Cook v Galloway - [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

This is an appeal from a Magistrate’s dismissal of an application for the confirmation of an interim intervention order.
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.
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.
These initial settlement negotiations failed and proceedings in the Family Court were initiated by the respondent. During his oral submissions on the appeal, the appellant indicated, without opposition from the respondent’s counsel, that the parties had, by then, reached terms with respect to the property, embodied in consent orders in the Family Court. It is understood that those orders provide the appellant with a first option to acquire the property by making a payment to the appellant within a certain timeframe. There are alternative orders in default of this taking place. At the hearing, the appellant was confident that the finance was in place to enable him to acquire the respondent’s interest in the property. The orders also provide that, should the appellant acquire the property, the parties must also make arrangements for the respondent to collect from the property her remaining belongings within 14 days of the settlement.
On 17 April 2014 and whilst the Family Court proceedings were in train, the appellant made a private application in the Elizabeth Magistrates Court for an intervention order against the respondent. The application was made pursuant to subsection 20(1)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’). The persons, the protection of whom was sought, were the appellant and his ten year old son from a previous relationship who resides with the appellant five nights a fortnight. An interim intervention order was issued pursuant to subsection 21(3)(a) of the Act. The interim order included conditions to the effect that the respondent was not to come within 100 metres of either the appellant or his son or make contact with them in any way.
The appellant subsequently sought confirmation of the interim intervention order pursuant to subsection 23(1)(a) of the Act. The matter was listed for trial before a Magistrate on 30 October 2014. The appellant appeared in person and gave oral evidence in support of his application. He was cross-examined by counsel for the respondent. The trial continued for a second day on 26 November 2014. At the close of the appellant’s case, counsel for the respondent made a no case to answer submission. The Magistrate delivered ex tempore reasons dismissing the appellant’s application, revoking the interim intervention order, and ordering that the appellant pay the respondent’s costs in the amount of $4,730.
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.
On 10 January 2014, the appellant wanted to go shopping. He was concerned about leaving the respondent home by herself because of an incident, the day before, when she allegedly attempted to harm herself. The respondent refused to accompany him shopping, so he telephoned her mother in order to ask her to come over. At this time the respondent jumped on top of him and started punching him. The respondent then spoke to her mother on the phone for a period before handing the phone back to the appellant. She commenced punching the appellant again. The appellant called the police who attended. They, together with the respondent’s mother who had also arrived, persuaded the respondent to leave the property.
There was another incident on the evening of 26 January 2014 when the appellant and respondent were both at home. The appellant followed the respondent into her bedroom and prevented her from closing her door. The respondent allegedly picked up a hammer from beside her bed. The appellant backed away and allowed her to lock the door. The respondent came out of the room a few minutes later and ran into the bedroom of the appellant’s son who was asleep in bed. The appellant followed the respondent into the room and stood between the respondent and his son. The respondent grabbed the appellant by the throat, whereupon he grabbed her shoulder and pushed her away. This caused her to fall and land on the ground. The respondent complained of a collar bone injury but she refused to seek medical treatment. The respondent reported this incident to the police. The appellant alleges that she later used this to blackmail him in an attempt to obtain more money as part of the settlement of the property. The police matter was not pursued.
The appellant said that the respondent, on a number of occasions, prevented him from having access to his medication. The appellant suffers from attention deficit hyperactivity disorder for which he takes prescription medication. The appellant alleged that the respondent was stealing his medication. He reached this conclusion upon counting his tablets on a daily basis over a short period of time. He confronted the respondent about this. She initially denied but ultimately admitted taking some tablets. The appellant thereafter locked his medication in the boot of his car.
The appellant also gave evidence of various incidents involving the respondent taking out her anger on his chickens and roosters which he kept as pets in the backyard. Apparently, the respondent threw a soccer ball at his chickens, attempted to hit them with a piece of poly pipe and threatened to kill the rooster with a brick if it didn’t stop crowing. The appellant also spoke of an occasion when he arrived home to find his roosters bound by their legs to a gate. He assumed this was the work of the respondent.
All of the incidents, insofar as and to the extent they occurred, described to this point, occurred before the respondent moved out of the property permanently in February 2014.
