and the enactment of a presumption against “exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under s 19AA of the Criminal Law Consolidation Act 1935.”
However, because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
The grounds for issuing intervention orders
Section 6 of the Act deals with the grounds for issuing an “intervention order” which is defined so as to include both an interim and final order. The structure of s 6 (including the use of the conjunctive “and”) makes it quite clear that both interim and final orders may only be issued when the Magistrate finds that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person (s 6(a)) and, the Magistrate also considers that it is appropriate to issue such an order (s 6(b)).
Interim intervention orders
Interim intervention orders may be divided into two classes: those issued by a police officer pursuant to s 18 and those issued by a court pursuant to s 21 (where an interim intervention order has not previously been issued by a police officer).
The present case involves the second of the two classes – an application by the appellant in circumstances where no interim intervention order had previously been issued by a police officer. In such cases the power to dismiss not only arises from the consequence of a failure of an applicant to satisfy the requirements of s 6 but also arises from the positive power of dismissal stated at s 21(3) thus:
(3) At the preliminary hearing, the Court may—
…
(b)dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court.
The effect of s 21(3) is that a Magistrate may dismiss an application of the present type in a summary way (and without necessarily taking oral evidence), when the material before the Magistrate sufficiently indicates that the application is “frivolous, vexatious, without substance or has no reasonable prospect of success”. The Magistrate may otherwise proceed in the normal way to consider whether the requirements of s 6 are established (which may include the taking of oral evidence if thought appropriate).[13]
[13] [2015] SASC 37 at [14]-[19].

In Cook v Galloway,[14] Nicholson J described the role of the Court as follows:
The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.[15]
[14] [2015] SASC 36.
[15] [2-15] SASC 36 at [29].
Thus, a two stage process must be undertaken, bearing in mind the need to balance the interests of the applicant in preventing unwanted and abusive behaviour from another, against the need to ensure that the provisions of the Act are not exploited by frivolous, vexatious or malicious claims.
In considering the grounds of appeal relied on by Mr Atkins, I have taken into consideration his oral submissions, the affidavit that he filed in each appeal at the time of filing his notice of appeal, all of the material in the appeal books, and the transcript of the hearing before the Magistrate. I have taken into consideration the contents of the letters supplied by Mr Atkins’ psychiatrist, and have noted the history of childhood abuse and related symptomatology outlined therein. I also understand that Mr Atkins suffers from dyslexia.
I have also considered the letter provided by the psychologist attended by Mr Atkins’ wife. While I accept that she has reported symptoms of stress and anxiety as a result of the family’s interactions with Ray White, I note that Mrs Atkins is not one of the protected persons listed on Mr Atkins’ application for an intervention order.
Ground One - Improper exclusion of evidence, (Plaintive’s (sic) psychiatrist report)
The Magistrate noted he had read all the material provided by Mr Atkins, and he specifically asked Mr Atkins whether he had received treatment from a medical practitioner as a result of the alleged conduct of Ms Cauchi and Ms Pilgrim. In the circumstances, I am unable to conclude that the Magistrate excluded any evidence on which Mr Atkins sought to rely. While it is true that the Magistrate did not deal with the psychiatrist’s letters specifically or at length, Mr Atkins was not prevented from relying on them and was specifically given the opportunity to bring them to the Magistrate’s attention. I further note that the letters do not, in fact, deal with the conflict between Mr Atkins and Ms Cauchi and Ms Pilgrim, or his issues in regard to the property, or any sequelae of those conflicts. Rather, the letter dated 8 February 2018 provides a brief summary of his current condition and treatment, his childhood, issues which he faced in Coober Pedy, and conflict between him and his former lawyer. The letter dated 22 May 2018 also does not address the issues that are currently before the Court. It confirms that Mr Atkins suffers from post-traumatic stress disorder as a result of abuse that he suffered as a child, and that he has been consulting with the psychiatrist since 2011. It discusses some of the difficulties suffered by Mr Atkins as a result of his post-traumatic stress disorder, particularly as they relate to legal proceedings. Neither letter deals with Mr Atkins’ conflicts relating to the property and Ray White, his interactions with Ms Cauchi and Ms Pilgrim, and the conduct of which he complains. As a result, they are of no probative value in this matter.
Ground 1 of appeal is not made out.
Ground Two - Unethical Acts by the Magistrate (Contradictive decision made for the same)
In submissions, Mr Atkins confirmed that the crux of this ground was that the procedure followed in this matter was different to that followed in a previous application for an intervention order in which he was involved.
In the absence of the transcript of the other hearing that Mr Atkins was referring to, it is impossible for me to determine whether or not a different procedure was indeed followed, although I accept that it is Mr Atkins’ honest belief that this is the case. In my view, however, this is not to the point.
Section 21 of the Act provides, relevantly:
(1)    On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear.
…
(3)     At the preliminary hearing, the Court may—
(a)     issue an interim intervention order against a defendant if it appears to the Court that there are grounds for issuing the order; or
(b)     dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court.
