Cunningham v Police - [2021] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
CUNNINGHAM v POLICE
[2021] SASC 46
Judgment of the Honourable Justice Blue
30 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE
CRIMINAL LAW - GENERAL MATTERS
ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL
The appellant appeals or seeks permission to appeal against a decision by a Magistrate, on his application to revoke a consent final intervention order, that evidence must be adduced relevant to the original grant of the intervention order.
The respondent contends that the appeal is incompetent because it is against a ruling rather than a judgment or order but, if the appeal is competent, concedes that permission to appeal should be granted and accepts that the Magistrate made an error in the ruling.
An interim intervention order was made by a police officer pursuant to section 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act). In due course it was confirmed as a final intervention order by consent of the appellant while disputing the grounds on which it was sought pursuant to section 23(3) of the Act.
The appellant subsequently filed an application to revoke the final intervention order under section 26 of the Act supported by an affidavit in which he said, amongst other things, that there had been no contact between himself and the complainant since the making of the intervention order and he had moved away from the region where she lived.
A Magistrate heard the application at a trial at which the complainant and appellant gave evidence chiefly addressing matters since the interim intervention order was made. The Magistrate reserved judgment.
After delivery of reasons for judgment in G v C [2020] SASC 134, the Magistrate ruled that, in light of that decision, it was necessary to reopen the evidence, for the respondent to be dux litus and for the parties to give evidence on the question whether there had existed grounds to make the interim intervention order at the outset.
Held (allowing the appeal):
1. The appeal is competent under section 42(1) of the Magistrates Court Act 1991 (at [34]-[35]).
2. The Magistrate’s judgment is interlocutory and leave to appeal is required (at [43]).
3. Leave to appeal should be granted (at [45]).
4.The Magistrate erred in ruling that it was necessary to reopen the evidence to determine whether there had existed grounds to make the interim intervention order at the outset. Instead the Magistrate should have engaged in an iterative process to ascertain the attitudes of the appellant and the respondent and determined the appropriate course in light of their attitudes (at [83]-[96]).

5. Appeal allowed. Magistrate’s ruling set aside. Parties to be heard on further orders (at [93]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 3, 5, 6, 8, 15, 18, 21, 23, 24, 26; Magistrates Court Act 1991 (SA) ss 3, 42; Magistrates Court (Criminal) Rules 1992 (SA) r 4.07, 18.01, 18.05, referred to.
Administration of Territory of Papua and New Guinea v Guba (1973) 130 CLR 353; Blair v Curran (1939) 62 CLR 464; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853; G v C [2020] SASC 134; Kok Hoong v Leong Cheong Kwong Mines Ltd [1964] AC 993; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; McIlvar v Szwarcbord [2008] SASC 179; Police v Dorizzi (2002) 84 SASR 416; Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285, considered.

CUNNINGHAM v POLICE
[2021] SASC 46

Magistrates Appeal: Criminal

BLUE J: The appellant, Allan Michael Cunningham, appeals or seeks permission to appeal against a decision made by a Magistrate, on his application to revoke a consent final intervention order, that evidence must be adduced relevant to the original grant of the intervention order.
The respondent Police contend that the appeal is incompetent because it is against a ruling rather than a judgment or order. If the appeal is competent, the Police concede that permission to appeal should be granted and accept that the Magistrate made an error in the ruling.
Background
On 8 May 2018 a police officer, pursuant to section 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act), issued an interim intervention order against the appellant for the protection of a person with whom he had been in a relationship (the complainant).
On 20 November 2018, while disputing the grounds on which a final intervention order was sought, the appellant consented, pursuant to section 23(3) of the Act, to a final intervention order. The Court made an order by consent confirming the interim intervention order as a final intervention order pursuant to section 23 of the Act.
On 8 January 2020 the appellant filed an application to revoke the final intervention order supported by an affidavit in which he said, amongst other things, that there had been no contact between himself and the complainant since the making of the intervention order, he moved from the region in which the complainant was living to Adelaide in December 2018 and he has not breached the intervention order since the interim order was issued in May 2018.
The appellant’s application was opposed by the Police and listed for trial on 26 March 2020.
On 26 March 2020, at the outset of the trial, counsel for the appellant expressed concern that he did not have notice of the complainant’s ground of opposition to the revocation of the intervention order. During submissions, the Magistrate indicated that he would not permit evidence to be adduced, or the complainant to be cross-examined, on the factual circumstances that gave rise to the interim intervention order. Counsel for the appellant agreed with that position and did not seek to adduce or cross-examine on such evidence. The police prosecutor submitted that decisions of this Court on appeal suggested that limited reference might be needed to the basis in the affidavits that gave rise to the order so that the Court could determine whether there had been a substantial change. The Magistrate gave a ruling as foreshadowed that cross-examination would not be allowed on the complainant’s earlier affidavit.
The appellant gave evidence in chief on matters of background and elaborating on his January 2020 affidavit. He was cross-examined concerning events since May 2018 but not concerning the complainant’s allegations that led to the making of the police-issued interim intervention order. The complainant gave evidence in chief on matters of background and events since May 2018 but not concerning her allegations that led to the making of the police-issued interim intervention order. She was not cross-examined.
