De Jong v Police
[2010] SASC 191
•2 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DE JONG v POLICE
[2010] SASC 191
Judgment of The Honourable Justice Gray
2 July 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - BEGINNING AND ENDING OF HEARING
Appeal against an interim paedophile restraining order made pursuant to section 99AA of the Summary Procedure Act 1921 (SA) - whether order confirming interim restraining order validly made - whether full confirmation hearing undertaken - whether later order finding that previous order had confirmed interim paedophile restraining order, in error - discussion of legislative scheme - whether interim paedophile restraining order and confirmation order final or interlocutory in nature.
Held: permission to appeal granted - appeal allowed - matter remitted to Magistrates Court for further confirmation hearing - risk that parties misunderstood scope of the hearings - risk that full confirmation hearing not undertaken - paedophile restraining order and confirmation order both interlocutory in nature - confusion as to process constituted "special reasons" to grant permission to appeal.
Summary Procedure Act 1921 (SA) s 99AA, s 99C and s 99F; Summary Procedure (Restraining Orders) Amendment Act 1994 (SA); Statutes Amendment (Paedophiles) Act 1995 (SA); Child Sex Offenders Registration Act 2006 (SA) Pt 3; Magistrates Court Act 1991 (SA) s 3 and s 42, referred to.
McIntosh v Police [2007] SASC 24; Hall v Nominal Defendant (1966) 117 CLR 423; White v Brunton [1984] 1 QB 570; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147; Totani & Anor v South Australia (2009) 105 SASR 244; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408; Dodoro v Knighting (2004) 10 VR 277; Malouf v Malouf (1999) 86 FCR 134; Commonwealth Bank of Australia & Ors v Heinrich (No 2) [2004] SASC 436; Van Reesema v Police [2009] SASC 8, considered.
DE JONG v POLICE
[2010] SASC 191Magistrates Appeal
GRAY J:
This is an appeal against an interim paedophile restraining order made by a Magistrate pursuant to section 99AA of the Summary Procedure Act 1921 (SA).
Background
The matter first came on before a Magistrate on the application of the Police for an interim paedophile restraining order against the defendant and appellant, Adam Anthony De Jong, pursuant to section 99AA and 99C of the Summary Procedure Act.
The Summary Procedure Act provides a mechanism whereby orders may be made restraining individuals from certain activities such as loitering near children or using the internet in a particular manner. The purpose of the provisions containing the relevant powers is the protection of children.[1] The scheme enables interim orders to be made ex parte to immediately curtail the activities of individuals whose actions or history indicate that they present a paedophilic threat. The process by which those interim orders are confirmed allows the individual the subject of the order to challenge the order by showing cause why the order should not be confirmed.
[1] See the remarks in McIntosh v Police [2007] SASC 24 at [17] (Anderson J).
On 8 April 2009 orders were made restraining the defendant from loitering near children and from associating as a sports coach, umpire or scorer with any person under the age of 18 years. The underlying complaint of the defendant related to the breadth of those orders. The defendant ultimately complained that the terms of the order were beyond the powers conferred on the Magistrate by section 99AA of the Summary Procedure Act. However, that underlying complaint was not addressed on the hearing of the appeal as the appeal concerned a procedural complaint. The question that arose for consideration on the hearing of the appeal involved the process of a confirmation hearing before a Magistrate and whether that hearing was fully undertaken. The difficulty occasioned in the present proceeding was the respective understanding of the parties in relation to that process.
On 8 April 2009 Magistrate Hribal made an ex parte interim order:
…restraining the defendant from loitering near children and not to associate as a sports coach umpire or scorer with any person under the age of 18 years old.
The defendant subsequently opposed the order on the basis that it was not properly made and that the terms of the order were beyond the powers of section 99AA of the Summary Procedure Act. On 3 September 2009, following an inter partes hearing on 29 July 2009, a different Magistrate, Magistrate Fahey, purportedly confirmed the interim order and made a further order restraining the defendant:
…from participating in any adult sporting team where children may be present as players or in any other capacity.
At the hearing on 3 September 2009, counsel for the defendant apparently informed the Court that the defendant was not consenting to the making of a final order, and the matter was adjourned to 1 October 2009. On that occasion, counsel for the defendant reiterated that the defendant was not consenting to the making of a final order and the matter was further adjourned for a pre-trial conference.
