Attorney-General v Groom

Case [2023] SASC 18

Supreme Court of South Australia

(Civil)

ATTORNEY-GENERAL v GROOM

[2023] SASC 18

Judgment of the Honourable Justice Blue  

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS

The Attorney-General seeks an order under section 39 of the Supreme Court Act 1935 (SA) prohibiting the respondent from instituting, without permission of this Court, proceedings in a prescribed court relating to the intervention order made against him on 19 October 2011 that was confirmed on 10 December 2013.

The respondent by cross action seeks declarations that the interim order made on 19 October 2011 was invalid or lapsed on 26 October 2011, consequently all subsequent proceedings based on or relating to that order were without lawful authority, and consequently the Attorney-General’s application was invalidly commenced.

Held:

1The interim order made on 19 October 2011 was not invalid by reason of any of the matters raised by the respondent (at [147]).

2The adjournment order made on 26 October 2011, and subsequent adjournment orders, were not invalid by reason of any of the matters raised by the respondent (at [162]).

3The cross action must be dismissed (at [167]).

4Each of the 11 matters alleged to be vexatious comprised a proceeding instituted by the respondent in a prescribed court within the meaning of section 39 of the Supreme Court Act 1935 (at [81], [97]-[100]).

5Each of the 11 matters alleged to be vexatious were instituted without reasonable ground by the respondent in a prescribed court within the meaning of section 39 of the Supreme Court Act 1935 (at [183], [195], [227], [229], [234], [243], [250], [252], [263], [266], [269]).

6The respondent instituting vexatious proceedings persistently (at [276]).

7The discretion should be excised to make an order under section 39 (at [280]).

8Order made prohibiting the respondent from instituting proceedings, without the permission of the Supreme Court, in a prescribed court relating to the intervention order made against him on 19 October 2011 that was confirmed on 10 December 2013 (at [281]).

Supreme Court Act 1935 (SA) s 39, s 39(1); Domestic Violence Act 1994 (SA) s 4(1), s 4(2), s 6, s 7, s 8, s 9, s 1, s 21, s 22, s 26; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26, referred to.
Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28 ; Attorney-General (WA) v Michael [1999] WASCA 181 ; Attorney-General v Wentworth (1988) 14 NSWLR 481 ; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; Brogden v Attorney-General [2001] NZCA 208; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478; In re Becker [1975] 1 WLR 842 ; In re Vernazza [1960] 1 QB 197 ; Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 ; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355; Visic v Proude [2013] SASCFC 62, (2013) 116 SASR 404 , considered.

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Attorney-General v Groom [2023] SASC 18
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[2023] SASC 18
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CaseChat Overview and Summary

In Attorney-General v Groom, the Full Court of the Supreme Court of South Australia was called upon to determine whether Mr Groom's cross action for declarations regarding the validity of an interim domestic violence restraining order and the proceedings based on it was vexatious. Mr Groom had a contentious relationship with Ms Aitken, which resulted in various legal proceedings, including the making of the interim order on 19 October 2011. The legal issues centred on the validity of the interim order, the circumstances in which Mr Groom consented to its confirmation on 10 December 2013, and whether Mr Groom’s cross action was vexatious.

