Atkins v Protected Person - [2022] SASCA 130

Supreme Court of South Australia
(Court of Appeal: Criminal)
ATKINS v PROTECTED PERSON
[2022] SASCA 130
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
30 November 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The litigation concerns an intervention order made pursuant to s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) by a magistrate on 3 August 2021. An interim intervention order was made on 29 April 2019 and the trial concerning the confirmation of that order was heard on 1 July 2021.
A judge of this Court heard an application for leave to appeal against the intervention order on 23 December 2021 and on 1 April 2022 her Honour granted leave to appeal but dismissed the appeal. The applicant now seeks an extension of time to appeal that decision.
The applicant also seeks by interlocutory application an order that a psychiatrist review various materials and provide a report.
The Court held:
1.This appeal is properly described as vexatious. The application for leave to appeal is dismissed.

2. The application for an extension of time in which to seek leave to appeal is dismissed.
3.The interlocutory application dated 11 November 2022 to elicit expert psychiatric opinion evidence is dismissed.

4. The applicant is to pay the respondent’s costs fixed in an amount of $850.
Disability Discrimination Act 1992 (Cth); Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8; Limitation of Actions Act 1936 (SA); Magistrates Court Act 1991 (SA) s 42; Supreme Court Criminal Rules 2014 (SA) r 104V, referred to.
Atkins v Protected Person [2022] SASC 31; White v Police [2018] SASC 124, considered.

ATKINS v PROTECTED PERSON
[2022] SASCA 130
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

The applicant seeks leave to appeal pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 196.2(b) of the Joint Criminal Rules 2022 (SA) by Notice of Appeal dated 16 August 2022.
This litigation concerns an intervention order made pursuant to s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Intervention Act) by a magistrate on 3 August 2021. An interim intervention order had earlier been made on 29 April 2019 and the trial concerning the confirmation of that order was heard on 1 July 2021. A judge of this Court heard an application for leave to appeal against the intervention order on 23 December 2021 and on 1 April 2022 her Honour granted leave to appeal but dismissed the appeal.[1]
[1] Atkins v Protected Person [2022] SASC 31 (McDonald J).
The applicant now seeks an extension of time to appeal that decision, though the basis for the extension of time and the grounds of appeal remain unclear.
In addition, the applicant seeks by interlocutory application an order that a psychiatrist review various materials and provide a report.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Atkins v Protected Person

Details

AGLC: Atkins v Protected Person [2022] SASCA 130
Case: [2022] SASCA 130
Decision Date: 30 November 2022

CaseChat Overview and Summary

The applicant, Atkins, sought an extension of time to seek leave to appeal, leave to appeal, and an interlocutory order to obtain expert psychiatric opinion evidence. The respondent was a protected person. The matter came before the court on an interlocutory application.

The court was required to determine whether to grant an extension of time for the applicant to seek leave to appeal, whether to grant leave to appeal itself, and whether to permit the applicant to elicit expert psychiatric opinion evidence.

The court dismissed the application for an extension of time to seek leave to appeal, and also dismissed the application for leave to appeal. Furthermore, the interlocutory application to obtain expert psychiatric opinion evidence was dismissed. The applicant was ordered to pay the respondent's costs, fixed at $850.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances, the interlocutory application dated 11 November 2022 must be dismissed. Conclusions The application for an extension of time in which to seek leave to appeal is dismissed. The application for leave to appeal is dismissed. The interlocutory application dated 11 November 2022 to elicit expert psychiatric opinion evidence is dismissed. The applicant will pay the respondent’s costs fixed in an amount of $850.

Ratio Decidendi

Legal Principle Established

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