Davies v Protected Person

[2024] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

DAVIES v PROTECTED PERSON

[2024] SASC 49

Judgment of the Honourable Justice Kimber (ex tempore)

27 March 2024

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

This is an appeal against an order of a Magistrate confirming an intervention order as a final intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). This appeal is not the first appeal against the order of the Magistrate. The earlier appeal was dismissed by a single Judge of this Court.

Held:

1.There is no jurisdiction for a single Judge of this Court to hear a second appeal against an order pursuant to s 23 of the Act.

2.      The appeal is incompetent and must be dismissed. 

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21, 23, referred to.

DAVIES v PROTECTED PERSON
[2024] SASC 49

Magistrates Appeal: Criminal

KIMBER J:

1. This is an appeal against an order of a Magistrate on a hearing of an application for a final intervention confirming an interim intervention order as a final intervention order.

2. That order of the Magistrate was made on 30 June 2021 pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act).  For reasons to be given, the appeal before me is incompetent and must be dismissed. 

3. I do not have jurisdiction to hear the appeal, as there has been a previous appeal against the same order with that appeal being dismissed. 

4. For that reason, I will just provide a brief background and reasons. 

   Background

5. The appellant before me, Mr Davies, and the respondent, the protected person, were formerly in a relationship. On or about 9 June 2021, the protected person made an application in the Magistrates Court for an intervention order. Pursuant to s 21 of the Act, on 16 June 2021, a Magistrate made an interim intervention order.

6. The matter was next listed on 23 June 2021.  There does not appear to be any dispute that Mr Davies was present at court and in the courtroom on that day but declined to participate in the proceeding. 

7. The matter was adjourned to 30 June 2021, where Mr Davies was again present but did not identify himself, it appears, as Mr Davies and did not make submissions.  On that day, the interim order was confirmed as a final intervention order. 

   The first appeal

8. In a Notice of Appeal received by the Higher Courts Registry on 19 July 2021, Mr Davies sought to appeal against the order of the Magistrate made on 30 June 2021.  The matter came before Stanley J on Monday 20 September 2021.  Mr Davies did not appear.  He told me today that his absence had something to do with COVID‑19.  Nonetheless, in the absence of Mr Davies, Stanley J dismissed the appeal. 

9. That his Honour made that order is clear from a brief settled ruling that he gave on 20 September 2021 and is confirmed by what is recorded in the record of proceedings certified by the associate.  That record records that the non‑attendance of Mr Davies was proved and that his Honour dismissed the appeal. 

   The appeal before me

10. The proceeding before me involves a different Notice of Appeal which has, in fact, subsequently been amended.  However, that Notice of Appeal in the proceeding before me is also an appeal against the order made by the Magistrate on 30 June 2021. 

    Consideration

11. I am not satisfied that a single Judge of this Court has jurisdiction to hear a second appeal against the same order that was the subject of the appeal which was dismissed by Stanley J on 20 September 2021.

12. There is no jurisdiction for me to hear a second and subsequent appeal with respect to an order of a Magistrate made pursuant to s 23 of the Act. For that reason, the appeal before me is incompetent and must be dismissed.