The court examined the evidence and submissions to determine whether the interim order was valid and whether Mr Groom's consent to its confirmation on 10 December 2013 was freely given. The court found that the interim order remained in effect despite the commencement of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Regarding Mr Groom's consent, the court held that he was fully aware of the proceedings and had given informed consent. The court noted that Mr Groom's complaints about the circumstances of his consent were unfounded and that his real grievance lay in his perception of injustice arising from the breakdown of his relationship with Ms Aitken. The court concluded that Mr Groom’s cross action was vexatious because it was based on a deep-seated grievance rather than any legitimate legal issue. Consequently, the cross action was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Mr Groom by cross action seeks declarations that the interim order made on 19 October 2011 was invalid or alternatively lapsed on 26 October 2011, consequently all subsequent proceedings based on or relating to that order were without lawful authority, and consequently the Attorney-General’s application was invalidly commenced.Background In about 2004 Mr Groom commenced a relationship with Melissa Aitken (a pseudonym). They lived together on and off over the next seven years. In 2005 their son was born. On 8 October 2011 Mr Groom moved out of the home in which they were living. On 14 October 2011 Ms Aitken affirmed an affidavit to support an application to be filed for a domestic violence restraining order against Mr Groom (Ms Aitken’s affidavit). She alleged that Mr Groom punched her in the face and to the body at her home in September 2008 and punched her in the face in a car on 3 June 2011. She alleged that during the previous month Mr Groom “stalked” her on six occasions. She alleged that on 7 October 2011 Mr Groom appeared at a bar where she was with some friends and assaulted two male friends. She alleged that on 8 October 2011 Mr Groom appeared at her house and, when her mother tried to get the keys from her car, Mr Groom wrenched her away. On 19 October 2011 a complaint was filed in the Magistrates Court by a police officer, Stephen Bradfield, against Mr Groom seeking a domestic violence restraining order for the benefit of Ms Aitken (the intervention order proceeding). On 19 October 2011 a Magistrate made a domestic violence restraining order (the interim order) in the intervention order proceeding under subsection 9(2) the Domestic Violence Act 1994 (SA) (the Domestic Violence Act). On 19 October 2011 the Magistrates Court issued a domestic violence restraining order and summons in the intervention order proceeding. It contained the interim order and summoned Mr Groom to appear on 26 October 2011. Mr Groom was served with the order and summons and Ms Aitken’s affidavit. On 26 October 2011 Mr Groom appeared in the Magistrates Court in answer to the summons. Magistrate O’Connor adjourned the matter to a pre-trial conference on 16 December 2011. It is in issue in this proceeding whether the interim order lapsed on 26 October 2011. For convenience, I assume for the purposes of this chronological narrative, but without deciding, that the interim order continued to have effect. On 9 December 2011 the Intervention Orders (Prevention of Abuse) Act 2009 (SA) came into force (the Intervention Orders Act). It repealed and replaced the Domestic Violence Act. By its transitional provisions, a domestic violence restraining order in force under the Domestic Violence Act immediately before the commencement of the Act continued in force as if it were issued under the Invention Orders Act. On 9 December 2011 the interim order ceased to be an interim restraining order under the Domestic Violence Act and became an interim intervention order under the Intervention Orders Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if the interim order had been invalid or ceased to have effect on 26 October 2011, for the reasons given above, it does not follow that the Attorney General’s application was invalidly commenced.Conclusion Mr Groom’s cross action must be dismissed.Appeals against confirmation orderAppeal against Magistrate Whittle’s confirmation order The first proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal to the Supreme Court against the 10 December 2013 confirmation order by Magistrate Whittle. In his amended notice of appeal, which he confirmed at the hearing of the appeal was the one on which he wished to proceed, Mr Groom included nine grounds for seeking permission to appeal and seven grounds of appeal. The 16 grounds included a large degree of overlap and repetition. As argued, there were effectively five sets of grounds of appeal. First, Mr Groom contended that his consent to confirmation of the interim order given on 10 December 2013 was vitiated by the circumstances in which it was given, just as Sulan J had held that his consent given on 22 February 2012 was vitiated. He contended that Mr Redmond was briefed only in relation to the criminal charges and not the intervention order proceeding. He contended that he was not told that he was under no obligation to have the intervention order proceeding, which was listed only for mention, dealt with on that day. Kelly J rejected this contention in the following terms:As to the first issue, namely whether the lawyer representing the appellant was not briefed with regard to the intervention order matter but only briefed to appear in relation to the 31 charges set for trial that day, a perusal of the transcript of the hearing before the Magistrate on 10 December 