Attorney-General v Groom

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.

ATTORNEY-GENERAL v GROOM
[2023] SASC 18
Civil

BLUE J: The applicant the Attorney-General seeks an order under section 39 of the Supreme Court Act 1935 (SA) (the Supreme Court Act) prohibiting the respondent Stephen Barry Groom 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.
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.
On 16 December 2011 at the pre-trial conference, Magistrate O’Connor listed the intervention order proceeding for trial on 22 February 2012.
On 16 January 2012 Ms Aitken affirmed a second affidavit which was filed in the intervention order proceeding.
On 22 February 2012 in the morning, Mr Groom, who was self-represented, applied for an adjournment of the trial, which was refused by Magistrate O’Connor, but the trial was adjourned to the afternoon before Magistrate Whittle.
Mr Groom sought advice from his lawyer who had been acting for him in relation to criminal proceedings but not the intervention order proceeding. It was decided that Mr Groom would consent to confirmation of the interim order.
In the afternoon, Mr Groom’s lawyer represented him in the intervention order proceeding and consented, pursuant to subsection 23(3) of the Intervention Orders Act, to confirmation of the interim order. Magistrate Whittle confirmed the interim order and it thereby became a final order.
On 18 September 2012 Mr Groom appealed against the Magistrate’s order. The appeal was heard by Sulan J on 4 December 2013 and 26 March 2013. Mr Groom was self-represented. Sulan J reserved judgment.
On 25 and 26 March 2013 Sulan J heard two other appeals by Mr Groom, in which he was self-represented. The appeals were against two convictions following trial of assaulting Ms Aitken and contravening a term of the interim order on 11 December 2011; and three convictions following entry of guilty pleas of contravening a term of the intervention order and a bail agreement on 15 November 2012 and contravening a bail agreement between 15 and 16 November 2012. Both appeals were conceded by the Police. Sulan J delivered ex tempore reasons for allowing the appeals, set aside the convictions and remitted the charges for trial.[1]
[1] Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50.
On 25 June 2013 Sulan J delivered reasons for judgment in Mr Groom’s appeal against confirmation of the interim order. Sulan J granted an extension of time to appeal, allowed the appeal, set aside the order by the Magistrate dated 22 February 2012 and remitted the matter to the Magistrates Court for hearing.
On 5 July 2013 the intervention order proceeding was listed for trial on 17 September 2013.
On 17 September 2013 Magistrate Whittle deemed that it would not be in the interests of justice for the trial to proceed on that day, vacated the listing for trial and relisted the matter for trial on 10 December 2013, with three days set aside.
On 29 October 2013 Magistrate Whittle adjourned the matter for mention only to 10 December 2013.
On 10 December 2013 criminal charges against Mr Groom involving a total of 31 counts came on for trial before Magistrate Whittle in the Magistrates Court. The charges comprised six counts of breaching a domestic violence restraining order; 12 counts of breaching an intervention order; 12 counts of breach of bail; and one count of aggravated assault. Mr Groom was represented by Mr Redmond. Mr Redmond negotiated with the police prosecutor a resolution on the basis that the Police would tender no evidence on the criminal charges in return for Mr Groom consenting to confirmation of the interim order.
The criminal proceedings were called on before Magistrate Whittle. Mr Redmond and the police prosecutor informed the Magistrate of the resolution. The Magistrate made an order varying the interim order and confirmed the varied interim order.
Intervention order appeals
On 6 January 2014 Mr Groom filed in the Supreme Court a notice of appeal against the 10 December 2013 confirmation order. He filed a further amended notice of appeal (the amended notice of appeal) on 3 March 2014. This is the first proceeding that the Attorney-General contends was instituted without reasonable ground.
On 28 February 2014 Mr Groom filed an affidavit in support of the appeal. He also filed a summary of argument.
On 7 March 2014 Kelly J heard the appeal. Towards the beginning of the hearing, Kelly J referred to the transcript of the hearing before the Magistrate on 10 December 2013. The transcript was before Kelly J (and was tendered in this proceeding) but it appears that Mr Groom did not have a copy of the transcript at the hearing. Kelly J reserved judgment.
On 21 March 2014 Kelly J delivered reasons for judgment dismissing the appeal.[2]
[2] Groom v Police [2014] SASC 41.
On 2 September 2014 Mr Groom filed in the Supreme Court of notice of appeal seeking permission to appeal to the Full Court against the judgment of Kelly J. This is the second proceeding that the Attorney-General contends was instituted without reasonable ground.
The Full Court heard the application for permission and an extension of time in which to appeal in private in accordance with the usual practice.
On 19 November 2014 the Full Court delivered reasons for judgment for refusing permission to appeal.[3]
[3] Groom v Police [2014] SASCFC 125.
Civil proceedings
On 19 November 2015 Mr Groom instituted a civil action in the Supreme Court against the State of South Australia seeking damages of $2.5 million (the civil action). This is the third proceeding that the Attorney-General contends was instituted without reasonable ground.
On 17 February 2016 Mr Groom filed a second statement of claim in the civil action. The principal pleaded claims were breach of duty of care by South Australia Police, the Director of Public Prosecutions, the Department of Corrections, the Department of Families and Communities, Magistrate O’Connor and Magistrate Whittle; false imprisonment; and malicious prosecution.
The State filed an interlocutory application seeking summary dismissal of the action under rule 193 of the Supreme Court Civil Rules 2006 (SA) (the Rules) on the ground that the statement of claim disclosed no reasonable cause of action or rule 232 of the Rules on the ground that there was no reasonable basis for the claim against the State.
On 5 April 2016 Master Dart heard the interlocutory application and reserved judgment.
On 21 June 2016 Master Dart delivered reasons for judgment summarily dismissing the action under rule 232 of the Rules.
On 12 July 2016 Mr Groom filed in the Supreme Court of notice of appeal appealing against the judgment of Master Dart. This is the fourth proceeding that the Attorney-General contends was instituted without reasonable ground.
On 15 February 2017 the Full Court heard the appeal. The Full Court reserved judgment.
On 1 May 2017 the Full Court delivered reasons for judgment dismissing the appeal.[4]
[4] Groom v State of South Australia [2017] SASCFC 35.
On 11 October 2017 Mr Groom filed an interlocutory application in the civil action seeking that the judgment of the Full Court be set aside under rule 242 of the Rules on the ground that there had been a miscarriage of justice. This is the eighth application that the Attorney-General contends was instituted without reasonable ground.
On 11 October 2017 Mr Groom filed an affidavit sworn on 10 October 2017 in support of the application.
On 31 October 2017 the Full Court heard the set aside application. The Full Court reserved judgment.
On 7 December 2017 the Full Court delivered reasons for judgment dismissing the set aside application.[5]
[5] Groom v Police; Groom v State of South Australia [2017] SASCFC 161.
First revocation application
On 16 June 2016 Mr Groom filed an application in the Magistrates Court to revoke the intervention order under section 26 of the Intervention Orders Act.[6] This is the fifth proceeding that the Attorney-General contends was instituted without reasonable ground.
[6] The application was not tendered but was referred to in the reasons for judgment of the Full Court.
On 29 June 2016 Mr Groom filed an affidavit in support of the application.[7]
[7] The affidavit was not tendered but was referred to in the reasons for judgment of the Magistrate Grasso.
On 26 October 2016 Sergeant Sharon Fulcher filed an affidavit in opposition to the application stating that she had been told by Ms Aitken that there had been no change in circumstances and she wished the order to continue.[8]
[8] The affidavit was not tendered but was referred to in the reasons for judgment of the Magistrate Grasso and the Full Court.
On 30 November 2016 Magistrate Grasso heard the revocation application. He gave ex tempore reasons for dismissing the application on the ground that there was no allegation or evidence of a substantial change in relevant circumstances since the order was issued.
On 16 December 2016 Mr Groom filed in the Supreme Court a notice of appeal against the dismissal of his revocation application (number 14 of 2017) (the revocation appeal). This is the sixth proceeding that the Attorney-General contends was instituted without reasonable ground.
On 13 February 2017 Vanstone J heard the appeal.
On 23 February 2017 Vanstone J delivered reasons for judgment refusing permission to appeal.[9]
[9] Groom v Police [2017] SASC 21.
On 15 March 2017 Mr Groom filed in the Supreme Court a notice of appeal appealing and seeking permission to appeal against the judgment of Vanstone J. This is the seventh proceeding that the Attorney-General contends was instituted without reasonable ground.
On 31 October 2017 the Full Court heard the appeal and application for permission to appeal. The Full Court reserved judgment.
On 7 December 2017 the Full Court delivered reasons for judgment dismissing the application for permission to appeal.[10]
[10] Groom v Police; Groom v State of South Australia [2017] SASCFC 161.
