Atkins v Cauchi; Atkins v Pilgrim

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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

  1. This is an appeal from a Magistrate’s dismissal of two applications for intervention orders.

    Background

  2. 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.

  3. 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.

  4. 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.

  5. 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…

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Details
Case
[2019] SASC 184
Decision Date

CaseChat Overview and Summary

The appellant, Mr Atkins, appealed the dismissal of two applications for intervention orders against two respondents, Ms Cauchi and Ms Pilgrim. These appeals were heard in the Supreme Court of South Australia, where the appeals were dismissed. The applicants and respondents had been involved in a property dispute that led to litigation in the South Australian Civil and Administrative Tribunal (SACAT). The applicants filed applications for intervention orders under the Intervention Orders (Prevention of Abuse) Act 2009 (SA), alleging that the respondents would commit acts of abuse against them. The primary judge found that the grounds for appeal were not established.

The first ground of appeal was that the magistrate improperly excluded evidence from the psychiatrist attended by Mr Atkins’ wife. The court found that the psychiatrist’s letters did not deal with the conflict between Mr Atkins and the respondents or any issues in regard to the property, and thus were not of probative value. The second ground of appeal was that the magistrate had acted unethically by following a different procedure in this matter compared to a previous application for an intervention order. The court held that section 21 of the Act provides the magistrate with a broad discretion to dismiss an application at the preliminary hearing if there are sufficient grounds to do so, and that the magistrate had taken into consideration the relevant factors in deciding not to grant an intervention order.

The court held that the appeal was to be by way of re-hearing, and that the appellant's task of establishing error was subject to the principles in House v The King. The court found that the magistrate had not acted on a wrong principle, had not allowed extraneous or irrelevant matters to affect him, had not mistaken the facts, and had taken into account the relevant considerations. The court also found that the result embodied in the order made was not unreasonable or plainly unjust. The court emphasised the importance of balancing the broad jurisdiction of the Act with the need to prevent the abuse of this jurisdiction by specious or unwarranted claims.

The court dismissed the appeals and affirmed the decision of the magistrate. The final orders of the court were that the appeals be dismissed, that the costs of the appeals be paid by the appellant, and that the security for costs be discharged.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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/harass5.2.5. Countless emails from the defendant employees designed to intimidate/harass5.2.6. 07/06/2019. SACAT hearing, all defendants turn up at a hearing but not involving them whatsoever purely to intimidate/harass5.2.7. 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 ordersSection 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 ordersInterim 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].