The Magistrate heard closing addresses and reserved judgment. He had indicated at the outset that he intended to await the delivery of reasons for judgment in an appeal in G v C (yet to be heard) against a refusal of an application for revocation of another final intervention order.
On 16 July 2020 Peek J delivered reasons for judgment in G v C.[1] Peek J held that the Magistrate erred in his approach to the application in that matter, taking too narrow an approach to the circumstances that may be taken into account on such applications. Peek J allowed the appeal and himself determined the variation application.
[1] [2020] SASC 134.
On 23 November 2020 the Magistrate heard oral submissions from the parties on the course that should be adopted given the decision in G v C. The parties had filed written submissions in accordance with directions earlier given by the Magistrate. The appellant’s submission was that the Court should have no regard to the original allegations by the complainant that led to the making of the interim intervention order. The police prosecutor submitted that a full re-visitation of the matter de novo was not required but it was appropriate for the Court to have regard to the original allegations for limited purposes. The Magistrate reserved his decision.
The Magistrate’s reasons for decision
On 15 December 2020, the Magistrate delivered reasons for decision. He referred to the history of the matter and the judgment of Peek J in G v C. His reasons included the following passages:
In the course the trial took on 26 March 2019, the procedure applied was exactly the same as matters that had been determined in this court over the last decade. That is, it was the defendant’s application so the defendant gave evidence to ground and then prove his application on the balance of probabilities. The [complainant] then gave evidence in reply as to her opposition of the application.
That procedure was typical of the procedure applied in matters prior to G v C. As was also common, counsel [for Mr Cunningham] objected to evidence being given by [the complainant] referring to any prior allegation of abuse, or any allegation of [Mr Cunningham] breaching the order during its term. That was a common approach before G v C.
In my view …, it is clear from G v C and indeed the legislation upon reflection, that a “full hearing” must be held. That is, the issues which give rise to the issuance of the intervention order must be revisited in the course of the revocation application – being the “same matters”.
…
My view is that a “full hearing” means that one must go back and consider all the evidence which founded the original application, but there is none. This order was issued in the discretion of the police, relying upon hearsay. It was confirmed by consent by the defendant without the admission of any allegation or fact. So, only now by the sworn evidence of the protected person, can I visit any allegation of abuse.
The Magistrate then referred to the difficulties that would arise if the appellant remained dux litis. His reasons continued:
Such are the difficulties in an application like this involving a s 18(9) intervention order. It is akin to running two simultaneous [applications] – one for the intervention order as a “full hearing” referring to the “same matters” and one for the revocation application.
It seems to me that the only answer is that in the usual course of events in these applications, is to proceed dux litis.
In that event, if the protected person (who is now the defendant in the revocation application) gives evidence first, then that may satisfy the grounds for the issuance of the intervention order. Therefore evidence is given about the “same matters” as required in a “full hearing”.
…
Findings of credit and fact need to be made after a “full hearing”. I still need to be satisfied that without intervention the defendant is likely to commit an act of abuse and that the issuing of interim intervention order is appropriate…
I am patently conscious that the defendant is being put to further expense and this process may also re-traumatise applicants in certain circumstances.
That is regrettable but is necessary following the authority of G v C and the legislation…
The absence of clear procedural guidance in the legislation is regretful, as is this whole situation from both sides. The work of all parties and the court are significantly increased. Therefore the likelihood of expense and delay are also significantly increased.[2]
[2] Emphasis in original.
The Magistrate indicated that he would convene a directions hearing to set a date for trial to hear evidence concerning the appellant’s conduct that gave rise to the making of the interim intervention order in May 2018.
The legislative regime
The Act provides amongst other things for the issue of intervention orders, which have the purpose of assisting in preventing “abuse” and the exposure of children to the effects of “abuse”.[3] “Abuse” is defined by subsection 3(1) effectively as an “act of abuse”, which in turn is defined principally by subsection 8(2) in the following terms:
(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]     See section 5(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) which sets out the first object of the Act.
The Act creates a two-stage process for making intervention orders. The first stage involves the making of an interim intervention order by either a police officer or the Magistrates Court.
Interim orders
Section 18 empowers a police officer of or above the rank of sergeant, or with the authorisation of a police officer of or above the rank of sergeant, to issue an interim intervention order if:
·it appears to the police officer that “there are grounds for issuing the order”; and
·the defendant is present before the police officer or in custody.
Section 18 does not specify how the police officer is to be informed of facts giving rise to such grounds but presumably it will usually be on information (directly or indirectly) from the complainant.
Section 21 empowers the Magistrates Court to issue an interim intervention order at a preliminary hearing if:
·it appears to the Court that “there are grounds for issuing the order”; and
·application is made for the order by a police officer, a complainant or another eligible applicant.
The preliminary hearing must be conducted on an ex parte basis. Subsection 21(6) provides that, if the applicant is a police officer or person introduced by a police officer, the Court may act on the basis of evidence received in the form of an affidavit. Otherwise, the applicant or another witness or witnesses must attend in person, by telephone or by electronic means to give evidence or answer questions.