On 27 November 2009, the matter came on before a third Magistrate, Magistrate Field, for the pre-trial conference. At that time, counsel for the defendant sought a date for trial. That request was refused as Magistrate Field concluded that the interim restraining order had been confirmed by Magistrate Fahey on 3 September 2009, and that Magistrate Fahey was functus officio and that the defendant’s remedy was by way of an appeal.
The Appeal
The notice of appeal lodged on 19 January 2010, appealed against the order of Magistrate Field of 27 November 2009 refusing to set down the matter for trial and finding that Magistrate Fahey’s order of 3 September 2009 had confirmed the interim paedophile restraining order. Following the hearing of the appeal, I granted leave to the defendant to amend the notice of appeal to include a challenge against the order of Magistrate Fahey of 3 September 2009.
I made an order granting an extension of time in which the appeal was to be brought, to the day of the hearing. That extension was not opposed by the Police.
On appeal it was contended that the order of Magistrate Field of 27 November 2009 concluding that the order of Magistrate Fahey of 3 September 2009 had confirmed the interim paedophile restraining order of 8 April 2009, was in error. It was said that the Court file disclosed that the confirmation order of 3 September 2009 was not, and was never intended to be, a final, confirmed, order. In the alternative, it was contended that if the order of 3 September 2009 was a final order, Magistrate Fahey had erred, as the statutory requirements for confirming an order arising under section 99C(6)(b) of the Summary Procedure Act had not been complied with.
The Police conceded the appeal and accepted that it would be appropriate to remit the matter to the Magistrates Court for hearing as to whether there should be a confirmation of the 8 April 2009 interim paedophile restraining order. That concession related to the challenge to the orders of 3 September and 27 November 2009. It was accepted that if the restraining order had not been confirmed by the order of Magistrate Fahey of 3 September 2009, then the order of Magistrate Field of 27 November 2009 was in error. In the alternative, the Police also submitted that if the restraining order had in fact been confirmed, then the order of Magistrate Fahey of 3 September 2009 so confirming the restraining order was in error as the statutory requirements for confirmation had not been complied with.
It is relevant to note that throughout the proceedings the Police maintained their opposition to the defendant’s primary challenge to the validity of the interim restraining order of Magistrate Hribal of 8 April 2009. The Police emphasised their position; that is, that the 8 April 2009 interim restraining order was not beyond the powers contained in section 99AA of the Summary Procedure Act.
On 25 March 2010 I allowed the appeal and set aside the orders made by Magistrate Fahey on 3 September 2009, and remitted the matter for further hearing in the Magistrates Court.
These are my reasons for that decision.
Legislative Scheme
Division 7 of Part 4 of the Summary Procedure Act provides jurisdiction to the Magistrates Court of South Australia to make restraining orders.[2] In 1995 the jurisdiction was enlarged to enable the Court to make paedophile restraining orders.[3]
[2] The Summary Procedure Act 1921 (SA) was amended in 1994 and provisions 99 to 99L inserted by the enactment of the Summary Procedure (Restraining Orders) Amendment Act 1994 (SA).
[3] Statutes Amendment (Paedophiles) Act 1995 (SA).
Sections 99AA and 99C of the Summary Procedure Act outline the process to be undertaken in the making of a paedophile restraining order. Section 99AA(1) provides that on the laying of a complaint, the Court may make a restraining order if the defendant is required to comply with reporting obligations pursuant to Part 3 of the Child Sex Offenders Registration Act 2006 (SA)[4] or alternatively, if the defendant has on at least two occasions been found loitering near children or using the internet to communicate with children or persons the defendant believes to be children, and there is reason to think that the defendant may, unless restrained, again so loiter or so use the internet.[5] The Court must be satisfied that the making of the order is appropriate in the circumstances.
[4] It is apparent that as a consequence of a previous conviction for indecent assault of a child under 17 years old, contrary to section 56(1) of the Criminal Law Consolidation Act 1935 (SA), the defendant had been formally registered pursuant to the Australian Child Sex Offenders Registration Act 2006 (SA) with the associated reporting obligations pursuant to Part 3 of that Act.
[5] Section 99AA(4) of the Summary Procedure Act 1921 (SA) defines loitering for the purposes of section 99AA as follows:
(4)For the purposes of this section, a defendant loiters near children if the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place.
