Department of Human Services (Cth) v Fitzpatrick - [2018] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DEPARTMENT OF HUMAN SERVICES (CTH) v FITZPATRICK
[2018] SASC 180
Judgment of The Honourable Chief Justice Kourakis
30 November 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE
Appeal against the dismissal of an application for a non-party intervention order by a Magistrate in the Adelaide Magistrates Court. The appellant sought an intervention order pursuant to s 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the IO Act) prohibiting the respondent from assaulting, threatening, harassing or intimidating its workers at different Human Service office locations throughout South Australia.
The Registrar of the Court did not accept the application for filing and invited the appellant to provide reasons in support of its filing. The application and supporting materials were ultimately rejected for filing following an oral application. The Magistrate found that the intervention order attempted to protect a class of persons rather than an individual person and dismissed the application.
The appellant appeals on two grounds. The first ground contends that the Magistrate erred in holding that the protected person or persons must be a particular individual or individuals and not a class of persons, the members of which may change from time to time. The second ground contends that the Magistrate erred in refusing to admit into evidence the affidavit sworn 6 July 2018 by Mr Robinson, filed in support of the intervention order application.
Held, per Kourakis CJ, allowing the appeal:
1. An intervention order which identifies a class of persons by reference to objective readily apparent characteristics properly ‘identifies’ the persons protected by the order for the purposes of s 18(3) and s 21(7) of the IO Act. An application for an intervention order which can be so expressed is an application for the purposes of the Act (at [28]).
2. The intervention order application be received by the Registrar of the Adelaide Magistrates Court and proceed to a hearing in the ordinary way (at [34]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3, s 6, s 12, s 18, S 20, s 21, s 23; Magistrates Court Rules 1992 (Criminal) r 18.20, referred to.
Police v Giles [2013] SASC 11, considered.

DEPARTMENT OF HUMAN SERVICES (CTH) v FITZPATRICK
[2018] SASC 180
Magistrates Appeal: Criminal

KOURAKIS CJ: This is an appeal against the dismissal of an application for an intervention order by a Magistrate in the Adelaide Magistrates Court. The appellant is the Commonwealth Department of Human Services (the Department). The Department sought an intervention order prohibiting the respondent, Mr Allan Fitzpatrick, from assaulting, threatening, harassing or intimidating its workers at different Human Service office locations throughout South Australia.
Section 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the IO Act) relevantly provides:
20—Application to Court for intervention order
(1)The following persons may make an application to the Court for an intervention order:
(a) a police officer;
(b) a person against whom it is alleged the defendant may commit an act of abuse or a suitable representative of such a person given permission to apply by the Court;
…
(4)A single application relating to the same defendant may be made by any number of persons.
(Underlining added)
The Department appeals on two grounds.
First, it is contended that the Magistrate erred in holding that the protected person or persons must be a particular individual or individuals and not a class of persons, the members of which may change from time to time.
The second ground is that the Magistrate erred in refusing to admit into evidence the affidavit sworn 6 July 2018 by Mr Shane Robinson, an employee and representative of the Department, filed in support of the intervention order application. The second ground was not pursued on the appeal because it was accepted that if the appeal were successful on the first ground, the matter should be remitted to the Magistrates Court and that, on that remittal, further material may be filed and relied upon. On the other hand, if the appeal on the first ground failed, the admissibility of the affidavit was moot.
Background
Mr Fitzpatrick suffers from schizophrenia and receives a disability support pension. The Department alleges that, on many occasions since 2011, Mr Fitzpatrick has been physically aggressive towards its workers and poses an ongoing risk them.
On 15 October 2017 the Department implemented a Managed Services Plan (MSP) which restricted Mr Fitzpatrick’s access to Human Service office locations. From 15 October 2017 to 10 October 2018 he was fully restricted from face to face contact and telephone contact. The MSP required him to interact with various office locations by written communication only.