Section 6 defines when there are “grounds for issuing an intervention order”. It provides:
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 interim intervention order comes into force when it is served on the defendant.[4] Upon service on the defendant, the police officer issuing a police-issued interim intervention order or the applicant for a court-issued interim intervention order is taken to have made an application to the Court for an intervention order and the defendant is taken to have been issued a summons to appear before the Court for the purposes of the hearing and determination of an application for a final intervention order under section 23.[5]
[4] See subsections 18(4) and 21(8) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
[5] See subsections 18(5) and 21(9) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
Subsection 3(1) defines an “interim intervention order” to mean an interim intervention order issued by a police officer under section 18 or the Magistrates Court under section 21.
Final orders
Section 23 provides for a hearing by the Court to determine whether to make a final intervention order. Subsection 3(1) defines a “final intervention order” to mean a final intervention order issued, or interim intervention order confirmed, by the Magistrates Court under section 23. Section 23 empowers the Court to make a final intervention order in either form. In both cases, it is a pre-requisite that an interim intervention order has been issued.
Subsections 23(1) to (3) relevantly provide:
23—Determination of application for intervention order
(1)Subject to this section, on the hearing of an application for a final intervention order, the Court may—
(a)     confirm the interim intervention order issued against the defendant as a final intervention order; or
(b)     issue a final 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.
…
(2)An interim intervention order issued against a defendant may be confirmed as a final intervention order, or a final intervention order may be issued in substitution for an interim intervention order issued against a defendant, in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order or by conditions of bail.
(3)If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds.
Subsection 3(1) defines an “intervention order” to mean an “interim intervention order” or a “final intervention order”.
Revocation or variation
Section 26 provides for revocation or variation of an intervention order. Subsections 26(1), (3), (4) and (5) relevantly provide:
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
(c)     if the defendant or a person protected by the order is a child and there is a State child protection order … in force in respect of the child—the Minister responsible for the administration of that Act; or
(d)     the defendant.
…
(3)An application for variation or revocation of a final 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 a final 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 Commissioner of Police, 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.
An application might be made under section 26 to vary an interim intervention order. However, an application under section 26 to revoke an intervention order will ordinarily only be made in respect of a final intervention order because ordinarily the question whether an interim intervention order should continue will be determined at the hearing under section 23.
Section 15 requires the Court, when issuing a final intervention order, to include a term fixing a date after which the defendant may apply for revocation or variation of the order, which must be at least 12 months after the date of issue of the final intervention order.
It can be seen that the circumstances in which a revocation application may come to be considered are extremely variable. At one extreme, the final intervention order will have been issued after a full contest with findings of fact having been made by the Magistrate after a full hearing. At the other extreme, the final intervention order will have been issued by consent after a police-issued interim intervention order and no findings of fact will have been made. In between, the final intervention order will have been issued by consent after a court-issued interim intervention order at which evidence was given (orally or on affidavit) by the complainant.
Competence of appeal

Subsections 42(1) and (1a) of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act) provide:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
Subsection 3(1) defines a “criminal action” to mean an action or proceeding brought in the criminal division of the Court. Subsection 10(2) provides that the rules may assign a particular statutory jurisdiction (other than one specifically assigned by other legislation to a particular Division) to the Criminal Division of the Court. Rule 4.07 of the Magistrates Court Rules 1992 (SA) (the Magistrates Court Rules) assigns jurisdiction conferred by the Act to the Criminal Division of the Court.
Definition of judgment
The Police contend that the decision by the Magistrate does not comprise a “judgment” within the meaning of section 42 of the Magistrates Court Act. The Police cite the judgment of King CJ in Legal Practitioners Complaints Committee v A Practitioner[6] in which King CJ said:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.
… In the generality of cases, a ruling that an appeal is competent or that the court or judge has jurisdiction to entertain the particular appeal or application before it, is an incidental ruling on a submission made in the course of the hearing and is not made the subject of a judgment or order. It is therefore not appealable. But it may be made the subject of a judgment or order. Whether that has occurred depends upon the treatment of the matter by the court or judge.[7]
[6] (1987) 46 SASR 126.
[7] At 127-128.
The Police contend that the decision by the Magistrate was merely a ruling.
However, section 3(1) of the Magistrates Court Act defines “judgment” to mean:
a judgment, order or decision and includes an interlocutory judgment;
and defines “interlocutory judgment” to include:
(a)an interlocutory order; and
(b)an order or ruling relating to the admissibility or giving of evidence;
This definition greatly expands the generally understood concept of a judgment or order. It not only encompasses a “decision” but also expressly extends to a ruling relating to the admissibility of evidence, which is not a judgment or order as generally understood, and to a ruling relating to the giving of evidence. The decision by the Magistrate was a ruling both as to the giving of evidence and as to the admissibility of evidence. It was a judgment within the meaning of section 42 of the Magistrates Court Act.