A restraining order under section 99AA may restrain a defendant from loitering near children in any circumstances, or alternatively, loitering near children at or in the vicinity of a specified place, class of place or specified circumstances. Further, the restraining order may impose restraints with respect to a defendant’s usage of the internet and with respect to a defendant’s access to any device that is capable of being used to gain access to the internet.[6]
[6] Summary Procedure Act 1921 (SA) section 99AA(2). Section 99AA(3) of the Summary Procedure Act 1921 (SA) outlines the matters the Court must have regard to, providing:
(3)In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a)whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b)whether there is reason to think that the defendant may, unless restrained, commit a sexual offence against a child or otherwise act inappropriately in relation to a child;
(c)the prior criminal record (if any) of the defendant;
(d)any evidence of sexual dysfunction suffered by the defendant;
(e)any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
(ea)any apparent pattern in the defendant's use of the internet (if any) to contact children;
(f)any other matter that, in the circumstances of the case, the Court considers relevant.
Relevantly, a restraining order may be made in the absence of a defendant on the basis of affidavit evidence, even if the defendant was not summoned to appear at the hearing of the complaint.[7] However in those circumstances, the Court must subsequently summon the defendant to appear before the Court to show cause why the interim order should not be confirmed.[8] If a restraining order is made in the absence of the defendant on the basis of affidavit evidence, the Act requires that the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit, and, if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.[9]
[7] Summary Procedure Act 1921 (SA) section 99C(2).
[8] Section 99C(2) of the Summary Procedure Act 1921 (SA) provides:
(2)A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
[9] Section 99C(3) of the Summary Procedure Act 1921 (SA) provides:
(3)The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a)the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b)if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
A restraining order made in the absence of the defendant will continue in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing.[10] However, such a restraining order will not be effective after the conclusion of the hearing or the adjourned hearing, unless the Court confirms the order either on the failure of the defendant to appear at the hearing, or having considered any evidence given by or on behalf of the defendant, or with the consent of the defendant.[11] The Court may confirm a restraining order in an amended form.[12] If a confirmation hearing is adjourned, the Court may be constituted by a different judicial officer at the adjourned hearing.[13] Section 99F provides that the Court has power to vary or revoke a restraining order following an application to do so.[14]
[10] Summary Procedure Act 1921 (SA) section 99C(6)(a).
[11] Summary Procedure Act 1921 (SA) section 99C(6)(b).
[12] Summary Procedure Act 1921 (SA) section 99C(7).
[13] Summary Procedure Act 1921 (SA) section 99C(8).
[14] Summary Procedure Act 1921 (SA) section 99F.
The Present Proceeding
In the circumstances of the present proceeding, the paedophile restraining order made by Magistrate Hribal on 8 April 2009 was made ex parte on the basis of affidavit evidence. As a consequence, the defendant was subsequently summoned to attend before the Court “to show cause why the order should not be confirmed”. Prior to the matter coming on for a hearing, counsel for the defendant contacted the Court requesting that legal argument be heard in relation to the terms of the order. That argument was heard by Magistrate Fahey on 29 July 2009. The argument before Magistrate Fahey particularly focussed on whether the affidavit evidence led by the Police was evidence of “loitering near children” and thus empowered the making of the restraining order pursuant to section 99AA(1)(a)(ii)(A). Counsel for the defendant argued that although the affidavit material presented to the Court on the making of the interim order indicated that the defendant had been in contact with children, that contact did not constitute loitering near children. It was further said that the terms of the order restraining the defendant from associating as a sports coach, umpire or scorer with any person under the age of 18 years, was beyond power, as that association did not constitute an act of loitering. According to both parties, the argument proceeded on the basis that the evidence in the affidavit would be assumed for the purposes of the legal argument, notwithstanding that the evidence was disputed.