The appellant also gave evidence of an incident that occurred following an interlocutory hearing in this matter in the Elizabeth Magistrates Court on 30 July 2014. The appellant arrived at the Court and was sitting outside the courtroom waiting for the hearing to commence. The respondent and a man, who the appellant believed to be her partner at the time, were sitting in a nearby interview room. The appellant alleged that the man continued to stare at him for several minutes until the hearing commenced. After the hearing and while the appellant was in his vehicle and leaving the Court’s car park, the man allegedly approached from the passenger side and took a photo of the appellant with his phone.
The Magistrate’s reasons for dismissing the application
After summarising the appellant’s evidence in support of his application, the Magistrate gave the following reasons for dismissing the application.
Having considered all the evidence before me I have concluded that it is not reasonable to suspect that the defendant will without an intervention order commit any future act of abuse against the applicant. In my view the only real concern between the parties is the property settlement through the Family Court which proceedings are well under way. I find that there is no proper basis on which I should confirm the intervention order, therefore pursuant to section 23 of the Act, I dismiss the application and revoke the interim intervention order issued against the [respondent].[1]
[1] Cook v Galloway MCPAR-14-3767, Magistrate’s ex tempore judgment, 26 November 2014 at [8].
The basis of the appeal
On 30 January 2015, the appellant filed amended grounds of appeal, but with no objection from the respondent.[2] The amended grounds of appeal are quite extensive, but can be distilled to the following contentions:
(i)The Magistrate erred in finding that it was not reasonable to suspect that the respondent will, without intervention, commit an act of abuse.
(ii)The Magistrate’s error in this respect was twofold; a failure to make certain findings of fact that were supported by the evidence and the erroneous making of certain findings of fact that were not so supported.
(iii)The appellant was not afforded procedural fairness by both the Magistrate and counsel for the respondent in the manner in which, in a number of respects, the trial proceeded.
(iv)The Magistrate erred in awarding the costs of the proceedings in favour of the respondent.
[2] See Second Notice of Appeal, dated 30 January 2015 (FDN 3).
The grounds based on asserted failures to afford procedural fairness (contention (iii)) were abandoned by the appellant during the hearing of the appeal and will not be considered further.
Analysis
It is convenient to set out the sections of the Act relevant to the issue and confirmation of an intervention order.
Section 6 of the Act sets out the grounds on which a court may issue (and confirm) an intervention order.
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.
Section 8 defines the various forms of conduct that may constitute an “act of abuse”.
8—Meaning of abuse—domestic and non-domestic
(1)"Abuse" may take many forms including physical, sexual, emotional, psychological or economic abuse.
(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.
(3)"Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
(4)Emotional or psychological harm—examples
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
(a)     sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity;
(b)     unlawfully depriving the person of his or her liberty;
(c)     driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle;
(d)     causing the death of, or injury to, an animal;
(e)     following the person;
(f)    loitering outside the place of residence of the person or some other place frequented by the person;
(g)     entering or interfering with property in the possession of the person;
(h)     giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person;
(i)    publishing or transmitting 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, the person;
(j)      communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;
(k)     keeping the person under surveillance;
(l)    directing racial or other derogatory taunts at the person;
(m)    threatening to withhold the person's medication or prevent the person accessing necessary medical equipment or treatment;
(n)     threatening to institutionalise the person;
(o)     threatening to withdraw care on which the person is dependent;
Subsection 23(1) of the Act sets out the powers of a court in determining applications of this nature.
23—Determination of application for intervention order
(1)On the hearing of an application for an intervention order, the Court may—
(a)     confirm the interim intervention order issued against the defendant as an intervention order; or
(b)     issue an intervention order in substitution for an interim intervention order issued against the defendant; or
(c)     dismiss the application and revoke the interim intervention order issued against the defendant.
Finally, section 28 of the Act prescribes the relevant burden of proof.
28—Burden of proof
In proceedings under this Part, the Court is to decide questions of fact on the balance of probabilities.
In Police v Giles[3] the Chief Justice made the following general observations regarding the basis for a finding, under section 6, of reasonable suspicion that an act of abuse will be committed.[4]
[3] [2013] SASC 11.
[4] At [29]-[32].
The primary ground for the making of an intervention order is the reasonable suspicion that the defendant will commit an act of abuse. Proof that the defendant has committed an act of abuse in the past is not expressly made a precondition to the making of an intervention order. It is at least theoretically possible to hold a prescribed suspicion without making any finding of fact, or any firm finding of fact, as to past events. However, the Act appears to contemplate that the court will make findings of fact about past events and provides that it is to make those findings on the balance of probabilities.[5]
[5] Section 28 of the Act.