2013 points to the contrary conclusion. …The affidavit filed by the prosecutor states that on the morning before trial he had a discussion with senior prosecutors and with the alleged victim Ms Aitken, after which he approached Mr Redmond and asked him to consider a proposal put forward by Ms Aitken for resolution of the matter. That resolution was that if the appellant would consent to confirmation of the intervention order the police would not proceed with the other 31 charges. Mr Redmond spoke with the appellant privately after which Mr Redmond conveyed to the prosecutor that the appellant agreed to the proposal. The transcript of what transpired in court after that brief adjournment does not support the appellant’s contention either that his lawyer was not briefed to represent him generally on that day or the appellant’s contention that he was not made aware of the fact that he was under no obligation to have the matter of the restraining order dealt with on that day. When the court reconvened Mr Redmond again appeared for the appellant. In court was Ms Aitken, Ms Aitken’s current partner who was to have been a prosecution witness, the investigating officer Constable Lum, the prosecutor and the appellant. The prosecutor informed the Court that the matter had resolved in terms of an agreement to confirm the interim intervention order and the police would then withdraw the 31 substantive charges. The transcript shows that the Magistrate then adjourned the matter briefly to enable the parties to re-write the terms of the intervention order rather than amend the existing order and then come back to court. The people involved in drafting the final order were Mr Redmond, Ms Aitken, Constable Lum, the appellant and the prosecutor. When the Court was reconvened the Magistrate confirmed the order. Significantly it is obvious the appellant was present during the whole proceedings, made no objection to the way in which the matter proceeded and confirmed personally after his Honour enquired whether he would accept service of the confirmed order by saying “of course your Honour”. The plain inference from the court record and the transcript of the hearing is that Mr Redmond was briefed to appear on behalf of the appellant and to consent to the order in the terms which it was finally made. Significantly, the order had endorsed upon it the words “this order is confirmed by the consent of the defendant without admission of the facts”. The situation confronting the appellant on 10 December 2013 was very different to the circumstances which Sulan J dealt with in Groom v Police (No 3) arising out of the appellant’s consent to the order made on 22 February 2012. As I have noted earlier, Sulan J held that the appellant’s consent to the confirmation of the intervention order on 22 February 2012 was given in circumstances in which the appellant considered he had no satisfactory alternative but to agree. That is the basis on which Sulan J set aside the earlier order.On 22 February 2012 the appellant was in custody and believed he could not properly defend the proceedings. He did not have relevant documentation in court that day, and was not aware that he could apply for a further adjournment. In those circumstances the appeal turned on the issue of whether the appellant’s consent to confirmation of the interim intervention order was freely given. The situation confronting the appellant on 10 December 2013 could hardly have been more different. He was not in custody. He was present throughout the negotiations on the morning of 10 December 2013. He was present in court when the order was confirmed and personally agreed to accept service. For these reasons I cannot accept the appellant’s contentions with respect to grounds 1, 2, 4, 5, 6, 7 identified in the application for permission to appeal. The appellant was well aware of his rights that morning. I am fortified in reaching this conclusion particularly in light of the appellant’s previous experience in court with regard to this matter. Each of the appellant’s complaints about the circumstances in which he consented again to the confirmation of the interim intervention order on 10 December 2013 are without foundation.…It became apparent during the appellant’s submissions on appeal that the appellant maintains an ongoing deeply felt grievance against his former partner and what he perceives to be the injustice of the various legal proceedings against him which all appear to have arisen out of the breakdown of his relationship with his former partner. It is this ongoing sense of grievance and not any denial of any of the appellant’s procedural rights on 10 December 2013, which I find to be the real basis of the appellant’s appeal to this Court. In the end the only issue which arises on this appeal is whether the appellant gave informed consent to his lawyer to act on his behalf to negotiate a resolution of all matters before the Court on 10 December 2013.I do not accept the appellant’s contention that his lawyer was not briefed on the wishes of the appellant with regard to the restraining order. The transcript of the hearing on 10 December 2013 alone satisfies me that the appellant was well aware of what occurred in court on 10 December 2013, was present throughout the discussions and gave informed consent to his lawyer to accept the offer of the police to withdraw the 31 charges listed for trial that date in consideration of the appellant agreeing to confirmation of the intervention order.[31] [31] Groom v Police [2014] SASC 41 at [15], [17]-[24], [30]-[32]. (Footnote omitted)

Ratio Decidendi

Legal Principle Established

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