Further argument occurred before Magistrate Fahey on 27 August 2009 and the matter was adjourned to 3 September 2009. As earlier observed, at that time Magistrate Fahey purported to confirm the order of Magistrate Hribal of 8 April 2009 and made the further order restraining the defendant “from participating in any adult sporting team where children may be present as players or in any other capacity.” By affidavit dated 12 March 2010, the defendant’s then legal representative deposed that at this time he informed the Court that the defendant was not consenting to the making of a final confirmation order. Following the delivery of reasons on 3 September 2009, Magistrate Fahey adjourned the matter to 1 October 2009. On that occasion, the matter was set by Magistrate Fahey for a pre-trial conference and adjourned to 27 November 2009. The endorsement on the Court file for 1 October 2009 relevantly records: “Defendant not consenting to final order”. The matter came to its culmination in the Magistrates Court when on 27 November 2009, the request by counsel for the defendant to obtain a trial date was refused by Magistrate Field. The following remarks were recorded on the file:
The endorsements on this file show that this matter was set for trial for legal argument only. The matter was heard by [Magistrate] Fahey [on] 29 July, then returned for judgment on a date to be fixed.
The matter was subsequently called on for 27 August, on which date [Magistrate] Fahey delivered his reasons and confirmed his order, see reasons on file, for some inexplicable reason it has been listed for a pre-trial conference.
I do not understand what the [sic] remains to be debated about this matter at first instance. [Magistrate] Fahey appears to be functus officio, on the matter, the defendant’s remedy lies by way of appeal. I make no further order.
According to counsel for the defendant, the legal argument ventilated with respect to the validity of the paedophile restraining order was not in fact the confirmation hearing, but was rather a preliminary legal point requiring resolution. It was said that all parties, including Magistrate Fahey, were of the understanding that the legal point taken would not lead to the finalisation of the matter and that a confirmation hearing would still be required. This was said to be supported by the fact that the endorsement on the Court file records that the matter was initially set for trial for legal argument only. It was submitted that the manner in which the matter proceeded subsequent to the purported confirmation of the restraining order on 3 September 2009, evidenced that Magistrate Fahey also understood that the full confirmation hearing was yet to be undertaken. Counsel pointed to the fact that following the order on 3 September 2009, at which time counsel informed Magistrate Fahey that the defendant was not consenting to the making of a final order, Magistrate Fahey adjourned the matter to 1 October 2009. As earlier noted, on that occasion, Magistrate Fahey was again informed that the defendant was not consenting to the making of a final order and the matter was adjourned for the pre-trial conference on 27 November 2009. It was said that the actions of Magistrate Fahey in adjourning the matter in this way clearly indicated that he considered that the matter had not yet been finalised.
Counsel for the Police agreed that despite the remarks of Magistrate Fahey providing that he “confirm[ed] the restraining order”, the subsequent adjourned hearings before Magistrate Fahey, the endorsements on the Court file and the correspondence between the parties, suggested that all concerned understood that the restraining order was yet to be finally confirmed. Counsel for the Police submitted that despite the apparent finality of Magistrate Fahey’s remarks, the progression of the matter suggested that Magistrate Fahey in his reasons was expressing the conclusion that the evidence contained in the affidavit amounted to loitering near children and, subject to any dispute about that evidence, was capable of forming the basis for the making of a restraining order. It was said in particular that the endorsement made by Magistrate Fahey on 1 October 2009 referring to there being a lack of consent to a final order, decisively demonstrated that he had not finally confirmed the restraining order. Counsel contended that in these circumstances, the order of Magistrate Field of 27 November 2009 finding that Magistrate Fahey on 3 September 2009 confirmed the paedophile restraining order and was functus officio, was in error.
Counsel for the Police submitted that if Magistrate Fahey on 3 September 2009 did in fact confirm the order pursuant to section 99C of the Summary Procedure Act, that confirmation was in error and the appeal ought to be allowed. This contention was based on the fact that the statutory pre-requisites for a restraining order to be confirmed had not been met. It was pointed out that the Act provides for the presentation of the deponent of the affidavit to the Court to give evidence so that they can be cross-examined. The defendant may also have sought to give evidence in order to show cause for why the order should not be confirmed. Similarly, the defendant may have wished to make submissions regarding the need for the order. It was submitted that those steps were fundamental steps to the confirmation of the order, and their absence warranted the granting of the appeal. Ultimately it was submitted that it was clear that the defendant never intended to consent to the factual findings and as a consequence it was appropriate for the matter to be remitted to the Magistrates Court for further hearing and determination of whether the restraining order should be confirmed.
The Police clarified that despite this concession, the position of the Police was that the question of the meaning of “loitering near children” remained to be argued and determined at the confirmation hearing.