Analysis
I will proceed in this matter on the basis that the reasonable suspicion that the defendant will, if unrestrained, commit an act of abuse must be founded on findings of fact made on the balance of probabilities about past events. However, I would make two observations about the grounds for making an intervention order. First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
As to the first observation, there is no doubt that an order could be based on evidence of a statement of an intention to commit an act of abuse even if the communication was not made to the victim or, indeed, in the case, for example, of a personal diary note, to anyone else at all. As to the second observation, the temporal connection of the past event to the application is a relevant consideration, but, depending on the nature of the circumstances, an event occurring many years earlier may nonetheless found a reasonable suspicion that the defendant will commit an act of abuse.
The reasonable suspicion may, relevantly to this appeal, be broken down into two further elements. The first, a reasonable suspicion that the defendant will act in a certain way. The second, a reasonable suspicion that those acts, if committed, will have the prescribed effect on the protected person which, relevantly to this case is anxiety, of something more than a trivial kind.

Having found that such a suspicion did arise in the circumstances of that particular case, his Honour went on to consider whether, pursuant to paragraph (b) of section 6, it was appropriate in the circumstances to make such an order.[6]
It remains for me to consider whether it is otherwise appropriate to make the intervention order. Having formed the prescribed suspicion there is no reason in the circumstances of this case not to make the intervention order sought. There is a clear statutory policy manifested by s 10 of the Act that, in weighing the discretionary considerations on the appropriateness of restricting a defendant’s freedom of movement, great weight is to be given to the welfare and personal autonomy of the protected person.
[6] At [42].
The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.
In this matter, the Magistrate formed the view that it was not reasonable to suspect that the respondent would commit an act of abuse in the future in the absence of an intervention order. The appellant contends that the Magistrate did not expressly articulate the findings of fact upon which this conclusion was based but, rather, merely recited the evidence as given by the appellant. There is some justification to this complaint. The correct approach is as the Chief Justice has explained. Whether a suspicion is reasonably held, ordinarily, will be based on findings of fact which findings must be supported by the evidence and articulated by the fact finder. In this case, the Magistrate summarised the evidentiary matters concerning the relationship history on the basis of which he formed his view without expressly making findings of fact. Nevertheless, on a reading of the Magistrate’s reasons as a whole, I infer that, even on the basis of the appellant’s complaints, taken at their highest, the Magistrate could not be satisfied that there was a sufficient basis to confirm the intervention order.
In any event, an appeal against a refusal to confirm an intervention order falls within the purview of section 42 of the Magistrates Court Act 1991 (SA).[7] In Martin v The Department of Transport, Energy & Infrastructure,[8] White J considered the approach to be undertaken by this Court in hearing such appeals. Although that case concerned an appeal against conviction for a criminal offence, the same principles apply to the present appeal. His Honour observed:
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
Accordingly, although the appellant’s criticisms of the Magistrate’s decision are important, this Court must review the whole of the evidence put before the Magistrate.[9]
[7] Groom v Police (No 3) [2013] SASC 93 at [22]-[28] (Sulan J).
[8] [2010] SASC 141.
[9] At [38]-[39].
It remains my task to make a full and independent review of the evidence before the Magistrate and to come to my own conclusion. In doing so, I must be mindful of the usual advantages the Magistrate enjoyed in seeing and hearing the witnesses (in this case, the appellant) who gave evidence.[10]
[10] Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
The appellant submits that important aspects of his evidence were not referred to by the Magistrate in his reasons. The alleged sexual assault incident, the instances where the respondent allegedly stole the medication and the 30 July 2014 incident outside the Elizabeth Magistrates Court were not referred to. The appellant contends that had the Magistrate accepted all of the appellant’s evidence, including that concerning the incidents just referred to, sufficient cause for a reasonable suspicion that the respondent would commit an act of abuse in the future would have been established.
I have conducted an independent review of all of the evidence at the trial. I will assume for present purposes that the many incidents of arguing, fighting and disharmony referred to in the appellant’s evidence did occur and in the way described.
A significant consideration, both at trial and on appeal, is that all but one of the incidents on which the appellant relies in support of his application occurred within the home environment. This was plainly a hostile environment, particularly on account of the parties’ close proximity to each other on a day to day basis in the context of a volatile relationship breakdown.