Mr Groom sought special leave to appeal to the High Court against the judgment of the Full Court.
On 19 April 2018 Bell and Gageler JJ dismissed Mr Groom’s application for special leave to appeal.[11]
[11] Groom v Police [2018] HCASL 90.
Second revocation application
On 27 April 2020 Mr Groom filed an application in the Magistrates Court to revoke the intervention order under section 26 of the Intervention Orders Act. This is the ninth proceeding that the Attorney-General contends was instituted without reasonable ground.
On 27 April 2020 Mr Groom filed an affidavit sworn on that date in support of the application. On 26 May 2020 he filed a further affidavit in support of the application.[12]
[12] The affidavit was not tendered but was referred to in the reasons for judgment of Magistrate Sheppard.
On 26 May 2020 Magistrate Sheppard heard the revocation application. She gave ex tempore reasons for dismissing the application on the ground that there was no allegation or evidence of a substantial change in relevant circumstances since the order was issued or last varied.
On 18 June 2020 Mr Groom filed in the Supreme Court of notice of appeal against the dismissal of his revocation application. This is the tenth proceeding that the Attorney-General contends was instituted without reasonable ground.
On 13 August 2020 Lovell J heard the appeal.
On 11 September 2020 Lovell J delivered reasons for judgment refusing permission to appeal.[13]
[13] Groom v Police [2020] SASC 167.
On 20 October 2020 Mr Groom filed in the Supreme Court a notice of appeal appealing and seeking leave to appeal against the judgment of Lovell J. This is the eleventh proceeding that the Attorney-General contends was instituted without reasonable ground.
The Court of Appeal heard the application for leave to appeal in private in accordance with the usual practice.
On 22 January 2021 the Court of Appeal delivered reasons for judgment dismissing the application for leave to appeal.[14]
[14] Groom v Police [2021] SASCA 1.
Mr Groom sought special leave to appeal to the High Court against the judgment of the Full Court.
On 17 June 2021 Keane and Edelman JJ dismissed Mr Groom’s application for special leave to appeal.[15]
[15] Groom v Police [2021] HCASL 102.
Vexatious litigant application
On 23 September 2021 the Attorney-General instituted this proceeding by originating application.
On 3 March 2022 Mr Groom filed an interlocutory application seeking a stay of the Attorney-General’s application and 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.
On 3 March 2022 Mr Groom filed an affidavit sworn by him on that date in support of his interlocutory application.
On 26 May 2022 it was ordered that Mr Groom’s interlocutory application be heard together with the trial of the matter.
On 4 July 2022 Mr Groom filed a further affidavit sworn on that date in support of his interlocutory application filed on 3 March 2022.
The trial
At the commencement of the trial, I heard Mr Groom’s interlocutory application insofar as he sought a stay of the proceeding (paragraph 1). I gave ex tempore reasons for dismissing the application.
The balance of Mr Groom’s interlocutory application (paragraphs 2 to 6) sought declaratory relief. Declarations cannot be granted on an interlocutory application but only in a substantive action. It was agreed by the parties that paragraphs 2 to 6 of Mr Groom’s interlocutory application should be treated as a cross action by Mr Groom against the Attorney-General. I made an order by consent to that effect.

The Attorney-General contends that the cross action is itself a vexatious proceeding.
The Attorney-General tendered all but one page of the tender book. Both parties tendered various other documents. In general terms, the documents tendered comprised documents filed in and reasons for judgment in the underlying proceedings.
In addition, the Magistrates Court file for the intervention order proceeding was tendered.
The vexations litigant regime
Section 39 of the Supreme Court Act provides:
39—Vexatious proceedings
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)     an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b)     an order staying proceedings already instituted by that person.
(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3)     An order under this section remains in force (subject to variation by the court)—
(a)     if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs);
(b)     if no such period is fixed—until revocation of the order.
(4)Where an order is made under this section, a copy of the order must be published in the Gazette.
(5)     For the purposes of this section, proceedings are vexatious—
(a)     if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b)     if instituted without reasonable ground.
(6)     In this section—
prescribed court means—
(a)     the Supreme Court; or
(b)     any other court of the State; or
(c)     the South Australian Employment Tribunal; and
(d)     any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
An applicant for an order under section 39 is required to establish five elements to enliven the Supreme Court’s discretion to make a prohibition order under subsection 39(1):
1 the applicant has standing, being either the Attorney-General or a interested person;
2      applications have been made in a prescribed court;
3      such applications comprise proceedings instituted by the respondent;
4      such proceedings were instituted vexatiously being:
(a)    without reasonable ground; and/or
(b)    for an ulterior purpose;
5      such vexatious proceedings have been instituted persistently.
Standing
The application is brought by the Attorney-General, who has standing.
Prescribed courts
The underlying applications were made in the Supreme Court of South Australia and the Magistrates Court of South Australia. They are both clearly prescribed courts under and for the purpose of section 39.
Institute proceedings
Subsection 39(1) refers to a person who has “instituted … proceedings”. This is a composite concept in which the root words “institute” and “proceeding” give colour and meaning to each other.
The term “proceeding” is not effectively defined. By contrast, subsection 5(1) defines a “cause” to include:
… any action, suit, or other original proceeding between a plaintiff and a defendant …
and “matter” to include:
… every proceeding in the court not in a cause …
This indicates that a proceeding is a broader concept that an action or suit.
The Act uses the term “proceeding” in numerous provisions in different contexts and for different purposes. The word “proceeding” is protean. It is sometimes used to denote the process within the court which is the vehicle for a binding and authoritative decision of a controversy between subjects or between a subject and the Crown.[16] It is sometimes used more broadly to denote any application for an order or direction by a court (whether interlocutory or final, at first instance or on appeal).
[16] Borrowing from the words of Deane, Dawson, Gaudron and McHugh JJ in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267-268 when discussing the concept of judicial power.
The rationale of section 39 is to regulate the commencement and prosecution in future of proceedings by a person who is found to have instituted vexatious proceedings in the past. The form of the regulation is not to prohibit absolutely the future institution of proceedings, but to require the permission of the Court before institution, thereby imposing an obligation on the litigant to demonstrate that the proposed proceeding has merit and is not motivated by an ulterior purpose.
The manifest purpose of section 39 is to enable the protection of courts against unjustified use of their time and resources and protection of opposing litigants against incurring time and cost in defending applications without merit or made for an improper purpose.
Insofar as the section refers to past proceedings, its context and purpose suggest a broad meaning of the word “proceeding” to enable the Court to make a full assessment whether the defendant is a vexatious litigant having regard to previous applications made to a court.
Insofar as the section refers to future proceedings and imposes, when an order has been made, a hurdle of permission before their institution, the position is more nuanced. On the one hand, the section’s purpose would be frustrated if an unduly narrow interpretation applied to “proceedings” because applications not characterised as proceedings could be brought without the need for any prior permission of the Court or demonstration that they have merit. This would leave unremedied the mischief to which the section is addressed, namely the potential wastage of the time and resources of courts and opponents. On the other hand, it would be unduly cumbersome if a person declared under the section to be a vexatious litigant were required to seek permission before making every interlocutory application in a proceeding, however limited or procedural, in which the person is a party. It is unlikely that the legislature intended such a result.
In determining whether a particular type of application falls within the concept of a “proceeding” within the meaning of section 39, given the use of that term in the section, the question ought to be assessed as a matter of substance rather than form or the name applied to the particular type of application.[17]
[17] Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 per Yeldham J; Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 491-492 per Roden J.
The following general principles can be derived from the wording, context and evident purpose of section 39:
1An action in which a party seeks a final determination of a justiciable issue or the exercise of any like power vested in the court (whether by way of action, cross action or third party action) is a “proceeding”.[18]
2An appeal from a judgment or order is a separate “proceeding” to the original application in respect of which the judgment or order was made (whether the appeal is to a different court or to the same court in which the original judgment or order was made).[19]
3An application to set aside a judgment or order which is substantively similar to an appeal should be treated in the same way as an appeal against the judgment or order would be treated.[20]
4An application that is interlocutory in nature relating to a matter incidental to the proceeding as opposed to substantive rights is generally not a “proceeding”.[21]
5Even though an interlocutory application of the type referred to in 4 above is not a “proceeding”, nevertheless an appeal from (or application to set aside) an order on such an interlocutory application is a “proceeding”.
[18] This is essentially the concept embodied in the definition of “action” in rule 2.1(1) of the Uniform Civil Rules 2020 (SA).
[19] See Inre Becker [1975] 1 WLR 842 at 845 per Eveleigh J (Bridge and Wien JJ agreeing); Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 per Yeldham J.
[20] See Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 per Yeldham J.
[21] See Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488 per Yeldham J.