Final or Interlocutory
A preliminary issue arose on the hearing of the appeal with respect to the nature of Magistrate Hribal’s order of 8 April 2009 and that of Magistrate Fahey of 3 September 2009.
Counsel for the defendant contended that the order of Magistrate Hribal “restraining the defendant” and that of Magistrate Fahey confirming Magistrate Hribal’s and “further restraining the defendant” were final orders rather than interlocutory. It was said that the orders represented a final disposition of the defendant’s right to behave in a certain way. No authorities were relied upon to support this submission. However in the alternative, it was said that if the orders were interlocutory in nature, special reasons existed why it would be in the interests of the administration of justice to have the appeal determined and as a consequence, permission to appeal should be granted.[15]
[15] Section 42 of the Magistrates Court Act 1991 (SA) provides:
(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 a preliminary examination).
(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.
Counsel for the Police submitted that the order of Magistrate Hribal of 8 April 2009 was interlocutory in nature. It was said that the process outlined in sections 99AA and 99C providing for confirmation of a paedophile restraining order, demonstrated that an interim restraining order is not final in nature. Counsel contended that the argument with respect to the validity of Magistrate Hribal’s order could be raised on the confirmation hearing. As a consequence, counsel submitted that there was no final determination of the defendant’s rights on 8 April 2009 as a further avenue was open whereby the defendant could show cause why the order should not be confirmed. Counsel for the Police did not make express submissions with respect to the finality or otherwise of Magistrate Fahey’s order of 3 September 2009.
The determination of whether the orders of Magistrate Hribal and Magistrate Fahey are interlocutory or final in nature has significance with respect to the rights of appeal that follow. Section 42 of the Magistrates Court Act 1991 (SA) relevantly provides:
(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 a preliminary examination).
(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.
The nature of the orders has consequent effects on questions of jurisdiction, because where leave to appeal is required the grant of leave goes to jurisdiction.[16]
[16] White v Brunton [1984] 1 QB 570 at 573-574 (Donaldson MR, with whom Fox LJ and Stephen Brown LJ agreed). Although in that case, the approach to the question of the final or interlocutory nature of orders was the “application approach” which has subsequently been out of favour, the following observation of Donaldson MR remains relevant: “…we ought to make it clear that the court in the form of the Civil Appeals Office and the registrar does take points on whether leave to appeal is needed, and occasionally there has been a protest from the parties, “If my opponent does not mind, why should this point be taken?” The answer is that it goes to jurisdiction and the point has to be taken.”
It is relevant to note that “judgment” is defined in section three of the Magistrates Court Act as follows:
Judgment means a judgment, order or decision and includes an interlocutory judgment or order.
The question to be answered in order to ascertain the nature of an order or judgment is whether that order or judgment finally determines the rights of the parties.[17] That test was accepted by the High Court in Hall v Nominal Defendant.[18] In that decision, Windeyer J made the following observations about the determination of the nature of a judgment or order: [19]
... In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation. In Standard Discount Co. v. La Grange Bramwell L.J. recognized this when he said: "There cannot be an order which is neither final nor interlocutory; and therefore if the order before us is not final, it must be interlocutory. Is it a final order? It is like every other order in one sense final, so long as it is not appealed against, but it is not the final order of the Court in the cause". In the same case, Brett L.J. said: "I cannot help thinking that no order in an action will be found to be final unless a decision upon the application out of which it arises, but given in favour of the other party to the action, would have determined the matter in dispute". And later his Lordship, then Lord Esher M.R., adhered to this as "the best rule for determining these questions; the rule which will be most easily understood and involves the fewest difficulties"; and Lopes L.J. agreed: Salaman v. Warner. But it is not a view that has had general acceptance: see Isaacs & Sons v. Salbstein. And it cannot be regarded as of general application because an order in favour of one party to an application may finally determine the dispute between them whereas an order to the opposite effect would not. For example, an order setting aside a jury's verdict and ordering a new trial is clearly interlocutory. But an order refusing a new trial is final: Adams v. Herald and Weekly Times Ltd. A grant of a new trial means that until the new trial be concluded and judgment entered thereupon there is no final judgment in the action, whereas a refusal of a new trial means that final judgment is entered in accordance with the postea at the trial. In that sense it may be correct to say that the question is resolved by looking not at the decision to grant or refuse a new trial but at the consequences of that decision upon the judgment to be entered in the action. The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of "that action" because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. For example, it has been held that a judgment of non-suit is a final judgment, notwithstanding that it leaves the plaintiff at liberty to bring another action for the same cause: Coroneo v. Kurri Kurri and South Maitland Amusement Co. Ltd. A judgment on a demurrer may thus be either final or interlocutory depending upon circumstances: Hope v. R.C.A. Photophone of Australia Pty. Ltd.; John Grant & Sons Ltd. v. Trocadero Building and Investment Co. Ltd. These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties. …
[Emphasis added –footnotes omitted]
[17] Hall v Nominal Defendant (1966) 117 CLR 423 at 443-444 (Windeyer J).