The respondent now lives with her mother approximately 20 minutes by car from the appellant’s residence. The appellant has seen the respondent when driving on the odd occasion. However, and leaving aside the present proceedings and those in the Family Court, for quite some time now, there has been and will be in the future, no reason and little, if any, opportunity for the parties to interact.
The appellant brought his application on 17 April 2014, some two months or so after the respondent had moved out and whilst the parties were engaged in a difficult stage of their property settlement negotiations. However, the application was not determined by the Magistrate until some seven or so months later by which time the parties had been living apart for some nine months or so. Apart from the staring/photograph incident in the Court carpark with respect to which the respondent was not directly involved, there had been no incident of concern since February 2014. Furthermore, the incidents when the parties lived together, as described, involved behaviour by each party in reaction to the behaviour of the other. Much of it was spontaneous and occurred in the heat of the moment. It was argumentative behaviour where each party, particularly the respondent on the appellant’s account, went too far.
The relationship is well in the past. The landscape at the time of the trial had significantly changed with the opportunity for further engagement between the appellant and respondent greatly diminished. Further, on the evidence, the respondent has shown no desire or proclivity to seek out the appellant.
After taking into consideration the nature of the previous confrontations between the appellant and the respondent, the lack of any intimidatory behaviour by the respondent following her leaving the house and the reduced scope or likelihood for future interaction, I, like the Magistrate, do not find that it is reasonable to suspect that the respondent will, without intervention, commit an act of abuse against either the respondent or his son. In reaching this conclusion, I have had regard to the very broad definition of “abuse” in section 8.
The decision reached by the Magistrate was correct and is not one with which I would interfere. The Magistrate’s orders dismissing the application and revoking the interim intervention order are to stand.
The question of costs
The power to make a costs order in the context of restraining order proceedings is regulated by section 189C of the Summary Procedures Act 1921.
189C—Costs against complainant in proceedings for restraining order
(1)Despite any other provision of this Part, costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
(2)In this section—
"complainant", in relation to a restraining order, includes an applicant for a restraining order;
"restraining order" includes a domestic violence restraining order under the Domestic Violence Act 1994 and an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 .
Following the Magistrate’s ex tempore delivery of reasons for judgment, counsel for the respondent made an application for costs. The premise of the respondent’s application was that section 189C should not apply, as the appellant had acted in bad faith and unreasonably in seeking the intervention order. It was submitted that he was not motivated by a genuine fear for the safety of himself or his son, but rather by a desire to keep the respondent away from the property so as to enhance his chances of obtaining settlement in the Family Court proceedings. Counsel for the respondent also submitted that there had been ongoing discussions between him and the appellant prior to trial with a view to resolving the matter by way of a signed undertaking from the respondent that she would not attend the property. The appellant refused to resolve the matter in this way.
The Magistrate ruled in favour of the respondent and, again, provided brief ex tempore reasons.
I can’t find anything to support the fact that [the applicant] acted in bad faith, but I do believe that the proceedings have been brought unreasonably, there have been a number of instances where the defendant counsel has indicated there’s been discussions, negotiations, that the matters could have been resolved at a very early stage by giving an undertaking, and of course the applicant did not have to accept that, which he didn’t and the matter has been before the courts many, many times, and eventually it has come to trial and has taken two days to resolve. In the circumstances I therefore award costs to the defendant for items 1 and item 2 under the schedule of costs, which is $900 in each case also two days trial of $1250 each that comes to $4300 plus GST which is $4730.
The appellant seeks to challenge that ruling and submits that the Magistrate erred in finding that the proceedings were brought unreasonably and in finding that the matter could have been resolved at an early stage by way of an undertaking. He maintains that he acted reasonably when refusing the respondent’s offer of an undertaking. He was concerned that such an undertaking was not enforceable. The appellant also submits that the Magistrate failed to consider other matters relevant to the question of costs; namely, a lack of disclosure by the respondent prior to trial, a lack of any genuine attempt by her to narrow the issues and her unreasonable objection to the use of affidavit material by the appellant.
The question of costs in these circumstances is, ultimately, discretionary. However, there is a condition precedent which must be satisfied by a person who seeks an order for costs before the discretion will arise. There must first be a finding that the complainant “has acted in bad faith or unreasonably in bringing the proceedings”. I will assume for present purposes, but without deciding, that the phrase “in bringing the proceedings” is to be read as “in bringing and continuing with the proceedings”.[11]
[11] Nyland J appeared to assume as much in Police v McIntosh [2009] SASC 253 at [12].