The history of section 42 and the definitions of “judgment” and “interlocutory judgment” confirms this construction. Section 42 as originally enacted contained no subsection (1a) and, while it contained a definition of “judgment”, contained no definition of “interlocutory judgment”. That subsection was inserted in 1994 by the Statutes Amendment (Courts) Act 1994 (SA) but it did not contain any of the three provisos now contained in paragraphs (a), (b) and (c).
In 2002, in Police v Dorizzi[8] the Full Court observed that there was no right of appeal against a ruling on admissibility and held that an appeal against a dismissal designed to test an admissibility ruling was contrary to the purposes of the appeal provisions of the Magistrates Court Act despite being against a final judgment. In 2007, in consequence of that decision, subsection (1a) was amended by the Statutes Amendment (Criminal Procedure) Act 2005 (SA) to add the three provisos.
[8] [2002] SASC 356; (2002) 84 SASR 416.
In 2008, in McIlvar v Szwarcbord[9] White J held that an appeal against an admissibility ruling was incompetent. In 2012, in consequence of that decision, subsection 3(1) was amended by the Statutes Amendment (Attorney-General's Portfolio) Act 2012 (SA) to insert a definition of “interlocutory judgment” to encompass a ruling relating to the admissibility or giving of evidence.
[9] [2008] SASC 179; (2008) 256 LSJS 264.
In the second reading speech in respect of the Bill that became the 2012 Act, the Attorney-General said:
Section 42(1a) … was substituted in its present form in 2005, after the decision in Police v Dorizzi (2002), in which the prosecution tended no evidence following a ruling by the magistrate that CCTV tapes of the offence were inadmissible. The Supreme Court held that the prosecution had no right to appeal against that decision. It is clear from the Hansard debates about the 2005 amendment that the amendment was intended to enable the prosecution to make such an appeal, because the evidential ruling destroyed the prosecution case. However, in the case of McIlvar v Szwarcbord (2008), the Supreme Court held that the amendment did not achieve this effect. The Bill proposes to further amend section 3(1) to achieve what the Parliament intended. The new definition of ‘interlocutory judgment’ is designed to make clear that an order or ruling relating to the admissibility or giving of evidence is a judgment and as such is appealable, subject to the constraints on appeal contained in section 42(1a).
Requirement for permission
Section 42(1a)(c) of the Magistrates Court Act provides that generally[10] permission is required to appeal against an interlocutory judgment.
[10] Unless the interlocutory judgment stays the proceeding or substantially weakens the basis of the prosecution case and is likely to lead to abandonment of the prosecution, neither of which is applicable in the present case.
The appellant contends that the Magistrate’s decision is final rather than interlocutory because it is to the effect that the earlier hearing did not comply with the statutory provisions and its legal effect is that the earlier trial was a nullity.
I reject that contention. There is nothing in the Magistrate’s reasons for decision that declares that the trial in March 2020 was a nullity or that the evidence taken in March 2020 is not to be treated as evidence for the purpose of determining the application. Even if the Magistrate had so decided, it would not necessarily have rendered his decision final but there is no need to consider that question.
The Magistrate’s decision falls squarely within the definition of an interlocutory judgment in subsection 3(1) of the Magistrates Court Act. It follows that permission to appeal is required. Permission is required because in many cases it will be undesirable that a hearing be fragmented by interlocutory appeals on such rulings rather than a final appeal against the final judgment.
The Police rightly concede that, if the appeal is otherwise competent, permission to appeal should be granted. The appeal raises an important question generally concerning the process to be followed on an application for revocation when the Court has not made findings at or before the making of the final intervention order. It also raises an important issue affecting the future course of the proceeding and, as the Magistrate observed, the time and cost that will be incurred by both parties in the future course of the proceeding. It is preferable that the process be clarified now rather than after final determination of the revocation application.
I will grant permission to appeal.
Future course of the proceeding
The Magistrate held that, despite the attendant disadvantages to the parties of increased time and cost, it is mandatory under the Act, as construed in G v C, on a revocation application for the Court to hear evidence and determine whether the criteria are established on the evidence for the making of an intervention order as at May or November 2018 (when the interim or final intervention order was issued).[11]
[11] The Magistrate’s reasons do not make it clear whether it is to be assessed when the interim or final intervention order was issued. They tend to suggest that it is when the interim order was issued.
The construction of section 26 adopted in G v C
In G v C,[12] an interim intervention order was issued in June 2016. In November 2016, by consent and with a denial of the grounds, the interim intervention order was confirmed as a final intervention order. In September 2019 the defendant applied for revocation or variation of the intervention order. A Magistrate dismissed the application on the ground that the defendant had failed to establish the threshold criterion that there had been a substantial change in the relevant circumstances since the making of the intervention order within the meaning of section 26(4)(b) of the Act.
[12] [2020] SASC 134.
Peek J held that the Magistrate conflated the power to dismiss a revocation or variation application summarily under subsection 26(4) with the question whether the application should be granted under subsection 26(5) of the Act. Peek J said:
The Magistrate here stated:
… The defendant can bring such an application. However, the test to be applied under s 26, in my view, is a two-step test.
First, the court must be satisfied of a ‘substantial change’ in the relevant circumstances since the order was issued or last varied as envisaged by s (26)(4)(b) [sic s 26(4)(b)].
