De Jong v Police

Case [2010] SASC 191

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 191

Magistrates Appeal

GRAY J:

  1. 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

  2. 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. 

  3. 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…

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De Jong v Police [2010] SASC 191
Case
[2010] SASC 191
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CaseChat Overview and Summary

In De Jong v Police, the defendant, Adam Anthony De Jong, appealed against an interim paedophile restraining order made by a Magistrate under the Summary Procedure Act 1921 (SA). The order restricted De Jong from loitering near children and participating in sports activities involving individuals under 18 years old. The appeal centred on procedural concerns regarding the confirmation of the interim order. On 8 April 2009, an ex parte interim order was made by Magistrate Hribal. De Jong opposed this order, arguing it exceeded the powers conferred by section 99AA of the Summary Procedure Act. The appeal did not address the merits of the order's terms, focusing instead on whether the confirmation hearing was properly conducted.

The court had to determine whether the interim paedophile restraining order and the subsequent confirmation order were validly made and whether a full confirmation hearing was undertaken as required by law. The central issue was whether the confirmation hearing was adequately conducted, given that De Jong did not consent to the making of a final order. This raised questions about the nature of the orders—whether they were final judgments or interlocutory decisions that could be subject to further proceedings.

The court examined the legislative framework and the process of confirmation hearings under the Summary Procedure Act. It considered the definition of "judgment" in the Magistrates Court Act, which includes both final and interlocutory judgments or orders. The court referenced High Court decisions, particularly Hall v Nominal Defendant, to determine whether the orders in question finally determined the rights of the parties. The court found that the confirmation order was not validly made because De Jong did not consent to it, and the hearing did not meet the requirements for a full confirmation hearing. Consequently, the court concluded that the order confirming the interim restraining order was erroneous and should be set aside.

The court ordered that the confirmation of the interim paedophile restraining order be set aside, and it directed that the case be relisted for a proper confirmation hearing. The interim order itself remained in effect pending the outcome of the relisted hearing.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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