[18] Hall v Nominal Defendant (1966) 117 CLR 423 at 439-440 (Taylor J with whom Owen J agreed), at 443-444 (Windeyer J).
[19] Hall v Nominal Defendant (1966) 117 CLR 423 at 443-444 (Windeyer J).
The approach of the High Court in Hall v Nominal Defendant has been subsequently applied and adopted, both in the High Court[20] and in other jurisdictions.[21]
[20] Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246 at 248; Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153
[21] Totani & Anor v South Australia (2009) 105 SASR 244 at [232]-[235] (White J). The majority of the court in that case, Bleby J with whom Kelly J agreed, expressly declined to resolve the question as to whether the order was interlocutory or final in that case, but did not disagree with the approach taken to the law by White J; See also Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [21]-[33] (Kourakis J); Dodoro v Knighting (2004) 10 VR 277; Malouf v Malouf (1999) 86 FCR 134.
It is clear that where a party has the right to make further application to alter, vary or revoke the order under consideration, that order or judgment is not generally final in nature. In that respect, what is important is the legal rather than practical effect of the order or judgment;[22] even if any such further application is doomed to failure the nature of the order is not changed to that of a final order.[23] This analysis is illustrated by the following authorities.
[22] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248; Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153.
[23] See for example the remarks of Gibbs CJ in Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248.
In Licul v Corney, [24] the High Court held that orders made for substituted service and orders made setting aside those orders were interlocutory orders for the purposes of section 35(1)(a) of the Judiciary Act 1903 (Cth). Gibbs J highlighted that the effect of a final order must be to finally dispose of the rights of the parties and that in the circumstances the order did not do so:[25]
…the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. …
[24] Licul v Corney (1976) 180 CLR 213.
[25] Licul v Corney (1976) 180 CLR 213 at 225.
In Carr v Finance Corporation of Australia Ltd[26] the High Court held that an order refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence, does not finally dispose of the rights of the parties, and was therefore not a final order. Gibbs CJ made the following relevant observations:[27]
…An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken--an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.
I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent.
[Emphasis added – footnotes omitted]
Although the observations of the Chief Justice were made in the context of an order refusing to set aside a default judgment, the matters discussed are equally relevant to the present proceeding.
[26] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246.
[27] Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248. Mason & Murphy JJ both allowed the objection to competency and dismissed the appeal as incompetent.
In Sanofi v Parke Davis Pty Ltd (No 1) the members of the High Court held that an order granting leave to appeal was interlocutory in nature, observing:[28]
There is … a short and conclusive answer to that contention. The Federal Court did no more than grant leave to file and serve a notice of appeal. It is always open to a court which has granted leave to appeal or special leave to appeal to rescind that grant if it later appears to the court, in the light of further information or argument, that the leave or special leave should not have been granted. That course has been taken by this Court in appropriate cases. The order of the Federal Court therefore did not finally dispose of the right of Parke Davis to appeal, or of the right of Sanofi to hold its judgment free of any possibility of appeal, because the Federal Court might, on reconsideration, rescind the grant of leave. It is irrelevant whether or not it is likely that the Federal Court would make an order rescinding the grant of leave, since it is the legal force of the judgment in question, and not its practical effect, that has to be considered in determining whether or not the judgment is a final one. … For those reasons the order of the Federal Court was interlocutory and there was no right of appeal from it to this Court. The objection to competency was accordingly upheld.
[Emphasis added – references omitted]
[28] Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147 at 153 (Gibbs CJ, Stephen & Mason JJ).