Secondly, if that test is satisfied, the court must have regard to, if varying or revoking an intervention order under the section, the same matters of [sic as] the court is required to have in [sic] regard to considering whether or not to make an intervention order and in considering the terms of an intervention order. [Emphasis added]
The Magistrate here referred to “the test to be applied under s 26” (which deals generally with applications for variation or revocation) and then purported to delineate a “two-step test” for resolution of all such applications. However, in doing so, his Honour erred in a serious way in that he incorporated what is a summary disposal provision (s 26(4)(b)) into a test which is said to be applicable to the disposition of all applications.
Summary disposal provisions are quite common; they are often couched in terms similar to “frivolous or vexatious”, or may refer to unduly repetitious applications and so on. However, here the legislation provides for a substantial minimum time period for such an application and no one could reasonably suggest that the present application is of the “frivolous or vexatious” variety. The tail is not to wag the dog; the “rule” (or usual disposition) is a full hearing, and the exception to that rule is summary dismissal – not vice versa. If the mandatory 12-month period has elapsed, the usual course is to hold a full hearing.
…
In the present case, the Magistrate did not proceed on the basis that the application was “frivolous or vexatious”. Rather, his Honour thought that if there was apparently no ‘substantial change’ in the relevant circumstances since the order was issued or last varied, then he was required ipso facto to dismiss the application.
With respect, that is not the position...
I therefore consider that the Magistrate misdirected himself concerning the nature of the discretion to vary or revoke the final order.[13]
[13] At [30]-[32], [34]-[36]. (Citations omitted) (Emphasis in original)
The competing constructions of section 26 addressed and determined by Peek J, in the context of an application to revoke a final intervention order,[14] were as follows.
[14] For ease of reference I address only revocation, and not variation, of a final intervention order because that is the only application made by the appellant in the present case. However, the construction of section 26 adopted by Peek J applies equally to an application to vary a final intervention order. Different considerations would apply to an application to vary an interim intervention order but they do not need to be considered in the present case.
The Magistrate had in that case construed section 26 as requiring, as a precondition to revoking a final intervention order, a substantial change in the relevant circumstances since the final intervention order was issued or last varied. On this construction, this precondition would apply both on considering summary dismissal under subsection 26(4) and on an ordinary (as opposed to summary) hearing (which Peek J termed a “full hearing” and I will term a final hearing). In either case, if no such substantial change is demonstrated, the Court would be bound to dismiss the application.
Peek J construed section 26 as providing for a default position of a final hearing at which the ultimate questions for the Court will be whether, as at the date of the final hearing, it is reasonable to suspect that the defendant will without intervention commit an act of abuse against the person and the continuation of the order is appropriate in the circumstances. Section 26(4)(b) merely confers on the Court a discretion to dismiss summarily if there has been no substantial change in the relevant circumstances since the final intervention order was issued. That provision does not oblige the Court to dismiss the application merely because there has been no substantial change. The Court would ordinarily not dismiss the charge summarily unless persuaded that the revocation application has no reasonable prospect of success on the ultimate questions having regard to the fact that there has been no substantial change in the circumstances.
Each party accepts Peek J’s construction of section 26 (although they diverge concerning the implications of that construction) and I proceed on the basis that it is correct and elaborate on its implications below.
The parties’ contentions
It is common ground, that when section 26(5)(b) requires the Court to
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 same matters” are those set out in paragraphs (a) and (b) of section 6, namely whether:
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)the issuing [or in this context ‘continuation’] of the order is appropriate in the circumstances.
It is common ground that these questions are to be asked as at the time when the Court is considering whether to revoke the final intervention order and not as at the time when the final or interim intervention order was issued. The question whether it is reasonable to suspect that the defendant will without intervention commit an act of abuse is a prospective question but, like all prospective questions, must be determined by reference to present evidence and past and present facts in order to predict the future.
The appellant contends that the Magistrate erred in holding that it was mandatory to determine whether, as at the time when the final or interim intervention order was issued, it was reasonable to suspect that the appellant would without intervention commit an act of abuse against the complainant and the issuing of the intervention order was appropriate in the circumstances at the time. The respondent concedes that the Magistrate made this error.
The appellant goes further and contends that evidence of his acts before the making of the interim or final intervention order (as applicable) is irrelevant to the question whether there has been a substantial change in the relevant circumstances since the making of the relevant order or to the questions whether, as at the time when the Court is considering whether to revoke the final intervention order, it is reasonable to suspect that the appellant will without intervention commit an act of abuse against the complainant and the continuation of an intervention order would be appropriate in the circumstances.
The respondent takes issue to a limited extent with this last contention. The respondent contends that, if and to the extent that it is necessary to determine whether there has been a substantial change in the relevant circumstances since the making of the final intervention order, it is necessary to understand what the circumstances were at the time of the final intervention order and accordingly to know what allegations or evidence led to the making of the final intervention order.
Relevance of historical circumstances
As observed above, the circumstances in which a final intervention order is issued can vary from an order made as a result of a contested determination by the Court (a contested final intervention order) to an order made by consent under subsection 23(3) without any judicial determination of the allegations of acts of abuse that founded the making of the interim intervention order (a consent final intervention order).