Any conclusion of acting in “bad faith” or acting “unreasonably” can only be arrived at upon a finding of primary facts which are capable of supporting such a conclusion. This will involve a judgment based on matters of fact and degree but not the exercise of a discretion at this stage.
The Magistrate, having had the benefit of hearing and seeing the appellant give his evidence, was not satisfied of any bad faith. Such a finding involves a consideration of subjective considerations which the Magistrate was best placed to resolve. It would not be appropriate for me to disturb this finding even if I had been asked to do so.
The Magistrate did find that the proceedings had been brought unreasonably, and, on this basis, allowed the costs application. However, his Honour apparently based this conclusion on only one finding of intermediate fact – that the proceedings could[12] have been resolved at a very early stage by accepting the undertaking. On my review of the evidence and the submissions, the Magistrate erred in finding, by implication, that the appellant acted unreasonably in continuing with the proceedings rather than accepting an undertaking. In addition, the Magistrate, with respect, failed to have regard to at least one other consideration relevant to the exercise of the discretion to award costs, even if the finding that the appellant had acted unreasonably was justified.
[12] I am content to read his Honour’s ex tempore reasons as indicating that in his Honour’s view the appellant should have resolved the proceedings this way.
I will come to this other discretionary consideration later in these reasons. I also add here that, in the circumstances of this case, I am satisfied that it is appropriate for me, on appeal, to review the question of whether or not the appellant acted unreasonably in refusing the undertaking, notwithstanding the usual advantages enjoyed by the Magistrate.[13]
[13] Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
I turn to the question of whether or not the appellant acted unreasonably. The mere fact that he failed with his application cannot be sufficient to establish this. Otherwise, section 189C would be otiose; costs, in the usual way, would simply follow the event. It will be helpful to briefly traverse the interactions between the parties prior to trial.
The first occasion an undertaking from the respondent was broached was during a pre-trial conference on 10 June 2014. Although the parties disagree about who first raised the notion, it is common ground that, directly following the 10 June hearing, the appellant indicated that he was amenable to withdrawing his application in the event such an undertaking was given. However, in an email dated 18 June, the appellant advised that he was no longer willing to accept an undertaking because he was concerned that such an undertaking would not be enforceable by the court.
Further discussion about resolving the matter on this basis occurred after another interlocutory hearing on 30 July. The appellant again refused such an offer and again on the basis of its unenforceability. In correspondence between the parties on 27 October, some three days prior to commencement of the trial, counsel for the respondent proposed a resolution by way of the respondent undertaking not to “contact [the appellant] directly or indirectly save through her legal advisers and that she not attend the subject property”. The appellant again refused but made a counter-offer that the respondent consent to an intervention order on a without admission basis with each party to bear their own costs. Counsel for the respondent replied on 29 October and restated the offer of an undertaking. The offer was refused and the matter proceeded to trial the following day.
The plaintiff was unrepresented. He genuinely believed that he had a proper basis for his apprehension and his application. The relationship between himself and the respondent had been volatile. The volatility increased as the relationship deteriorated. It had involved violence on both sides. The appellant has the care of a ten year old son for whose welfare he was plainly concerned. He also developed an anxiety about the welfare of his animals. There was ample evidence, at the trial, to the effect that there was, at least while the couple were living together, a real risk that the respondent might take out her frustrations on the appellant’s pet animals.
The appellant’s concerns were genuine; the Magistrate made no finding to the contrary and, on my reading, the evidence supports such a finding. The applicant lost because, in essence, as time passed and as the property dispute moved closer to final resolution, it ceased to be reasonable to suspect that the respondent would, without intervention, commit an act of abuse (as broadly defined in the Act). Whether or not it was, in the circumstances at trial, reasonable to so suspect, called for an objective determination by the Magistrate. As I have indicated, it does not follow that by failing in this respect the appellant necessarily acted unreasonably in bringing or continuing with the proceedings.
To this point, it could not be said that the respondent acted unreasonably. However, and with this background in mind, did the appellant act unreasonably in refusing the various offers of the undertaking? Again, I am not satisfied that he did. I leave aside the situation of an offer to provide an undertaking in suitable terms to the Court which may, ultimately, be “enforceable” albeit, usually only after the event of breach, through contempt of Court proceedings. Such an undertaking may be seen as broadly providing protection similar to that provided by an intervention order made under section 6. Of course, an intervention order also will only be enforced (in the typical case) after the event of any breach. The evidence does not suggest that an undertaking to the Court was offered. A personal undertaking does not offer anywhere near the same level of protection, if any at all.