In general terms, the verb “institute” when used in relation to a proceeding is ambiguous. Sometimes it refers only to the commencement of a proceeding without encompassing its further prosecution. On other occasions, it encompasses the commencement and prosecution of the proceeding.[22]
[22] Akin to the concept of “bringing” proceedings in r 81(1) of the Supreme Court Civil Rules 2006 (SA): see Visic v Proude [2013] SASCFC 62, (2013) 116 SASR 404 at [53] per Stanley J (with whom White J and Peek J agreed).
A matter may be begun on reasonable ground but as a result of subsequent developments become a proceeding without reasonable ground. Conversely, a matter may be begun without reasonable ground but as a result of subsequent developments become one for which there is reasonable ground.
As observed above, the evident purpose of section 39 is to impose a form of control (with the Court acting as gatekeeper) on proceedings in future in circumstances in which a litigant has in the past persistently pursued proceedings which are vexatious.
These considerations suggest that the word “institute” in section 39 is used in its broadest sense to encompass the full gamut of the prosecution of a proceeding from beginning to end.
On this construction, a proceeding has been instituted even if it never reaches final hearing and determination and even if the court ultimately holds that it does not have jurisdiction to grant the relief sought.
The third allegedly vexatious proceeding is the civil action by Mr Groom against the State of South Australia. By commencing and prosecuting that action, Mr Groom instituted a proceeding within the meaning of section 39.
The first, second, fourth, sixth, seventh, tenth and eleventh allegedly vexatious proceedings are appeals by Mr Groom to a single judge or to the Full Court or Court of Appeal of the Supreme Court. By commencing and prosecuting those appeals, Mr Groom instituted a proceeding within the meaning of section 39.
The fifth and ninth allegedly vexatious proceedings are applications pursuant to section 26 of the Intervention Orders Act to revoke the intervention order confirmed on 10 December 2013. If successful, they would have resulted in the revocation of that intervention order. They are substantive proceedings. By commencing and prosecuting those applications, Mr Groom instituted a proceeding within the meaning of section 39.
The eighth allegedly vexatious proceeding is the application by Mr Groom to the Full Court to set aside its previous orders dismissing his appeal against the dismissal of his civil action against the State of South Australia. It was a substantive proceeding. By commencing and prosecuting that application, Mr Groom instituted a proceeding within the meaning of section 39.
Vexatiously
The words “without reasonable ground” suggest that the test under section 39(5)(b) is purely objective: the motive or subjective state of mind of the litigant is irrelevant. This construction is reinforced by the contrast with section 39(5)(a) which focuses upon the litigant’s purpose of the proceeding. This construction is supported by authority.[23]
[23] Compare In re Vernazza [1960] 1 QB 197 at 208 per Ormerod LJ; Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J; Attorney-General (WA) v Michael [1999] WASCA 181 at [126] per Anderson J.
Section 39(5)(b) draws on common law concepts of abuse of process. The wording of section 39(5)(b) corresponds with the criterion for one of the categories of abuse of process, namely that a proceeding has been instituted without reasonable ground.[24]
[24] Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 at 220-221 per Lord Blackburn.
Section 39(5)(a) also draws on common law concepts of abuse of process. The wording of section 39(5)(a) corresponds with the criterion for one of the categories of abuse of process, namely that a proceeding has been instituted for an ulterior purpose.[25]
[25] Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J.
Persistently
The question whether vexatious proceedings have been instituted persistently involves a matter of judgment turning on questions of circumstance and degree.[26] The term “persistently” suggests determination and continuing in the face of difficulty or opposition with a degree of stubbornness.[27]
[26] Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28 at 35 per Perry J.
[27] Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 at 492 per Roden J.
Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted, the extent to which they represent attempts to re-litigate issues already conclusively determined and the extent to which unsubstantiated extravagant or scandalous allegations are made.[28]
The intervention order regime
[28] Brogden v Attorney-General [2001] NZCA 208,[2001] NZAR 809 at [21] per Thomas, Keith and Blanchard JJ.
Domestic Violence Act
The Domestic Violence Act applied up to 8 December 2011.
Subsection 4(1) empowered the Magistrates Court to make a domestic violence restraining order if two conditions were met. It provided:
4—Grounds for making domestic violence restraining orders
(1)On a complaint under this Act, the Court may make a domestic violence restraining order against the defendant if—
(a) there is a reasonable apprehension that the defendant may, unless restrained, commit domestic violence; and
(b) the Court is satisfied that the making of the order is appropriate in the circumstances.
Subsection 4(2) defined domestic violence for the purpose of the Act. It provided:
(2)For the purposes of this Act, a defendant commits domestic violence—
(a)     if the defendant causes personal injury to a member of the defendant's family; or
(b)     if the defendant causes damage to property of a member of the defendant's family; or
(c)if on two or more separate occasions—
(i)the defendant follows a family member; or
(ii) the defendant loiters outside the place of residence of a family member or some other place frequented by a family member; or
(iii)the defendant enters or interferes with property occupied by, or in the possession of, a family member; or
(iv)    the defendant—
(A)gives or sends offensive material to a family member or leaves offensive material where it will be found by, given to, or brought to the attention of a family member; or
(B)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a family member; or
(iva)the defendant communicates with a family member, or to others about a family member, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(v)     the defendant keeps a family member under surveillance; or
(vi)    the defendant engages in other conduct,
so as to reasonably arouse in a family member apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
Subsection 7(1) gave standing to make a complaint to a police officer or person the subject of the impugned behaviour. It provided:
7—Complaints
(1)     A complaint may be made—
(a)     by a member of the police force; or
(b)     by a person against whom, or against whose property, the behaviour that forms the subject matter of the complaint has been, or may be, directed.
Subsection 9(1) provided for the making of an inter partes domestic violence restraining order after service on the defendant (with or without the defendant’s attendance).
Subsection 9(2) provided for the making of an ex parte domestic violence restraining order without notice to the defendant (an interim order) but required that the defendant then be summoned to show cause why the order should not be confirmed.
Subsections 9(4) and (5) empowered the Court to adjourn the hearing from time to time to enable service of the summons or for other adequate reason but provided that an adjournment was not to exceed seven days unless the Court was satisfied that a later date was required to enable the summons to be served or there was other adequate reason for fixing a later date.
Subsection 9(6) provided that an interim order continued in force until the conclusion of any adjourned hearings but was not effective thereafter unless confirmed.
Subsections 9(2) and (4) to (6) provided:
9—Issue of domestic violence restraining order in absence of defendant
…
(2)A domestic violence restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
…
(4)The Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment.
(5)The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Court is satisfied—
(a)     that a later date is required to enable the summons to be served; or
(b)     that there is other adequate reason for fixing a later date.
(6)     A domestic violence restraining order made under subsection (2) —
(a)     continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing; but
(b)     will not be effective after the conclusion of the hearing to which the defendant is summoned, or the adjourned hearing, unless the Court confirms the order—
(i)on failure of the defendant to appear at the hearing in obedience to the summons; or
(ii)having considered any evidence given by or on behalf of the defendant; or
(iii)with the consent of the defendant.
Intervention Orders Act
The Intervention Orders Act has applied since 9 December 2011. In very broad terms, it expanded the scope of restraining orders (now called intervention orders) beyond domestic violence to non-domestic violence; re-defined domestic violence (now called an act of abuse); provided for all court proceedings to proceed initially by way of ex parte application for an interim order; and empowered police officers to make interim orders.
The Act is described below in the form that it took when first enacted. It has been amended in various respects since then.
Section 6 empowered the Magistrates Court to make an intervention order if two conditions were met. Those conditions were essentially the same as under subsection 4(1) of the Domestic Violence Act (substituting act of abuse for domestic violence). Section 6 provided:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b) the issuing of the order is appropriate in the circumstances.

An act of abuse was defined in broader and more generic terms than domestic violence was defined in the Domestic Violence Act. Subsection 8(2) provided:
(2)An act is an act of abuse against a person if it results in or is intended to result in—
(a)physical injury; or
(b)emotional or psychological harm; or
(c) an unreasonable and non‑consensual denial of financial, social or personal autonomy; or
(d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
Subsection 8(3) provided:
(3)Emotional or psychological harm includes—
(a)mental illness; and
(b)nervous shock; and
(c)distress, anxiety, or fear, that is more than trivial.
Subsection 8(4) provided 16 non-exhaustive examples of emotional or psychological harm. Subsection 8(5) provided nine non-exhaustive examples of unreasonable and non-consensual denials.
Subsection 8(1) provided:
(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
Section 11 provided that an intervention order continues in force until revoked.
11—Ongoing effect of intervention order
(1)An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under this Act) until it is revoked.
(2)Consequently, an issuing authority may not fix a date for the expiry of an intervention order or otherwise limit the duration of an intervention order.
Section 21 empowered the Court to make an interim intervention order in a similar manner to subsection 9(2) of the Domestic Violence Act.