If a later application is made to revoke the final intervention order, the relevance of the factual circumstances between the complainant and defendant leading to the making of the intervention order including acts of abuse alleged or feared by the complainant (collectively historical circumstances) will vary accordingly.
Revocation application after contested final intervention order
Although not applicable in the present case, it is illustrative to consider the relevance of historical circumstances when a revocation application is made in respect of a contested final intervention order.
In this situation, the Court when making the final intervention order will necessarily have made findings on contested issues whether the defendant committed the alleged acts of abuse against the complainant, whether it is reasonable to suspect that without intervention the defendant will commit an act of abuse against the complainant in the future and whether the issuing of the order is appropriate in the circumstances. These findings will give rise to issue estoppel between the parties in relation amongst other things to the findings about past alleged acts of abuse.
The doctrine of issue estoppel was succinctly stated by Dixon J in Blair v Curran[15] as follows:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion...[16]
[15] [1939] HCA 23, (1939) 62 CLR 464.
[16] At 531.
The judicial determination must be final and conclusive on the merits (as opposed to interlocutory).[17]
[17] Somodaj v Australian Iron and Steel Ltd (1963) 109 CLR 285 at 297-298 per Kitto, Taylor and Menzies JJ; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest; Administration of Territory of Papua and New Guinea v Guba (1973) 130 CLR 353 at 402-403 per Barwick CJ (McTiernan J and Menzies J agreeing) and 453 per Gibbs J (Menzies J and Stephen J agreeing).

A contested intervention order issued by the Court under section 23 of the Act is final and conclusive on the merits for the purpose of the doctrine of issue estoppel. The mere fact that the Court is given power by section 26 to revoke (or vary) a final intervention order does not entail that it is not final and conclusive. A final intervention order operates indefinitely and effectively for the life of the defendant. It is made based on the circumstances existing when it is issued. Those circumstances may well change in the future during the operation of the order. It was therefore essential that the legislature confer on the Court a power of revocation (or variation). This does not entail that the judicial determination made when issuing the contested final intervention order is not final and conclusive.
There is nothing in the Act that evinces an intention that issue estoppel not apply to a contested final intervention order made on the merits.
Subsection 26(4) confers on the Court a discretion to dismiss an application for revocation (or variation) of a final intervention order if it is frivolous or vexatious or no substantial change in the relevant circumstances has been demonstrated. Several observations can be made about that subsection.
First, it does not apply to an application to vary an interim intervention order.
Secondly, although the discretion can be exercised by the Court of its own motion without an application for summary dismissal being made, in practice it may be expected that in most cases the Court will only entertain summary dismissal on such an application. The reference in the subsection to the Court acting “without receiving submissions or evidence from the protected person” refers primarily to submissions or evidence in relation to the subsection 26(5)(b)/section 6 criteria rather than to the subsection 26(4) criteria.
Thirdly, the power to dismiss summarily on the ground that an application is frivolous or vexatious is well known to the law.
Fourthly, the reference in section 26(4)(b) to the “relevant circumstances” is a reference to the circumstances existing when the final intervention order was issued.[18] It is not a reference to the circumstances existing when the interim intervention order was issued. The “relevant” circumstances are the circumstances by reason of which the final intervention order was issued, that is, the grounds for issuing the intervention order under section 6. In the case of a contested final intervention order, these are the past acts of abuse found by the Court, future possible acts of abuse found by the Court and circumstances by reason of which the issuing of the order was appropriate at that time found by the Court.
[18] I ignore the situation where the final intervention order has been previously varied as that did not occur in the present case.
Fifthly, in a case where the Court made findings about past and possible future acts of abuse in making a contested final intervention order, in practice (regardless of section 26(4)(b)) it will be necessary for the defendant to demonstrate that there has, since the making of the final intervention order, been a material change in the circumstances that gave rise to its making. Otherwise, since issue estoppel will preclude the defendant challenging the findings that gave rise to the making of the final intervention order, by definition the circumstances will still be the same and will continue to justify the ongoing operation of the final intervention order.
Sixthly, and consequentially, in such a case, if the Court is affirmatively satisfied that there has been no substantial change in the relevant circumstances, the Court will have no real discretion but to dismiss the application summarily. However, if the Court is merely not affirmatively satisfied at that point that there has been a substantial change, the Court will have a discretion whether to dismiss the application summarily or order that it proceed to a final hearing.
Seventhly, in the case where the Court made findings about past and possible future acts of abuse in making a contested final intervention order, if no application for summary dismissal is made, the matter will proceed to a final hearing. However, for practical reasons, when the matter is heard on the merits, if there has been no material change in the relevant circumstances, by definition the circumstances will still be the same and will continue to justify the ongoing operation of the final intervention order (as opposed to revocation).
Finally, the operation of issue estoppel in relation to a contested final intervention order explains why the legislature included the criterion of no substantial change in section 26(4)(b) for summary dismissal.
Revocation application after a consent final intervention order
The situation is different when a revocation application is made in respect of a consent final intervention order.