(4)If the applicant alleges non-domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account—
(a)     whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and
(b)     whether the application is in the nature of a cross application; and
(c)     any other matters that the Court considers relevant.
Section 21(3) provides the Magistrate with a very broad discretion. He or she may dismiss the application at the preliminary hearing, without having heard evidence, if he or she considers that there are grounds sufficient to do so. This broad discretion makes it clear that each application must be dealt with on its facts; in some cases, it will be appropriate to proceed to a further hearing where oral evidence is adduced, whereas in others, dismissal at the preliminary hearing may be appropriate.
The mere fact that the Magistrate dealt with this matter in a way different to that in another matter is not in itself a sign of error.
Section 21(4) requires the Magistrate, at the preliminary hearing, to take into consideration a number of factors, including whether, by s 21(4)(a) there are other more appropriate and practical ways to resolve the conflict between the parties. While the Magistrate did not specifically refer to s 21(4), it is clear that he took the factors set out there into consideration. He asked Mr Atkins about the progress of the related proceedings in both SACAT and the Magistrates Court, confirmed that Mr Atkins was no longer in any sort of relationship with the landlord or Ray White, and reached the conclusion that it was not appropriate to grant an intervention order in circumstances where there were extant proceedings in other courts dealing with the issues which have given rise to the applications.
In these circumstances, I am unable to conclude that the Magistrate made an error in the application of the Act. The mere fact that he proceeded differently in this matter, to how an application involving different circumstances and a different applicant is not relevant. Every application must be dealt with on its own facts. The breadth of the discretion afforded by s 21 allows the Magistrate to adapt his or her approach on the basis of what is appropriate in the individual case.
Ground 2 of appeal is not made out.
Ground Three – Verdict was unreasonable and couldn’t be supported by the evidence
Mr Atkins did not specifically address this ground of appeal in his submissions, however, I took it to mean that in his view, the evidence that he adduced as to the conduct of Ms Cauchi and Ms Pilgrim was such that dismissal could not be justified.
In reaching his decision, the Magistrate considered the conduct outlined by Mr Atkins, including the conduct that he says occurred at various court hearings, the orders of Blue J, and falsification of books and records to cause Mr Atkins and his family to be evicted. Having reviewed the transcript and the Magistrates Court file, it does not appear to me that the Magistrate failed to take into consideration any of the evidence that was before him. It is not clear to me whether the Magistrate had before him all of the material that is now before me. I have made the assumption that he did.
In Police v Giles,[16] the Chief Justice said:
I will proceed in this matter on the basis that the reasonable suspicion that the defendant will, if unrestrained, commit an act of abuse must be founded on findings of fact made on the balance of probabilities about past events. However, I would make two observations about the grounds for making an intervention order. First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.[17]
[16] [2013] SASC 11.
[17] [2013] SASC 11 at [30].
While the Magistrate did not specifically address the question in this way, it can be inferred that, after considering the evidence relied on by Mr Atkins, he formed the view that there were no facts giving rise to a reasonable suspicion that Ms Cauchi or Ms Pilgrim would commit an act of abuse against Mr Atkins. I am of the view that, on the basis of the evidence before him, it was open to the Magistrate to find that an intervention order was not warranted in the circumstances.
In my view, the evidence does not support the making of an intervention order; indeed, many of the allegations made by Mr Atkins as to the conduct of Ms Cauchi and Ms Pilgrim are not supported by any evidence. For example, Mr Atkins refers to a white car parked outside his house which he assumes belongs to one of the defendants. He also says that they informed the local council that his truck was parked illegally, causing him to receive parking fines. There is in fact no evidence to support either of these assumptions.
It is clear that many of the emails which he regards as harassing and intimidating are merely automatically generated advertising material. It is difficult to understand how that can be taken as intimidation or harassment.
The various allegations made by Mr Atkins about the behaviour of the defendants and their associates at various court hearings are unsupported by any evidence.
The Magistrate satisfied himself that there was no longer any relationship between Mr Atkins and Ms Cauchi and Ms Pilgrim; thus, any chance for further contact between them, other than a court hearings, is greatly reduced.
In the circumstances, Mr Atkins has not demonstrated that there was before the Magistrate any evidence that should have compelled him to grant an interim intervention order. Even taking Mr Atkins’ evidence at its highest, the Magistrate was justified in reaching the conclusion that it was not reasonable to suspect that either Ms Cauchi or Ms Pilgrim will commit an act of abuse against Mr Atkins in the future.
Ground 3 is not made out.
Ground Four – The judge made an error of law
The error of law identified by Mr Atkins related to the different approach applied by the magistrate in the other intervention order matter in which he has been involved. He says in that matter the magistrate told him that no evidence of a psychiatrist or psychologist attesting to intimidation or harassment was required; the applicant just has to feel that he or she is intimidated. In contrast, the Magistrate in this matter did not allow Mr Atkins’ psychiatrist’s report. Nor did he accept Mr Atkins’ statement that he felt intimidated, as had happened in the other case. He also said that the Magistrate made an error, in that he appeared to be of the belief that Mr Atkins was involved in litigation involving Ms Cauchi and Ms Pilgrim, which is not the case.