Section 22 addressed adjournments in a similar manner to subsections 9(4) and (5) of the Domestic Violence Act (increasing seven days to eight days). It relevantly provided:
22—Adjournments
(1)The Court may, from time to time without requiring the attendance of any party, adjourn the hearing of an application for an intervention order at which a defendant is required by an interim intervention order to appear to a later date if satisfied that the interim intervention order has not been served or that there is other adequate reason for the adjournment.
(2)The date fixed for an adjourned hearing must be within 8 days after the date on which the adjournment is ordered, unless the Court is satisfied—
(a) that a later date is required to enable the interim intervention order to be served; or
(b)that there is other adequate reason for fixing a later date.
Section 23 addressed the making of a final intervention order. Subsection 23(3) provided for the making of a final intervention order by consent in a similar manner to subsection 4(4) of the Domestic Violence Act. It provided:
(3)If a defendant disputes some or all of the grounds on which an intervention order is sought but consents to the order, the Court may confirm or issue the order without receiving any further submissions or evidence as to the grounds.
Section 26 empowered the Court to vary or revoke an intervention order. It relevantly provided:
26—Intervention orders
(1)The Court may vary or revoke an intervention order on application by—
(a)a police officer; or
(b)     a person protected by the order or a suitable representative of such a person given permission to apply by the Court; or
…
(d)the defendant.
…
(3)An application for variation or revocation of an intervention order (other than an interim intervention order) may only be made by the defendant after the date fixed by the order.
(4)On an application for variation or revocation of an intervention order (other than an interim intervention order) by the defendant, the Court may, without receiving submissions or evidence from the protected person, dismiss the application—
(a)if satisfied that the application is frivolous or vexatious; or
(b)     if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
(5)The Court must, before varying or revoking an intervention order under this section—
(a)     allow the defendant and each person protected by the order a reasonable opportunity to be heard on the matter; and
(b)     have regard to the same matters that the Court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order.
The cross action
By the cross action, Mr Groom seeks the following orders:
2A Declaration at Law that the Interim Domestic Violence order … issued under the Domestic Violence Act 1994 s 9 on the 19^th October 2011 be declared invalid and null and void.
3That at the hearing of the first return of the application … on the 26^th October 2011 the Magistrate made an “Error of Law” by failing to enforce s 9(3)[a] [b] and s 9(5) and (6) of the Domestic Violence Act 1994.
4A declaration that to ensure compliance, with s 9(6) of the DV Act the application for the Interim Domestic violence Order issued on the 19^th October 2011 by a Magistrate lapsed under both Common Law and under Statute as no trial occurred, and the order was not confirmed, at the hearing to which the defendant was summonsed on the 26^th October 2011 (see certificate of record).
5A further declaration that the as from 26^th October 2011 no valid order existed and all of consequential proceedings were without Lawful Authority.
6A declaration that the vexatious application CIV-21-010913 was invalidly commenced, because of 5 above.
Validity of 19 October order
The initial, interim, domestic violence restraining order was made on 19 October 2011.
Mr Groom contends that this order was invalid because there is no original version of the complaint on the Magistrates Court file.
The Magistrates Court file contains a Form 37 Complaint (Domestic Violence Restraining Order) which has a hole cutout in the top left-hand corner (the Complaint). Mr Groom contends that the Complaint is a photocopy of an original document. He contends that, if the original Complaint was not filed at the Magistrates Court on 19 October 2011 before the interim order was made, the interim order was invalid.
Mr Groom acknowledges that section 8 of the Domestic Violence Act empowers the making of a complaint by telephone and hearing of an application for an interim order by telephone but contends that, in that event, the complainant is required to file a written complaint. On the one hand, there is nothing in section 8 or elsewhere in the Domestic Violence Act that requires the filing of a written complaint when complaint is made by telephone. On the other hand, it is apparent from the Magistrates Court file that there was no ground for making a telephone complaint under section 8 and this did not occur. Telephone complaints can therefore be ignored.
Mr Groom bears the onus of proof on his cross action. He has failed to prove that the Complaint is a photocopy and is not the original document. The Complaint bears a Magistrates Court official stamp on the second page, which contains the date (“19 OCT 2011”), the word “RECEIVED” and the Magistrates Court of South Australia circular logo. The stamp appears to be an original stamp or at least is not obviously a copy. The stamp is identical to the received stamp that appears on Ms Aitken’s affidavit, which itself appears to be an original document.
The Complaint bears Mr Bradfield’s name, signature and date. There is nothing on the document that indicates that the Complaint is not the document dated and signed by Mr Bradfield.
The Complaint contains at the top of the first page in hand writing the words “CRT COPY”, which evidently stand for “Court copy”. This appears to be in contradistinction to a party copy which may have been given to the Police when the Complaint was filed.
There is also on the Magistrates Court file what is evidently a photocopy of the Complaint. A circular mark is on the photocopy in the same place as the circular cutout appears on the Complaint. It appears that “original” documents were at one stage kept on a spike on the Magistrates Court file, which is why they contain circular cutouts. There are other documents on the file which are photocopies that contain circular marks.
Even if the Complaint comprised a photocopy, it does not follow that the original document was not originally filed on 19 October 2011 and has now been misplaced. Because there have been various appeals in relation to the intervention order proceeding, documents have been extracted from the file at various times to provide copies to the appellate courts.
Even if the document that was filed by the Police on 19 October 2011 was a photocopy of the document that was dated and signed by Mr Bradfield, it does not follow that it was invalid. Although section 7 of the Domestic Violence Act required a complaint to be made, it did not require an original, as opposed to a photocopy of it, to be filed. There is nothing in the Domestic Violence Act that would render a domestic violence order invalid merely because the complaint filed at the Court is a photocopy.
Mr Groom’s contention that the interim order made on 19 October 2011 is invalid fails.
Mr Groom says that he is confused as to whether the complaint seeking a domestic violence order was made by a police officer or by Ms Aitken. He does not submit that the reason for his confusion gives rise to invalidity of the interim order. However, I address this issue for completeness.
It is clear on the face of the Complaint that it was made by Mr Bradfield. The name of the complainant is shown at the top of the form as “THE UNDERSIGNED MEMBER OF THE POLICE FORCE”. Mr Bradfield’s name and signature appear at the end of the form. Subsequent documents filed in the action show “Police” as the party other than Mr Groom. Indeed, Mr Groom’s notices of appeal against orders made in the intervention order proceeding all show “Police” as the other party.
It is true that Ms Aitken’s affidavit was drafted on the assumption that she would be the complainant. But her affidavit predates the Complaint by five days. It is evident that by 19 October 2011 the Police had decided that they would apply for the domestic violence restraining order.
Mr Groom contends that the grounds of the application for a domestic violence restraining order cannot be discerned from the Complaint and this ultimately prevented him from demonstrating that circumstances had changed when he subsequently applied to revoke the intervention order. Although Mr Groom does not contend that this rendered the interim order, or the ultimate intervention order, invalid, I address it for the sake of completeness.
The Domestic Violence Act did not require the grounds for the application to be set out in the complaint. Subsection 9(3) contemplated the filing of an affidavit and it is in the affidavit that it may be expected that the grounds of the application would be set out.
In the case of the complaint filed on 19 October 2011, the grounds of the application are set out in Ms Aitken’s affidavit dated 14 October 2011. Ms Aitken in her affidavit set out at paragraph 5 grounds of the application. They included causing personal injury to Ms Aitken; causing damage to her property; and on two or more occasions following her, watching her and loitering outside where she was so as to reasonably arouse significant apprehension or fear. This corresponded with the definition of domestic violence contained in subsection 4(2) of the Domestic Violence Act reproduced above. Ms Aitken went on in subsequent paragraphs of her affidavit to describe the specific conduct of Mr Groom alleged to comprise such domestic violence. If Ms Aitken’s evidence were accepted, Mr Groom’s conduct amounted to domestic violence within the meaning of the Domestic Violence Act.
Mr Groom contends that two or more acts of domestic violence were required for the Court to make a domestic violence restraining order. Implicitly, he contends that two or more such acts were not alleged against him. Again, he does not contend that this rendered the interim order, or the ultimate intervention order, invalid but I address it for the sake of completeness.
It is not correct that two or more acts of domestic violence were required before the Court could make a domestic violence restraining order. First, if a defendant caused physical injury to, or damage to property of, a family member, a single such act was sufficient to comprise domestic violence under section 4(2)(a) or (b). Secondly, under section 4(1)(a), the Court had power to make a domestic violence order if there was a reasonable apprehension that the defendant may unless restrained commit domestic violence: it was not necessary that the defendant had actually committed any act of domestic violence provided that there was a reasonable apprehension that the defendant would do so in future.
The interim order made on 19 October 2011 was not invalid by reason of any of the matters raised by Mr Groom.