Subsection 23(3) provides:
If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds.
The reference in subsection 23(3) to “receiving” evidence is a reference to admitting evidence. There is a distinction between evidence being filed and evidence being admitted. An affidavit is filed when it is accepted by the court for filing and entered into its records. An affidavit is admitted when it is admitted into or received into evidence.
When the interim intervention order was issued by a police officer under section 18 and a final order is issued by consent under this subsection, the Court ordinarily will not have “received” any evidence as to the grounds because there will have been no contested preliminary or final hearing calling for it to be tendered and received. Even though affidavits will usually have been filed for the purpose of a contested hearing, they will ordinarily not be received into evidence if a contested hearing is avoided by a consent order. In this situation the Court will ordinarily not have “received” submissions within the meaning of 23(3) because there will have been no contested preliminary or final hearing calling for submissions to be received.
When the interim intervention order was issued by the Court under section 21 and a final order is issued by consent under this subsection, the Court will have “received” evidence and submissions at the preliminary ex parte hearing under section 21 for the purpose of determining whether to make an interim intervention order. However, they will ordinarily not be received into evidence at the final hearing under section 23 if a contested hearing is avoided by a consent order.
No issue estoppel will arise as a result of a consent final intervention order. As a matter of general principle, res judicata can arise from a judgment by consent and, if the prerequisites can be established,[19] there is no reason why issue estoppel could not also arise from a judgment by consent.[20] However, subsection 23(3) provides for a consent final intervention order when the defendant disputes some or all of the grounds on which the order is sought. This negates any issue estoppel arising.
[19] It may be difficult to decide what issues are necessarily decided by a consent judgment.
[20] See as to res judicata: Kok Hoong v Leong Cheong Kwong Mines Ltd [1964] AC 993 at 1010 per Viscount Radcliffe (delivering the judgment of the Privy Council).
No issue estoppel will arise as a result of an interim intervention order. If issued by a police officer, it is not a judicial determination. If issued by the Court, it is made ex parte and on a provisional and interim basis and is not final and conclusive.
On an application to revoke a consent final intervention order, for the reasons given above, the ultimate questions for the Court will be whether, as at the date of the final hearing of the revocation application, it is reasonable to suspect that the defendant will without intervention commit an act of abuse against the person and the continuation of the order is appropriate in the circumstances. The onus of proof will lie on the defendant to negate grounds for an ongoing intervention order (whereas the onus of proof lies on the applicant for an interim order under section 21 or final order under section 23). The questions will not be whether, as at the date when the consent final intervention order was issued, objectively there were grounds under section 6 to make the order.
On such an application, the scope of the inquiry by the Court will depend on the approach of the parties and the evidence that they seek to adduce. The defendant, being the applicant for the revocation order, might take one of two alternative approaches.
First, the defendant might submit that he or she has never, leading up to or after the making of the interim and final intervention orders, committed acts of abuse against the complainant or any such acts were insufficient to ground a reasonable suspicion that the defendant would without intervention commit a future act of abuse or to render the issuing of an order appropriate in the circumstances. This approach puts in issue the circumstances and alleged acts of abuse before, as well as since, the making of the final intervention order.
Secondly, the defendant might be prepared for the Court to assume (without concession) that the defendant committed pre-intervention order acts of abuse but submit that, whatever the circumstances were at that time, the circumstances are now such that the section 6 criteria for the ongoing operation of an intervention order are not satisfied. This approach is akin to a demurrer in a civil proceeding.
If the defendant adopts the first approach, the applicant for the intervention order (the respondent on the revocation application) is likely to take issue with the defendant’s contentions about the historical circumstances (alleged pre‑intervention order acts of abuse). In that event, the Court will ordinarily need to hear evidence from both parties to make findings concerning acts of abuse before and after the making of the intervention orders because the question whether it is reasonable to suspect that the defendant will without intervention commit a future act of abuse (as at the hearing of the revocation application) will be informed by past events. In this situation, pre-intervention events could not be quarantined as irrelevant.
Conversely, if the defendant adopts the first approach, the applicant for the intervention order might choose not to pursue allegations of pre-intervention order acts of abuse but advance other grounds (such as allegations of post-intervention order acts of abuse or other circumstances) for the ongoing operation of the intervention order under the section 26(5)(b)/section 6 criteria. In that event, the Court will not need to decide whether the previously alleged pre-intervention order acts of abuse, no longer pressed by the applicant for the intervention order, occurred and will not need to hear evidence for that purpose.
If the defendant adopts the second approach, the applicant for the intervention order might choose to take issue with the defendant’s contentions concerning the present circumstances without relying on alleged pre-intervention order acts of abuse. In that event, the Court will not need to decide whether the previously alleged pre-intervention order acts of abuse, no longer pressed by the applicant for the intervention order, occurred and will not need to hear evidence for that purpose.