The appellant had genuine concerns and genuinely believed that he was able to establish the basis for a Court order under section 6; an order that could be enforced, after any breach, through the criminal law. Such an order offers a genuine form of protection. The relationship had been volatile. It had necessarily generated fear and lack of trust – perhaps on both sides. Common experience suggests that the parties to a relationship marked by domestic violence are not always to be trusted to behave consistently and not to react unthinkingly out of frustration. A personal undertaking will not address those inherent risks and therefore will provide little solace. The appellant did not act unreasonably in refusing a personal undertaking. My conclusion in this respect, is fortified by the public policy considerations to which I now turn.
By subsection 189C(1) of the Summary Procedures Act 1921, the prima facie position is that costs should not be awarded against a complainant in proceedings such as these. Such an approach is grounded in public policy considerations. In White v Police,[14] Perry J considered a Magistrate’s refusal to order costs in favour of a respondent to a police initiated restraining order application, which application fell away when the complaint underlying the application was withdrawn. In finding that the Magistrate had not erred by refusing to award costs to the respondent, his Honour observed:
The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty. In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation. That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.[15]
[14] Judgment No S6452 (Unreported Judgment delivered on 19 November 1997) BC 9706341.
[15] At 7-8.

Perry J’s comments were adopted by Nyland J in Police v McIntosh,[16] which also concerned the question of costs following withdrawal by the police of restraining order proceedings prior to trial. Unlike in White, the trial Magistrate in McIntosh had awarded costs to the respondent. In considering on appeal whether the Magistrate erred in doing so, her Honour said this.
In making the order for costs, the Magistrate appears to have proceeded on the basis of the “normal rule” that costs follow the event. Although in her concluding remarks she referred to the existence of the “special statutory provisions concerning costs, awards and cases concerned with restraining orders”, she does not appear to have specifically turned her mind to the test provided by s 189(2a).[17] The purpose of the special provision for costs contained in s 189(2a) was to remove the cost disincentive for people who, as a matter of policy, should not be dissuaded from using the legislation, whether or not those applications were ultimately successful. The public policy discretion consideration discussed by Perry J in White’s case continues to be an important factor which must always be borne in mind in the exercise of the discretion. In this case the police could possibly have done more by way of investigation but that in itself does not amount to bad faith or unreasonableness in the bringing, or the continuation of, the proceedings. The institution of these proceedings and their subsequent withdrawal is explicable on proper grounds.[18]
[16] [2009] SASC 253.
[17] The terms of s189(2a) of the Summary Procedures Act, as it then stood, are replicated verbatim by s189C(1) of the current version of the Act, save that the latter provision contains the precursor “Despite any other provision of this Part…”.
[18] At [12] (Emphasis supplied).
The respondent submits that because McIntosh and White both dealt with intervention proceedings brought by police, the public policy considerations canvassed should carry less weight than in the present matter which concerns a private application. I do not agree with that submission. I am inclined to the view that the public policy concerns addressed by Perry J and Nyland J should apply regardless of whether proceedings have been initiated by the police on behalf of an individual or privately by a member of the public. Indeed, there is an argument that the public policy considerations should take on a greater level of significance in the case of the latter. A member of the public is perhaps more likely to be discouraged from bringing an application where there is the possibility of an adverse costs order being made against them.
For these reasons, the Magistrate’s exercise of the discretion to require the appellant to pay the respondent’s costs miscarried. I am not satisfied that the appellant’s conduct in bringing and continuing the proceedings was unreasonable in the circumstances. This is sufficient to resolve the costs question. This was not a case where the protection afforded to the appellant under section 189C of the Summary Procedures Act 1921 should have been displaced.
I allow the appeal insofar as it relates to the Magistrate’s order as to costs but otherwise dismiss the appeal. I make the following orders.
1.The appeal against the Magistrate’s orders, dismissing the application for confirmation of the interim intervention order and revoking the interim intervention order, is dismissed.
2.The appeal against the Magistrate’s order that the appellant pay the respondent’s costs of trial is allowed.
3.The costs order made by the Magistrate is set aside.
4.Each party is to bear their own costs of the trial.
I will hear the parties on the question of the costs of the appeal