Validity of 26 October order
On 26 October 2011 Magistrate O’Connor adjourned the hearing to a pre-trial conference on 16 December 2011. The period of the adjournment was just over seven weeks, which is obviously more than seven days.
Mr Groom contends that the adjournment order was invalid because it does not appear on the face of the order for the adjournment that there was “adequate reason” within the meaning of section 9(5)(b) of the Domestic Violence Act to adjourn the hearing for more than seven days.
There was no requirement within section 9 or any other provision of the Domestic Violence Act that, when a Magistrate adjourned a hearing for more than seven days, the Magistrate must record the reason for adjourning the hearing for more than seven days. Accordingly, the mere fact that the reason for the adjournment is not recorded does not result in the adjournment order being invalid.
Mr Groom bears the onus of proof that there was not adequate reason for adjourning the hearing for more than seven days or until 16 December 2011. He has failed to prove that there was not such an adequate reason. On the contrary, there is a presumption of regularity that the Magistrate would not have adjourned the hearing for seven weeks unless there was adequate reason to do so.
In theory, there might be at least three types of reasons for a Magistrate to adjourn a hearing for more than seven days. First, the defendant may seek an adjournment for a longer period to prepare the matter, to seek to negotiate a resolution of the matter, to suit their availability or for any other reason. Secondly, the complainant may seek an adjournment for a longer period for similar purposes. Thirdly, the Court lists might be such that the Court cannot accommodate an earlier hearing.
In the present case, all that is known is that Mr Groom says that he attended, together with a witness, at the hearing on 26 October 2011 and was ready to proceed with a substantive hearing. However, the Magistrate said that the matter would not proceed on that day. It is otherwise not known why the Magistrate adjourned the matter for seven weeks.
In these circumstances, Mr Groom has failed to prove that the Magistrate adjourned the matter for more than seven days without adequate reason to do so.
Even if there were not adequate reason for the Magistrate to have adjourned the matter for more than seven days, it does not follow that the adjournment order was invalid. This involves a question of the proper construction of section 9 of the Domestic Violence Act.
In Project Blue Sky Inc v Australian Broadcasting Authority[29] McHugh, Gummow, Kirby and Hayne JJ said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[30]
[29] [1998] HCA 28, (1998) 194 CLR 355.
[30] At [91].
Section 9 of the Domestic Violence Act does not expressly provide that an order for an adjournment for more than seven days when there is not adequate reason to do so is invalid. An adjournment order is a procedural order. It can be contrasted with a substantive order such as an order restraining a person from engaging in defined conduct. It is an unlikely intention to attribute to the legislature that it intended that an adjournment order be invalid if there is not adequate reason for the length of the adjournment.
Further, the question whether a reason for adjourning a hearing for more than seven days is “adequate” involves an evaluative judgment on which different minds might differ. If an adjournment order is invalid and if it is ultimately determined by an authoritative court that the reason for the adjournment was not adequate, there would be great uncertainty about the validity of all adjournments for more than seven days. It could not be determined whether the adjournment order was valid until an authoritative court (including on appeal) had determined whether the reason was adequate. It is extremely unlikely that the legislature intended to create such uncertainty.
In addition, rendering the adjournment order invalid, with the consequence that an interim domestic violence restraining order ceases to have effect, would operate to the disadvantage of the protected person. This would be contrary to the object of the Act of protecting family members from violence.
On the proper construction of the Act, an order for an adjournment for more than seven days without adequate reason does not render the adjournment order invalid. As the adjournment order remains valid, an interim domestic violence restraining order does not cease to have effect pursuant to subsection 9(6) at the conclusion of the hearing at which the adjournment order is made even if the adjournment is for more than seven days without adequate reason.
The adjournment order made on 26 October 2011 was a valid order. The interim order did not cease to have effect on 26 October 2011.
Mr Groom contends that the adjournment order made on 16 December 2011 listing the matter for trial on 22 February 2012 was made without adequate reason and was invalid. I reject that contention for the same reasons as in respect of the adjournment order made on 26 October 2011.
Mr Groom’s contention that the interim order ceased to have effect on 26 October 2011 or any subsequent date fails.
Consequential effect on subsequent proceedings
If the interim order had been invalid, or had lapsed on 26 October 2011, I accept that there would have been no interim order to be confirmed and hence there would have been no extant intervention order. However, the premises for this consequence are not established for the reasons given above.
Even if the premises were established, it would not follow, as Mr Groom contends, that all consequential proceedings were without lawful authority. Each of the proceedings instituted by Mr Groom from 6 January 2014 onwards alleged by the Attorney General to be vexatious were valid proceedings. If they were in fact commenced without reasonable ground or for an ulterior purpose, they were vexatious proceedings for the purposes of section 39 of the Supreme Court Act even if the interim order had been invalid or ceased to have effect on 26 October 2011.
Consequential effect on Attorney General’s application
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 order
Appeal 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)
I agree with Kelly J, for the reasons given by her Honour, that Mr Groom’s first set of grounds were without foundation. Insofar as the appeal was instituted relying on the first set of grounds, it was instituted without reasonable ground.
Secondly, Mr Groom contended that, because all of the criminal charges were withdrawn, there was no basis for the confirmation of the interim order as no risk assessment had been provided. That contention was misconceived for two reasons. First, the charges related to alleged conduct by Mr Groom after making of the interim order; whereas the interim order relied on alleged conduct by Mr Groom before the making of the interim order. The fact that the charges were withdrawn did not deprive the interim order of its basis. Secondly, when a defendant consents to confirmation of an interim order under section 23(3) of the Intervention Orders Act, that provision expressly provides that the Court may confirm the order “without receiving any further submissions or evidence as to the grounds” and despite the fact that the defendant disputes some or all of the grounds on which the intervention order is sought. Insofar as the appeal was instituted relying on this ground, it was instituted without reasonable ground.
Thirdly, Mr Groom contended that the interim domestic violence restraining order had expired on its two year anniversary on 19 October 2013 and hence there was no interim order available to be confirmed.
Kelly J rejected this contention in the following terms:
The appellant’s next contention that the interim restraining order had expired by 10 December 2013 can be dealt with briefly. On 10 December 2013 the appellant was the subject of an interim intervention order which had originally been made on 19 October 2011 set to expire two years later on 19 October 2013. However, the Domestic Violence Act was repealed on 9 December 2012 by virtue of which the order continued in force as if it were an interim intervention order under the Act. That Act specifically provides that an intervention order is ongoing and continues in force until and unless revoked.[32]
[32] Groom v Police [2014] SASC 41 at [25]. (Footnotes omitted)
I agree with Kelly J for the reasons given by her Honour that Mr Groom’s contention was misconceived. Insofar as the appeal was instituted relying on this ground, it was instituted without reasonable ground.
Fourthly, Mr Groom contended that in June 2013 he had made an application for revocation of the interim order because more than 12 months had passed since it was made and his application was refused by the Magistrate because there was an appeal on foot regarding confirmation of the order.
Kelly J rejected this contention in the following terms:
This complaint does not appear to raise any intelligible ground of appeal. Insofar as I could understand it, it relates to a previous application made by the appellant in June 2013 to have the intervention order revoked and to obtain a remission for fees. During the hearing on 10 December 2013, the Magistrate having regard to the appellant’s consent on that date to confirmation of the order, merely recorded that the appellant’s pre-existing application to revoke the order, together with his application for remission of the filing fees, was withdrawn. Insofar as the appellant persists with that complaint, it is irrelevant, in light of the appellant’s plain consent to the confirmation order made on 10 December 2013.[33]
[33] Groom v Police [2014] SASC 41 at [27].
I agree with Kelly J for the reasons given by her Honour that Mr Groom’s contention was misconceived. Mr Groom did not appeal against the order of the Magistrate relating to the withdrawal or dismissal of his revocation application and in any event it was superseded by confirmation of the interim order. Insofar as the appeal was instituted relying on this ground, it was instituted without reasonable ground.
Fifthly, Mr Groom contended that the police prosecution, the family violence unit and the Office of the Director of Public Prosecutions were aware of abusive conduct and violation of the restraint order by Ms Aitken and inconsistencies in her evidence but proceeded nevertheless and did nothing to assist Mr Groom under their guidelines or the Magistrates Court Rules. This alleged conduct occurred before confirmation of the interim order in December 2013.
Kelly J rejected this contention in the following terms:
All of the matters raised in respect of proposed ground 9 of the appellant’s application for permission to appeal on the basis of what he described as “special disadvantage” are attempts to re-litigate the grounds on which the intervention order was made. Those matters are now irrelevant by virtue of the appellant’s informed consent to confirmation of the intervention order on 10 December 2013. They may well be relevant at some future stage in relation to any application which might be made to revoke or discharge that order. They are not relevant to the disposition of this appeal. The Magistrate was entitled to confirm the intervention order on 10 December 2013 without receiving any further evidence or submissions as to the grounds on which the interim order was made. The Act permits that course to be taken where the subject of the intervention order gives informed consent to its confirmation.
