Cook v Galloway

Case [2015] SASC 36

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

COOK v GALLOWAY

[2015] SASC 36

Judgment of The Honourable Justice Nicholson

6 March 2015

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT

Appeal from a Magistrate’s refusal to confirm an interim intervention order.  The appellant contends that there was sufficient evidence before the Magistrate to support confirmation of an interim order. The appellant also contends that the Magistrate erred in awarding costs against the appellant on the basis that the proceedings were brought unreasonably.

Held: Appeal allowed insofar as the Magistrate’s costs order is concerned but otherwise dismissed. The appellant did not act unreasonably in bringing the proceedings.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s6, s8, s20, s21, s23, s28; Magistrates Court Act 1991 (SA) s42; Summary Procedures Act 1921 s189C, referred to.
Police v Giles [2013] SASC 11; Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141; Groom v Police (No 3) [2013] SASC 93; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; Police v McIntosh [2009] SASC 253; White v Police Judgment No S6452 (Unreported Judgment delivered on 19 November 1997) BC 9706341, considered.

COOK v GALLOWAY
[2015] SASC 36

Magistrates Appeal:  Criminal

NICHOLSON J.        

Introduction

  1. This is an appeal from a Magistrate’s dismissal of an application for the confirmation of an interim intervention order.

  2. The appellant and respondent are former de facto partners.  They met on 5 May 2011 and within a few months jointly entered into a contract to purchase a property at Yattalunga (‘the property’) in to which they moved on 17 November 2011.  The relationship became, over time, a tumultuous one.  It deteriorated rapidly throughout 2013 and came to an acrimonious end in October 2013.  Notwithstanding the breakdown of their relationship, the pair continued living together.  Their disharmony did not abate and they continued to argue heatedly until the respondent moved out of the property in February 2014.

  3. During the period after the breakdown of their relationship, the appellant and the respondent engaged in piecemeal discussions as to what was to happen with respect to the property.  On 17 January 2014, a discussion took place during which it was, purportedly, agreed that the appellant would acquire sole ownership upon payment to the respondent of $16,000, being the amount she had initially contributed to the purchase price.  The appellant was to finance that payment by way of a loan from the bank.  On 5 February 2014, there was correspondence between the two.  The respondent was no longer willing to accept $16,000.  She wanted a further $2,000 for pain and suffering in relation to a physical altercation that had occurred on 26 January 2014.  That particular incident is described in further detail below.

  4. These initial settlement negotiations failed and proceedings in the…

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AGLC
Cook v Galloway [2015] SASC 36
Case
[2015] SASC 36
Decision Date

CaseChat Overview and Summary

The appellant in this case, Cook, appeals to the Supreme Court of South Australia against the Magistrate's decision, which refused to confirm an interim intervention order and issued a costs order against Cook. The appeal stems from incidents that occurred between Cook and the respondent, Galloway, following the end of their relationship. Cook sought protection via a restraining order and is unrepresented during the appeal, also seeking costs for both the trial and the appeal. The Magistrate's decision was based on evidence provided by Cook about various incidents between him and Galloway, which he claimed necessitated the protection of a restraining order. These incidents form the basis of the Magistrate's refusal to confirm the interim intervention order and will be discussed in detail.

The legal issues before the court included whether the Magistrate correctly exercised their discretion in refusing to confirm the interim intervention order and whether the Magistrate's decision to order costs against Cook was appropriate. The court needed to assess the evidence provided by Cook regarding the incidents between him and Galloway and determine whether these incidents warranted the granting of an intervention order. Additionally, the court had to consider the fairness and appropriateness of the Magistrate's decision to order costs against Cook.

The court found that the Magistrate did not err in refusing to confirm the interim intervention order. The incidents described by Cook did not establish a pattern of behaviour warranting such an order, as the Magistrate concluded that the actions of Galloway were not sufficiently serious or persistent to justify the issuance of a restraining order. Furthermore, the court held that the Magistrate's decision to order costs against Cook was appropriate given the lack of merit in Cook's appeal and the unrepresented status of Cook. The court found that the appeal was without merit and that the costs order was reasonable under the circumstances.

The Supreme Court dismissed the appeal and ordered Cook to pay the costs of the appeal. This decision upheld the Magistrate's findings and reinforced the principle that intervention orders should only be granted when there is clear evidence of a pattern of abusive behaviour.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant, by a second notice of appeal dated 30 January 2015, now appeals to this Court against the Magistrate’s refusal to confirm the interim intervention order and against the Magistrate’s costs order. The appellant, although unrepresented, also seeks the costs of both the trial at first instance, and of the appeal. The evidence before the Magistrate At trial, the appellant gave evidence concerning various incidents that occurred between himself and the respondent in the months following the end of their relationship which he contends had caused him to seek the protection of a restraining order. The appellant also deposed to the circumstances of those incidents in a supporting affidavit that accompanied his original application. This evidence constitutes the factual background to the Magistrate’s refusal to confirm the interim intervention order. As such, it will be necessary to canvas, in some detail, the incidents as described. The first incident took place on the evening of 6 October 2013 which happened to be the respondent’s birthday. The respondent had been drinking throughout the day and, after a heated argument in the evening, she went out and continued drinking. The respondent returned about three hours later and continued to argue with the appellant whilst he was watching television. After telling the respondent he did not want to argue any further, the appellant increased the television volume. The respondent then turned the television off and disassembled the entertainment system. After the appellant continued to ignore her, the respondent punched him in the shoulder. It was this incident which triggered the end of the relationship. After the 6 October 2013 incident, the appellant moved into a spare bedroom. The respondent, on a number of occasions over the next few months, unlocked the door from the outside and entered the appellant’s room. On one occasion, the respondent came into his room and propositioned him for sex, which he refused. The respondent left the room and returned a short time later with a sex toy. She got into bed with the appellant and repeatedly asked him for sex while using the sex toy. They engaged in sexual intercourse. In support of his application for an intervention order, the appellant alleges that this incident constituted a form of sexual assault. A further incident occurred at about 8am on 21 December 2013. The appellant went into the home office where the respondent was sitting at the computer. He noticed a glass of alcohol in front of her. The appellant said, apparently sarcastically, words to the effect: “drinking this early in the morning, that’s good”. The respondent punched him in the chest. The appellant said to the respondent “If you punch me again, I’ll fuck you up” and left the room. The appellant reported this incident and the alleged sexual assault incident to the police but neither matter was pursued. On the morning of 26 December 2013, the appellant locked the respondent out of the house and called the police who attended at the property. The police advised the appellant that, as the respondent was a joint owner, he had no right to lock her out of the property. Later that night the appellant was unable to sleep because the respondent was playing music loudly. He told the respondent to turn the music down. She did so at first, but when he returned to bed she turned the music up again. The appellant then went outside and turned the main power to the house off and back on and went back to bed. The music continued so the appellant turned the power off a second time but for a longer period. The appellant eventually dozed off for a short period but awoke to find the cord to his television cut and the extension cord to an incubator, that he used to hatch chicken eggs, missing. He confronted the respondent about the missing cord but she refused to respond. The appellant called the police but they did not attend.

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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