Conversely, if the defendant adopts the second approach, the applicant for the intervention order might choose to seek to adduce evidence of pre-intervention order acts of abuse to support the ongoing operation of the intervention order. In that event, the Court will ordinarily need to hear evidence from both parties to make findings concerning acts of abuse before and after the making of the intervention order because the question whether it is reasonable to suspect that the defendant will without intervention commit a future act of abuse (as at the hearing of the revocation application) will be informed by past events. In this situation, pre-intervention events could not be quarantined as irrelevant.
In summary, whether the Court will need to hear evidence or make findings about alleged pre-intervention order acts of abuse will depend on the approach of the parties. If it is put in issue by either party and the other party contests it, the Court will ordinarily have no choice but to hear the evidence. I observe that, when the revocation application is made in respect of a consent final intervention order, it may be expected that it will be a rare case in which the Court could summarily dismiss the application under section 26(4)(b).
If the attitude of the parties is such that the Court does not need to make findings concerning pre-intervention order acts of abuse, the Court will still be required to determine whether the circumstances are such as to amount to section 26(5)(b)/section 6 grounds for the continuing operation of an intervention order (the onus being on the defendant as observed above). In making that determination, it will often be necessary for the Court to know the nature of the allegations of pre-intervention order acts of abuse to provide a context for the consideration by the Court of the present circumstances, rendering evidence of the nature of those allegations relevant and admissible for this limited purpose on the revocation occasion.
If the Court determines that evidence of the allegations of pre-intervention order acts of abuse is relevant in this way and the interim intervention order was issued by the Court under section 21 of the Act, the Court could receive on the revocation application evidence of the evidence that was adduced at the preliminary hearing. That evidence would comprise affidavit evidence if affidavits were tendered at the preliminary hearing and/or evidence of the oral evidence adduced at the preliminary hearing (rule 18.05 of the Magistrates Court Rules requires such evidence to be recorded). The evidence would not be admitted (or received) as evidence of the truth of its contents but for the limited purpose of identifying the nature of the allegations made before the making of the intervention order in order to provide context.
If the Court determines that evidence of the allegations of pre-intervention order acts of abuse is relevant in this way and the interim intervention order was issued by a police officer under section 18 of the Act, the Court could receive on the revocation application evidence of the allegations of acts of abuse that resulted in the making of the interim intervention order. Rule 18.01b of the Magistrates Court Rules requires a police officer issuing an interim intervention order to record in writing the factual matters that were the grounds for issuing the order and provide a copy of those grounds to the Court and the defendant. That document could be received on the revocation application as evidence of the allegations of acts of abuse that led to the issue of the interim intervention order. Again, the evidence would not be admitted as evidence of the truth of its contents but for the limited purpose of identifying the nature of the allegations made before the making of the intervention order in order to provide context.
The question who should be dux litis on the final hearing of a revocation application is in the discretion of the Magistrate and will be informed by practical considerations. Given that the defendant bears the onus of proof, the starting point would be that the defendant is dux litis. In the present case, Mr Cunningham’s counsel expressed concern to the Magistrate about proceeding first without knowing what evidence the Police proposed to adduce from the complainant. That concern could potentially be addressed by either directions that the applicant disclose its intentions in this respect or by the defendant adducing evidence in rebuttal. In the present case, depending on the attitudes of the parties, it will be a matter for the Magistrate to consider anew the question who should be dux litis.
Disposition of the appeal
The appeal must be allowed because it is common ground that the Magistrate erred insofar as he held that he was required to determine whether, when the intervention orders were issued, there were grounds for their issue within the meaning of section 6. It is also common ground that the Magistrate erred insofar as he held that further evidence was required to be adduced by both parties as to the existence of pre-intervention order acts of abuse by the defendant towards the complainant.
However, it is not possible to determine on this appeal the future course of the hearing of the revocation application. As explained above, it will depend on the attitude of the parties. It is clear that the defendant wishes to adopt the second alternative course described at [85] above. Based on the submissions by the police prosecutor to the Magistrate and by the Police on appeal, it appears that the Police will adopt the first responsive course described at [88] and not seek to prove on the revocation application pre-intervention order acts of abuse. However, the parties will need to consider the position in light of these reasons for judgment and inform the Magistrate accordingly.
If the parties adopt the course anticipated in the previous paragraph, it will be a matter for the Magistrate to determine whether evidence of the allegations of pre-intervention order acts of abuse contained in the record filed by the Police under rule 18.01b of the Magistrates Court Rules should be admitted (or received) for the limited purpose of identifying the nature of those allegations in order to provide context. For the reasons given above, it would be open to the Magistrate to receive that evidence for that limited purpose.
If it is not agreed, and further evidence is to be adduced, the Magistrate will need to determine which party is to be dux litis. If it is necessary for the Magistrate to make findings concerning the existence of pre-intervention order acts of abuse, the Magistrate should bear in mind the fact that in the hearing to date the appellant was dux litis as well as the general considerations referred to above. If the only further evidence to be adduced is evidence of the allegations of pre-intervention order acts of use contained in the record filed by the Police under rule 18.01(b) of the Magistrates Court Rules for the limited purpose of providing context, no issue as to dux litis will arise.
Orders
I grant permission to appeal. I allow the appeal. I set aside the ruling by the Magistrate. I will hear the parties as to other orders for the disposition of the appeal.