Similar remarks were made in Commonwealth Bank of Australia & Ors v Heinrich (No 2)[29] in relation to orders made pursuant to section 39(1) of the Supreme Court Act 1935 (SA) that the defendant be prohibited from instituting further proceedings without leave of the Supreme Court. In that case, Debelle J observed:[30]
On one view, an order made pursuant to s 39(1) constitutes a final order. Such an order will remain in full force and effect until it is either varied or revoked. While the order remains in force, its practical and legal effect is to prevent the person bound by the order from issuing proceedings without leave. Until it is varied or revoked, the order operates in the same way as a final order. Should a court make an order granting or refusing leave to institute proceedings, it will do so in reliance on the order. In other words, the order as made will, until varied or revoked, operate in respect of any attempt by the person bound by the order to institute legal proceedings. An order varying or revoking the order will not be made unless there is a material change in circumstances. These factors all point to the conclusion that the order is a final order.
However, the fact that an order under s 39(1) may be varied or revoked is, I think, a compelling reason for concluding that the order is not a final order. It is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked. For these reasons, I apply the reasoning in Kay v Attorney-General and conclude that an order made pursuant to s 39(1) is interlocutory in nature. It follows, therefore, that Mr Heinrich must obtain leave to appeal.
[29] Commonwealth Bank of Australia & Ors v Heinrich (No 2) [2004] SASC 436.
[30] Commonwealth Bank of Australia & Ors v Heinrich (No 2) [2004] SASC 436 at [15]-[16].
The observations as excerpted demonstrate that where application may be made to vary or revoke the order or judgment, the Courts have generally held such order to be interlocutory in nature.
In the circumstances of the present proceeding, both the interim restraining order of Magistrate Hribal of 8 April 2009 and the purported confirmation of that order by Magistrate Fahey on 3 September 2009, are interlocutory in nature. The interim order, by its very nature is not final. As earlier discussed, the Summary Procedure Act provides for a mechanism by which the initial order may be confirmed, enabling the subject of the order to challenge the order by showing cause why it should not be confirmed. By the provision of such a mechanism, it is apparent that the initial order does not finally determine the rights of the party.
The order of 3 September 2009 purportedly confirming the interim order, is also interlocutory in nature. As earlier noted, section 99F of the Summary Procedure Act provides a process by which a restraining order may be varied or revoked. That section provides:
(1) The Court may vary or revoke a restraining order on application—
(a) by a member of the police force; or
(b) by the person for whose benefit the order was made; or
(c) by the defendant.
(1a)An application for variation or revocation of a restraining order may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
…
(3)The Court must, before varying or revoking a restraining order under this section—
(a) allow all parties a reasonable opportunity to be heard on the matter; and
(b) have regard to the same factors that the Court is required to have regard to in considering whether or not to make a restraining order and in considering the terms of a restraining order.
Having regard to the mechanism provided by section 99F, the earlier referred to observations of Debelle J in Commonwealth Bank of Australia & Ors v Heinrich (No 2) are apposite.
On the one view, a paedophile restraining order made pursuant to section 99C constitutes a final order. That order will remain in full force and effect, curtailing the rights of the subject of the order, until it is either varied or revoked. Until that occurs, the order operates in the same way as a final order, binding the subject of the order in the manner specified by the order.
However, ultimately a paedophile restraining order may be varied or revoked pursuant to section 99F of the Summary Procedure Act. The provision of a process by which the order may be varied or revoked, results in the conclusion that the order is not a final order. As Debelle J observed in Commonwealth Bank of Australia & Ors v Heinrich (No 2): “It is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked”. This conclusion is appropriate notwithstanding the fact that a variation or revocation would generally only occur as a result of a change in circumstances. As the authorities make clear, it is the legal effect rather than the practical effect of the judgment or order that is to be considered. The purported confirmation of the paedophile restraining order by Magistrate Fahey on 3 September 2009 did not constitute a final determination of the parties’ rights. As a consequence, the defendant in the within proceeding requires permission to appeal.[31]
[31] Section 42 of the Magistrates Court Act 1991 (SA).
As earlier noted, pursuant to section 42 of the Magistrates Court Act, an appeal does not lie against an interlocutory judgment unless the 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.