…
In light of my finding that the appellant did give his informed consent it is no longer necessary to explore any of the evidence before the Court as to the grounds on which the original intervention order was sought.[34]
[34] Groom v Police [2014] SASC 41 at [28], [33].
I agree with Kelly J for the reasons given by her Honour that Mr Groom’s contention was misconceived. As observed above, when a defendant consents to confirmation of an interim order under section 23(3), that provision expressly provides that the Court may confirm the order “without receiving any further submissions or evidence as to the grounds” and despite the fact that the defendant disputes some or all of the grounds on which intervention order is sought. Insofar as the appeal was instituted relying on this ground, it was instituted without reasonable ground.
The appeal was instituted without reasonable ground.
The Attorney-General also contends in the alternative that the appeal was instituted for an ulterior purpose. The Attorney-General relies on the observation by Kelly J reproduced at [171] above that Mr Groom had a deeply felt grievance against Ms Aitken and his perceived injustice of the proceedings against him which was the real basis of his appeal rather than a denial of his procedural rights on 10 December 2013. This is not a finding that Mr Groom instituted the appeal for an ulterior purpose. Rather, it is a finding about his underlying motivation. It is apparent that Mr Groom’s purpose in instituting the appeal was to attempt to overturn the confirmation order, which is not an ulterior purpose. I reject the Attorney-General’s alternative contention that the appeal was instituted for an ulterior purpose.
Appeal against Kelly J’s order
The second proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal, and application for permission to appeal, to the Full Court against Kelly J’s order refusing permission to appeal and dismissing his appeal.
Mr Groom’s notice of appeal contained four grounds of appeal. The first ground of appeal was that the transcript of hearing on 10 December 2013 was not official because it was provided to the Supreme Court by the police prosecution and the Magistrates Court denied that a transcript was ever taken. The second ground of appeal was that a copy of the transcript was not provided to Mr Groom at the time of the appeal hearing before Kelly J. The fourth ground of appeal was that there was a denial of natural justice and miscarriage of justice.
The Full Court heard the application for permission and an extension of time to appeal in private in accordance with the usual practice.
The Full Court addressed the grounds of appeal relating to the transcript in the following terms:
The applicant’s complaints concerning the transcript were not raised before Kelly J. This was despite his claim to have sought the transcript prior to that hearing and despite the judge specifically referring, early in the hearing, to the transcript of 10 December 2013. From that point the applicant was on notice of the use being made of the transcript and had opportunity to raise any concerns about its unavailability to him.
The applicant has not identified precisely how the lack of the transcript has prejudiced him. He was present with his legal representative during the hearing of 10 December 2013 and must have been in a good position to understand what occurred. Indeed, in his presentation before Kelly J he appeared to have no trouble recalling the course of the earlier proceedings.
…
In this application the applicant has focussed upon the fact that he did not have at his disposal a copy of the transcript of the last hearing when the order was confirmed. If he was in fact misled by Registry officials about the availability of the transcript, then that is unfortunate. However, he did not make that complaint before Kelly J notwithstanding that her Honour referred at the outset of the appeal to that very transcript and indicated, though perhaps not expressly, that she was in possession of it.[35]
[35] Groom v Police [2014] SASCFC 125 at [14]-[15], [18] per Vanstone, Peek and Parker JJ.
I agree with the Full Court for the reasons given that Mr Groom’s grounds of appeal concerning the transcript were without reasonable ground.
The third ground of appeal was that Kelly J, in finding that Mr Groom agreed to confirmation of the interim order, failed to take into account the legality of the placement of the order in the Magistrates Court. In his summary of argument before the Full Court, Mr Groom effectively repeated the contentions advanced before Kelly J summarised at [170] and [180] above.
In relation to Mr Groom’s contention that his consent to the confirmation of the interim order was vitiated, the Full Court said:
The appellant further argues that his application before Kelly J should have succeeded for the very same reasons that Sulan J allowed the earlier appeal. He puts that he was “placed in a position of weakness due to not being advised correctly of his options and having no evidence to support his application to have the order heard in the court, had agreed to the confirmation”.
In her reasons for judgment, Kelly J dealt with the marked difference between the two occasions when the appellant consented to confirmation of the order. Her Honour observed that:
24 On [the first occasion] 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.
…
The differences between the arguments before Kelly J as opposed to those which persuaded Sulan J to set aside the earlier order are stark. It is unnecessary to add to the observations on this point made by Kelly J.[36]
[36] Groom v Police [2014] SASCFC 125 at [11]-[12], [16] per Vanstone, Peek and Parker JJ.
I agree, for the reasons given above, that Mr Groom’s contention that his consent to the confirmation was vitiated was misconceived.
In relation to the conduct of the police and the prosecuting authorities, the Full Court said:
Other complaints encompassed in his draft notice of appeal and summary of argument are in essence restatements of points previously agitated before Kelly J; for example, complaints about the conduct of members of the police prosecution service throughout the intervention order proceedings.
…
The balance of the applicant’s complaints are rehearsals of arguments made before Kelly J.
Recitation of the background against which this application is brought tends to indicate that it is without merit. The applicant has now been present in the Magistrates Court on two separate occasions when the intervention order has been confirmed with his apparent consent.[37]
[37] Groom v Police [2014] SASCFC 125 at [13], [17]-[18] per Vanstone, Peek and Parker JJ.
I agree, for the reasons given above, that Mr Groom’s contention concerning the conduct of the police and prosecuting authorities before confirmation of the interim order was misconceived.

The fourth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal to the Full Court against the dismissal by Judge Dart of his civil action against the State of South Australia for damages.
The appeal raised the same issues as were raised on the State’s application for summary judgment in the civil action. Mr Groom did not have reasonably arguable grounds of appeal. The appeal was instituted without reasonable ground.
Application to the Full Court to reopen appeal
The eighth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s application filed on 11 October 2017 seeking that the judgment of the Full Court be set aside under rule 242 of the Rules on the ground that there had been a miscarriage of justice.
Mr Groom’s application was supported by an affidavit sworn by him on 10 October 2017. In the affidavit he said that he inspected the Magistrates Court intervention order file on 30 May 2017 and found that “there was no evidence on file to support the original application for the DVO (no evidence in chief)”. He contended that it followed that there could have been no lawful authority for the charges and incarcerations placed against him. He contended that it followed in turn that there could be no defence to his claim for damages against the State.
Mr Groom did not say in his affidavit that he had not been served with Ms Aitken’s affidavit in October 2011 (indeed, in his subsequent affidavit sworn on 27 April 2020 he admitted that he had been served with Ms Aitken’s affidavit in October 2011). He did not explicitly state that there was no affidavit by Ms Aitken on the Court file on 30 May 2017 when he inspected it. However, at the hearing before the Full Court on 31 October 2017 Mr Groom was shown the court file by the Court and at that stage Ms Aitken’s affidavit was contained within the file.
The Full Court dismissed Mr Groom’s application to reopen the appeal. The Full Court said:
Mr Groom’s application pursuant to SCR 242 was brought on before this Court on 31 October 2017. On that occasion the Magistrates Court file (the Court file) with respect to the intervention order was before the Court and was shown to Mr Groom and counsel for the State.
The Court file contains a complaint laid before the Magistrates Court in writing by Steven Bradfield, a member of the police force, and an affidavit of Miss Aitken sworn on 14 October 2011 which in general terms supported the making of an intervention order pursuant to s 4 of the DV Act.
At the time, s 7 of the DV Act provided that complaints may be made by a member of the police force or by a person against whom the behaviour that forms the subject matter of the complaint has been, or may be, directed. ... Section 9(3) of the DV Act provided that the Court may make an order on the basis of evidence received in the form of an affidavit on condition that the deponent appear personally at the proceedings for confirmation of the order to give oral evidence if a defendant so required. Section 9(6) of the DV Act continues an order so made in the absence of the defendant until the conclusion of the hearing to which the defendant is summoned or any adjourned hearing.
…
We understand Mr Groom’s complaint to be that when the application for a restraining order came before the Magistrate in 2011 oral evidence should have been taken from Miss Aitken. Mr Groom’s application conflates the operation of the DV Act and the IO Act. The DV Act made no provision for an interim restraining order to be made by the executive or ministerial act of the police officer. A restraining order, including an interim restraining order, could only be made by the Magistrates Court on which application the Court could act on affidavit evidence. That is what happened in this case. The procedures envisaged by the IO Act and, the Rules with respect thereto made by the Magistrates Court, are applicable to those cases where an interim order is made by a police officer. Accordingly there is, as Mr Groom has asserted, no transcript of any evidence-in-chief given by Miss Aitken in the Magistrates Court file on the occasion that the interim order was made. There was no need for any such examination.