I have already dealt with the question of the different treatment of this matter as compared to another matter, and the Magistrate’s treatment of the psychiatric report. While it appears that the Magistrate may have been of the mistaken belief that Mr Atkins was involved in litigation in which Ms Cauchi and Ms Pilgrim are parties, this error of fact is not sufficient to ground an appeal. Mr Atkins remains involved in litigation with the owners of the property managed by Ray White; thus, Ms Cauchi and Ms Pilgrim have peripheral involvement in that matter, which involvement has led to complaints of intimidation and harassment by Mr Atkins. The fact that they are not actually parties to that litigation is neither here nor there.
It is necessary, however, to deal with Mr Atkins’ contention that his subjective feelings of harassment and intimidation are enough to warrant an intervention order.
I understand the basis for Mr Atkins’ submission. Section 8(2) of the Act defines an “act of abuse” as including one which results in or is intended to result in emotional or psychological harm. Section 8(3) provides:
(3)     "Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
I have inferred that Mr Atkins has interpreted the legislation to mean that an act will be an act of abuse for the purpose of the Act, if the applicant suffers mental illness, or nervous shock, or distress, anxiety or fear that is more than trivial, even in circumstances where a reasonable person in the applicant’s position would not feel such mental illness, or nervous shock, or distress, anxiety or fear that is more than trivial. Thus, he is entitled to an intervention order if it is reasonable to suspect that the defendant will commit an act that would cause him to feel mental illness, or nervous shock, or distress, anxiety or fear that is more than trivial, even in circumstances where the reasonable person in his position would not do so. There is no requirement that the conduct be looked at in an objective way to determine whether it would have the requisite effect.
Section 8(4)(j) provides the following as an example of an act of abuse causing emotional or psychological harm:
communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person
Thus, s 8(4)(j) requires a reasonable expectation that a communication will cause emotional or psychological harm, for it to amount to an act of abuse. In my view, there is no reasonable expectation that an automatically generated email communication would cause emotional or psychological harm. The fact that Mr Atkins did, in fact, suffer emotional or psychological harm, is not sufficient to form the basis for an intervention order, in circumstances where there is no reasonable expectation that this would occur.
While the other instances of abuse alleged by Mr Atkins do not require the same “reasonable expectation” as provided for in s 8(4)(j), I am of the view that they are also insufficient to ground an intervention order, even though I accept that Mr Atkins genuinely feels that he suffered emotional or psychological harm as a consequence of them. This is on the basis that, for a number of the allegations, there is in fact no evidence to support Mr Atkins’ contention that the acts complained of were perpetrated by Ms Cauchi or Ms Pilgrim. This includes the allegations in relation to the truck and the vehicle parked outside his house. Furthermore, in relation to all of the matters alleged by Mr Atkins, there is in fact, no evidence that they are causative of the distress felt by Mr Atkins. The letters from Mr Atkins’ psychiatrist attribute the distress felt by Mr Atkins to a range of their events occurring throughout his life, but not to the events to which these proceedings relate.
In the absence of any evidence of any causative link between the distress suffered by Mr Atkins, and the actions of the defendants, I am unable to conclude that the Magistrate made an error of law.
Ground Five – There was a miscarriage of justice, (The Magistrate was contemptuous to the plaintive (sic))
This ground appears to be based on the Magistrate’s demeanour and Mr Atkins’ perception that he was not given the opportunity to be heard.
Having reviewed the transcript, I do not consider that the Magistrate’s demeanour was other than appropriate. While he was, perhaps, not fulsome in his reasons, he gave Mr Atkins the opportunity to put his case, asked him appropriate questions, and explained, albeit somewhat briefly, the reasons for his decision.
Ground 5 is not made out.
For completeness, I must deal with Mr Atkins’ allegation that the Magistrate “did not even begin to accept or understand the decision handed down by the Adelaide Chief Justice (Atkins v Hughes & Anor [2019] SASCFC 49)”.[18]
[18] FDN 2 in each file at [11].
The decision in Atkins v Hughes relates to the dispute between Mr Atkins and the owners of the property managed by Ms Pilgrim and Ms Cauchi, and is an appeal from a decision of the President of the South Australian Civil and Administrative Tribunal. The appeal was allowed by the Chief Justice, on the basis that Mr Atkins had been denied procedural fairness at a hearing before a member of the SACAT. It is not clear to me what Mr Atkins says is the relevance of this decision to the matter currently before the Court, save for reinforcing the principal that all parties to litigation must be given an appropriate opportunity to put their case to the Court, with special care to be taken with unrepresentative litigants to ensure that they are afforded this opportunity.
As I have set out above, I do not consider that Mr Atkins was denied procedural fairness by the Magistrate.
In the circumstances, I do not consider that any of the grounds of appeal relied on by Mr Atkins have been made out. There was no error on the part of the Magistrate in exercising his discretion to dismiss the applications at the preliminary hearing.
The appeals are dismissed.