The phrase “special reasons” was considered in Van Reesema where Bleby J made the following observations:[32]
The phrase “special reasons” is not defined in the Magistrates Court Act. It is an expression that “must always be interpreted in light of its context”.[33] Section 42(1a) permits appeals from interlocutory judgments only in limited circumstances. The purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented.[34] If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases.[35] An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.[36]
[32] Van Reesema v Police [2009] SASC 8 at [23].
[33] White v State of South Australia (2007) 96 SASR 581 at [48]; Goldsmith v Newman (1992) 59 SASR 404 at 409.
[34] See, eg, Police v Dorizzi (2002) 84 SASR 416 at [19].
[35] See the consideration of the meaning of “special reasons” in other contexts in, eg, Jess v Scott (1986) 12 FCR 187, 195; Goldsmith v Newman (1992) 59 SASR 404 at 409; White v State of South Australia (2007) 96 SASR 581 at [49] - [50].
[36] See White v State of South Australia (2007) 96 SASR 581 at [49].
I will now turn to a consideration of whether “special reasons” exist to grant permission to appeal in the present proceeding.
The Merits
It is apparent that the matter proceeded with those involved acting under a genuine misunderstanding as to the process being undertaken. It is clear from the Court file that the defendant and his counsel proceeded on the basis that a preliminary legal point was to be argued. However, it is also open from the reasons of Magistrate Fahey to find that he proceeded on the basis that the actual confirmation hearing had been engaged. However, in accordance with the submissions of both parties, there is a real possibility that there was a misunderstanding at the time of the hearings on 29 July and 27 August 2009 as to the scope of the hearing, and a real risk remains that the full confirmation hearing was not undertaken. Having regard to the confusion as to process, there is a risk that a miscarriage of justice has occurred.[37]
[37] As earlier mentioned, the lack of clarity in the process was conceded by the Police.
The confusion with respect to the process undertaken and the associated risk of a miscarriage of justice constitutes “special reasons” to grant permission to appeal under section 42(1a)(c) of the Magistrates Court Act. As was pointed out by Bleby J in Van Reesema, the purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented. However, that limitation does not prevent a Court from granting permission to appeal in appropriate circumstances. In the circumstances of the present proceeding, the risk of a miscarriage of justice can only be cured be ensuring that a full confirmation hearing is undertaken. It is not a case where it can be suggested that the ultimate practical significance of the interlocutory order is not yet known and that an appeal against the interlocutory order at the stage it was instituted was inappropriate.
It was in this context that I made the order on 25 March 2010 allowing the appeal and remitting the matter.
Consequence of the Order Made
It is necessary to note that the order made remitting the matter for a confirmation hearing to take place does not prevent full ventilation by the parties of the arguments as to the validity of the interim restraining order of Magistrate Hribal of 8 April 2009. In showing cause as to why the order should not be confirmed, it is open to the defendant to argue that the interim restraining order of 8 April 2009 was beyond the scope of section 99AA and 99C, and consequently beyond the jurisdiction of the Magistrate. No question of issue estoppel arises.
It is further relevant to comment that in the circumstances of this proceeding, following the order of Magistrate Hribal of 8 April 2009, it was open to the defendant to lodge judicial review proceedings challenging the jurisdiction of the Magistrate in making that order. However that course was not embarked upon and the matter instead was raised as a preliminary point at the confirmation hearing. As earlier observed, the consequence of this process was that ultimately it was unclear whether Magistrate Fahey on 3 September 2009 in confirming the restraining order, was doing so on the preliminary legal point, or had adequately taken into account the entirety of the facts on a full confirmation hearing. This confusion warrants the confirmation hearing to be undertaken afresh.
In the circumstances of the present proceeding it is apparent that the legal point sought to be ventilated with respect to the scope of the order under section 99AA and 99C is a confined argument. Although that argument could potentially be addressed as a distinct preliminary point, in my view, it would be appropriate that the one hearing be held where all matters of fact and law are argued and addressed. The order sought with respect to the jurisdictional question requires an understanding of the factual basis and as a consequence, as I observed when allowing the appeal on 25 March 2010, it is desirable that there be a confirmation hearing in which all issues in contest, both jurisdictional and factual, are addressed.
Conclusion
Permission to appeal is granted. The appeal is allowed. The matter is remitted to the Magistrates Court for a further confirmation hearing.
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