For the above reasons there is … no reason to reopen the judgment of the Full Court in the civil proceedings. Moreover, the summary dismissal of Mr Groom’s civil action was made on grounds largely unconnected to the status of the intervention order. The civil proceedings were dismissed because there was no reasonable basis for Mr Groom’s claims that:
·    SAPOL and the DPP owed him a duty of care;
·    he had suffered any harm as a result of the conduct alleged on the part of the Department of Correctional Services (DCS) or that that conduct impaired his capacity to defend himself in the legal proceeding related to the intervention order;
·    the Magistrate’s orders were actionable;
·    he was unlawfully imprisoned because his imprisonment was pursuant to an order of a court;
·    he was a victim of malicious prosecution because material facts supporting his claim had been pleaded.
The grounds on which Mr Groom relies in both applications are unarguable.[50]
[50] Groom v Police; Groom v State of South Australia [2017] SASCFC 161 at [19]-[21], [33]-[35] per Kourakis CJ, Nicholson and Hinton JJ.
Mr Groom’s application to reopen the appeal was instituted without reasonable ground for the reasons given by the Full Court.
First revocation proceedings
Revocation application
The fifth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s 2016 application in the Magistrates Court to revoke the intervention order under section 26 of the Intervention Orders Act.
The application was based on contentions that the interim order should not have been made in October 2011 and the interim order should not have been confirmed in December 2013.
Magistrate Grasso dismissed the revocation application. He said:
In relation to the application I note the order was confirmed by consent and that on the day that it was confirmed the defendant had legal representation. In para. 18 of his affidavit, previously referred to by me, he said that he “misconceived the true nature, import and effect of what was happening around him and believed that the withdrawal of the 31 alleged breaches that he faced on that day effectively exonerated him”. He says this has proven to be a mistake and detrimental to him.
It seems to me that he is basing his application today on what he calls false evidence and bad procedures adopted by the police in the lead up to the taking out of the application and the confirmation of the order.
Sergeant Fulcher points out that s.26(4) of the Intervention Orders Prevention of Abuse Act 2009 states that on an application by the defendant such as Mr Groom to revoke the Intervention Order the court can dismiss the application without receiving submissions from the protected person…
Importantly the Act requires that there be a substantial change in relevant circumstances since the order was issued or last varied before an application to revoke should be considered. In my view all the matters that he raises refer to matters that occurred prior to the confirmation and up to the date of the confirmation of the order. … and so I dismiss his application for consideration of the revocation of the order.
On appeal, Vanstone J refused permission to appeal, saying:
A consideration of the material before the Magistrate establishes that, leaving aside the allegation of bias, the applicant’s real complaint is that the intervention order should never have been made. He alleges that there were irregularities in the way it came to court. The difficulty with that contention is that on 10 December 2013 the applicant appeared before a Magistrate on an application by the protected person to confirm the intervention order and also in relation to 31 charges, including 12 counts of contravening a condition of the intervention order and six counts of breaching a domestic violence restraining order and one count of aggravated assault. On that day the court was told that all the charges would be discontinued on the basis that the applicant would agree to the confirmation of the intervention order. That is what took place. Subsequently a single Judge of this Court refused the applicant permission to appeal against that confirmation and the Full Court of this Court refused permission to appeal from that decision.
…
Having regard to the chronology of events there is now no utility either in Mr Groom making, or in this Court entertaining, allegations that the original order was irregularly obtained.[51]
[51] Groom v Police [2017] SASC 21 at [4], [6].
On further appeal to the Full Court, the Full Court refused permission to appeal, saying:
Vanstone J observed that the material before the Magistrate showed that Mr Groom’s case for revocation was based on the contention that the intervention order should never have been made. Vanstone J correctly observed that there was no utility in an investigation of those matters because Mr Groom had consented to the order and it was affirmed on appeal to this Court. It followed that the Magistrate did not err in failing to investigate the matters of which Mr Groom complained.
Indeed, we observe that insofar as the application to revoke was based on issues finally determined against Mr Groom by the Full Court of this Court, it was an abuse of process.
…
For the above reasons there is no merit in Mr Groom’s application for permission to appeal against the judgment of Vanstone J…[52]
[52] Groom v Police; Groom v State of South Australia [2017] SASCFC 161 at [12]-[13], [34] per Kourakis CJ, Nicholson and Hinton JJ.
Insofar as Mr Groom’s revocation application was based on a contention that the interim order should not have been made, it was misconceived because the making of the interim order was superseded by the confirmation by consent of the interim order for the reasons given by Vanstone J and the Full Court.
Insofar as the revocation application was based on a contention that the confirmation was vitiated, it was not open to Mr Groom to advance that contention (under abuse of process principles) on the revocation application because it had already been decided adversely to him in proceedings between the same parties, namely on the appeal heard by Kelly J and the subsequent appeal to the Full Court.
Given the inevitable failure of those two contentions, it was inevitable that the application would be dismissed in the exercise of the discretion by the Magistrate under section 26(4)(b) of the Intervention Order Act.
The revocation application was instituted without reasonable ground.
Appeal heard by Vanstone J
The sixth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal against the dismissal by Magistrate Grasso of his revocation application.
Some of Mr Groom’s grounds of appeal challenged the decision of Magistrate Grasso on the merits. Insofar as he relied on those grounds of appeal, the appeal was instituted without reasonable ground for the same reasons that the revocation application was instituted without reasonable ground.
Mr Groom also relied on a ground of appeal alleging bias or reasonable apprehension of bias on the part of Magistrate Grasso, who had heard and determined previous proceedings against Mr Groom.
In refusing permission to appeal, Vanstone J rejected this ground of appeal, saying:
For two reasons I find that permission to appeal should not be granted. First, there is no material to support the allegation of actual bias. I note that no application for the Magistrate to disqualify himself was made at the time of the hearing. Nor is there anything in the papers to substantiate the allegation.[53]
[53] Groom v Police [2017] SASC 21 at [13].
In refusing permission to appeal, the Full Court rejected this ground of appeal saying:
Vanstone J dismissed the ground alleging bias because Mr Groom made no application that the Magistrate disqualify himself and because, in any event, there was no material establishing good reason for recusal on the application to revoke the intervention order, whatever reason there might have been for the Magistrate not to sit in the other matter.
…
For the above reasons there is no merit in Mr Groom’s application for permission to appeal against the judgment of Vanstone J…[54]
[54] Groom v Police; Groom v State of South Australia [2017] SASCFC 161 at [14], [34] per Kourakis CJ, Nicholson and Hinton JJ.
Insofar as Mr Groom relied on appeal upon an allegation of bias on the part of Magistrate Grasso, there was no evidence of actual bias and no application to Magistrate Grasso to disqualify himself on the ground of apprehended bias. In those circumstances, the appeal was instituted without reasonable ground.
In conclusion, the appeal was instituted without reasonable ground.
Appeal to the Full Court
The seventh proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal to the Full Court against the judgment of Vanstone J.
This appeal raised the same issues as Mr Groom’s first instance appeal heard by Vanstone J. It was instituted without reasonable ground for the same reasons.
The Attorney-General also contends in the alternative that the appeal was instituted for an ulterior purpose because the Full Court held that, insofar as the application to revoke was based on issues previously determined against Mr Groom, it was an abuse of process. I accept that it was an abuse of process but this does not entail that it was instituted for an ulterior purpose.
Second revocation proceedings
Revocation application
The ninth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s 2020 application in the Magistrates Court to revoke the intervention order under section 26 of the Intervention Orders Act.
In his revocation application, Mr Groom contended that there was no sufficient reason at law for the issuing of the interim order. He said that, as a result of his inspection of the file in May 2017, there was no complaint on the court file; the court file did not show on what grounds the interim order was granted; the court file did not show that he was given the opportunity to place a defence to the allegations made against him at the hearing on 26 October 2011 or at a trial; and the court file did not show that there was any adequate reason for the adjournment of the hearing on 26 October 2011.
In his supporting affidavit sworn on 27 April 2020, Mr Groom also said that he was not served with a brief of the case against him, despite requests that he made of the police prosecution. He said that he inspected the court file in May 2017 and again in 2018 and did not find a complaint, grounds or evidence in chief for the issuing of the interim order. He alleged that the file had been interfered with.
Magistrate Sheppard dismissed the application, saying:
The application is supported by two sworn affidavits in which the applicant claims to have obtained legal advice in relation to having the intervention order removed. In the affidavit dated 27 April 2020, there are two major grounds articulated in support of the application as follows:
That the application and confirmation of the order … on the 19th of October was not conducted correctly under the Domestic Violence Act 1994 and in conjunction with the Magistrates court rules 1992.
The court file “the official record of the court file Has (sic) been interfered with by persons or person unknown making its existence Fatally Flawed and unable to confirm what evidence has existed or not existed and what evidence has ever been presented within the court file to the various courts and hearings related to the actions noted on the Certificate of record of the court for this action.
In the affidavit dated 26 May 2020, the applicant repeats some of the contents of the first affidavit including complaints arising out of inspection of the court file in May 2017. It is clear from the grounds included in these affidavits, that the applicant is seeking to question the validity of the intervention order, rather than addressing the question of a change in circumstances as required by s 26(b) of the Act.
… The submissions from the applicant were almost entirely focused upon matters ventilated previously about the validity of the intervention order. As has been emphasised in earlier proceedings, these matters have been finally determined and to attempt to relitigate them now may amount to an abuse of process of the court.
…
Having regard to the provisions of s 26 of the Act, I have formed the view that there is no evidence before me which would enable me to be satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
In refusing permission to appeal against Magistrate Sheppard’s order, Lovell J said:
The appellant submits that the Magistrate’s decision should be set aside as the intervention order is invalid. He further submits that the order should be set aside as “somebody has interfered with the court file”, making it untrustworthy. The appellant concedes that he consented to the intervention order in 2013. The appellant is seeking to withdraw his consent to that order on the basis that it was not informed.[55]
The appellant submits that the Full Court’s confirmation of the order is invalid as the Court did not have before it all the material relevant to his application. He submits that the affidavits setting out the complaint against him were not on the court file. He submits that without that material the Full Court were unable to assess whether he had a fair hearing.
…
The most relevant authority is the matter of Groom v Police; Groom v State of South Australia, a decision of the Full Court delivered on 7 December 2017. I reject the appellant’s submission that the Full Court did not have before it the affidavits relating to the initial complaint against him. The Full Court found that the interim intervention order made against the appellant was validly confirmed on 10 December 2013. Despite that finding, the appellant continues to agitate that the original intervention order is unlawful or invalid; that was the basis of his application before the Magistrate.
In a thorough and clear judgment, the Magistrate set out the history of the matter, referred to and carefully analysed the relevant statutory framework and then carefully analysed the submissions of the appellant. It is also clear that the Magistrate directed the appellant’s attention to what he was required to prove, namely a substantial change in relevant circumstances that would enable her to consider varying or revoking the final intervention order. The appellant was unable and, indeed as he was in Court, unwilling to address the relevant issue. He continued to maintain the interim order was invalid.
The appellant has not demonstrated error in the Magistrate’s reasoning. Indeed, in my view, the Magistrate’s decision was correct.[56]
[55] The appellant advanced the same argument before Kelly J in Groom v Police [2014] SASC 41, in which her Honour found that the appellant provided informed consent to the confirmation.
[56] Groom v Police [2020] SASC 167 at [6]-[7], [9]-[11]. (Footnotes omitted except footnote 54 retained)
In refusing permission to appeal against Lovell J’s order, the Court of Appeal said:
The applicant contends that the intervention order, which was made on 19 October 2011 and confirmed in the Magistrates Court on 10 December 2013, is invalid and should be revoked.
The applicant contends that both the Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order is invalid and should be revoked.
The new and compelling evidence sought to be relied on by the applicant was said to be that the failure of the court records to reveal any complaint by the original complainant raises a question as to whether the Court acted with lawful authority when originally making the ex parte intervention order on 19 October 2011. The applicant contends that in previous hearings, and in particular, the hearing before the Full Court in December 2017, the Court did not have the benefit of viewing the court file and thus ascertaining the true basis of the evidence within the file.
…
Notwithstanding the decision of the Full Court, the applicant again applied to a Magistrate to revoke the order that was made on 10 December 2013. It was the refusal of that application that brought the application for permission to appeal before Lovell J, who correctly refused the application.
…
In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.[57]
[57] Groom v Police [2021] SASCA 1 at [2]-[4], [8], [10]-[11].

Insofar as Mr Groom’s revocation application was based on a contention that the interim order should not have been made, it was misconceived because the making of the interim order was superseded by the confirmation by consent of the interim order for the reasons given above.
Insofar as the revocation application was based on a contention that the confirmation was vitiated, is not open to Mr Groom to advance that contention on the revocation application because it had already been decided adversely to him in proceedings between the same parties, namely on the appeal heard by Kelly J and the subsequent appeal to the Full Court.
Given the inevitable failure of those two contentions, it was inevitable that the application would be dismissed in the exercise of the discretion by the Magistrate under section 26(4)(b) of the Intervention Orders Act.
The revocation application was instituted without reasonable ground.
The Attorney-General also contends in the alternative that the revocation application was instituted for an ulterior purpose, namely to relitigate matters previously determined against Mr Groom. I reject that contention. It is apparent that Mr Groom’s purpose in instituting the revocation application was to seek revocation of the intervention order, which is not an ulterior purpose. The mere fact that, in the course of doing so, he sought to relitigate matters previously decided against him does not entail that the proceeding was instituted for an ulterior purpose. I reject the Attorney-General’s alternative contention that the revocation application was instituted for an ulterior purpose.
Appeal heard by Lovell J
The tenth proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal against the dismissal by Magistrate Sheppard of his revocation application.
The appeal raised the same issues as Mr Groom’s first instance application heard by Magistrate Sheppard. It was instituted without reasonable ground for the same reasons.
The Attorney-General also contends in the alternative that the appeal was instituted for an ulterior purpose for the same reason as the revocation application that was heard by Magistrate Sheppard. I reject that contention for the same reason as in respect of the revocation application heard by Magistrate Sheppard.
Appeal to the Court of Appeal
The eleventh proceeding alleged by the Attorney-General to have been instituted without reasonable ground was Mr Groom’s appeal to the Court of Appeal against the judgment of Lovell J.
This appeal raised the same issues as Mr Groom’s first instance appeal heard by Lovell J. It was instituted without reasonable ground for the same reasons.
The Attorney-General also contends in the alternative that the appeal was instituted for an ulterior purpose for the same reason as the appeal that was heard by Lovell J. I reject that contention for the same reason as in respect of the appeal that was heard by Lovell J.
Mr Groom’s cross action in this proceeding
The twelfth proceeding alleged by the Attorney-General to have been instituted without reasonable ground is Mr Groom’s cross action in this proceeding.
As the cross action was only constituted as a cross action during the trial of this proceeding, I decline to take it into account as a vexatious proceeding.
Persistent institution of vexatious proceedings
I have found that Mr Groom instituted 11 proceedings without reasonable ground between 2014 and 2020.
As observed above, the term “persistently” suggests determination and continuing in the face of difficulty or opposition with a degree of stubbornness. Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted and the extent to which they represent attempts to re-litigate issues already conclusively determined.
Although in previous cases in which orders have been made under section 39 it has been found that the respondent instituted many more than 11 vexatious proceedings, it is necessary to have regard to the manner in which Mr Groom instituted the proceedings in question. After failing in his appeal before Kelly J against confirmation of the intervention order, Mr Groom not only instituted a further appeal to the Full Court but he also twice applied to revoke the intervention order by relitigating grounds that he advanced or should have advanced on that appeal. In each instance, he then appealed to a single Judge and then to the Full Court or the Court of Appeal against the dismissal of his revocation application. In addition, he instituted the civil action against the State and then appealed against its summary dismissal to the Full Court.
Given their number, the way in which they were conducted and the extent to which they represented attempts to re-litigate issues already conclusively determined, Mr Groom has persistently instituted vexatious proceedings.
Discretion
Although the Attorney-General has established that Mr Groom has persistently instituted vexatious proceedings, I nevertheless have a discretion whether or not to make an order under section 39.
As has been observed in previous proceedings and as I observed during the trial of this proceeding, Mr Groom has a deep-seated sense of grievance in relation to the intervention order. Unless an order is made under section 39, it is very likely that he will continue to institute proceedings seeking to challenge the intervention order on grounds which have already been rejected.
The order sought by the Attorney-General is relatively limited. The Attorney-General does not seek an order generally prohibiting Mr Groom from instituting proceedings in a prescribed court. The order sought is limited to proceedings relating to the intervention order made against Mr Groom on 19 October 2011 which was confirmed on 10 December 2013).
It is appropriate to exercise my discretion to make an order under section 39 as sought.
Conclusion
I propose to make the following orders:
1On the Attorney-General’s application, order that Mr Groom be prohibited without the prior leave of this Court from instituting proceedings in a prescribed court relating to the intervention order made against him on 19 October 2011 (which was confirmed on 10 December 2013).
2 Mr Groom’s cross action is dismissed.
I will hear the parties concerning costs and any other orders sought.

[2023] SASC 18

10 February 2023