The Department alleges that the police have been called to provide assistance on occasions on which Mr Fitzpatrick has breached the MSP.
The Intervention Order Application
On 6 July 2018 the appellant attempted to file an application for an intervention order in the Adelaide Magistrates Court. The application sought a non‑domestic abuse order prohibiting Mr Fitzpatrick from assaulting, threatening, harassing or intimidating the Department’s workers (which were collectively described as the Protected Persons) in 24 specified suburban and regional offices.
The application also sought ancillary orders that Mr Fitzpatrick:
4.Contact or communicate with the Protected Persons directly or indirectly in any way (including by telephone) except:
(a)     In writing by mail to Medicare Services, GPO Box 9822, Adelaide, SA 5001;
(b)     In writing by mail to Centerlink, Reply Paid 7800, Canberra BC, ACT 2610; or
(c)     In writing by fax to 1300 786 102.
5.Enter or remain within 50 metres of the boundary of the Protected Persons place of work, namely the DHS Locations.
6.Damage or interfere with the premises where the Protected Persons work, namely the DHS Locations.
…
The Registrar of the Adelaide Magistrates Court did not accept the application for filing and invited the Department to provide reasons in support of its filing.
On 13 July 2018, the Department wrote to the Registrar of the Adelaide Magistrates Court providing reasons in support of the filing of the application and requesting that the matter be dealt with by a Magistrate pursuant to r 18.20 of the Magistrates Court Rules 1992 (Criminal).
The Department included the following:
1.     The Department submits that:
(a) pursuant to section 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (Act) it is reasonable to suspect (based on the information stated in the Application and accompanying Affidavit) that the Defendant will, without intervention, commit an act of abuse against a worker of the Department; and
(b)     the Defendant poses a serious imminent risk to the health and safety of Department workers and it is therefore in the public interest to ensure the Application is brought before a Magistrate.
2.There is no section, rule or authority (in the Act, the Rules nor any other applicable legislation or case law) that requires each individual protected person to be specified in the Application.
3.The purpose of a ‘protected person’ being identified in an application for an intervention order is so that it is clear to a defendant (and to the Police, should there be a breach of an order), the persons in relation to whom the defendant’s conduct is restrained. This purpose if satisfied in this case as the terms of the intervention orders sought by the Department are limited to workers in connection with their work for the Department whilst undertaking their duties at Service Centres. The locations of the Service Centres are clearly stated in the Application.
4.The Department was successful in obtaining a restraint order against an aggressive customer in the Tasmanian Magistrates Court (Action number 90268/2018) on 28 February 2018 in similar circumstances, whereby:
(a)     the Department was granted leave by the Tasmanian Magistrates Court to make the application in its own right, as a ‘third party’;
(b)     the ‘persons to be protected’ were successfully named in the application as ‘workers of the Department of Human Services’;
(c)     the application was supported by contemporaneous written incident reports completed by the relevant frontline staff (or their direct manager) at the time of the incident; and
(d)     all Department workers were only identified in evidence by their employee ID and staff names were redacted from incident reports.
The circumstances of that case are analogous to this Application and there are no relevant differences in the applicable statutory regime.
5.The Department, on behalf of the Commonwealth, has legal capacity to make an application for an intervention order pursuant to:
(a)     section 7(2) of the Act which states that an intervention order may be issued for the protection of a person even if that person is not the application for the order and the application is not made on his or her behalf;
(b) section 20(1)(b) of the Act which states that an application for an intervention order may be made by a suitable representative (with permission of the Court) or a person against whom it is alleged a defendant may commit an act of abuse; and
(c)     the Judiciary Act 1903 (Cth) and the Crown Proceedings Act 1992 (SA) which enables the Commonwealth to bring proceedings in its own right.
6.Section 20(4) of the Act contemplates that a single application may be made for the protection of a number of persons. If the Application is granted, we note that either a single order or multiple orders may be made pursuant to section 7(3).
7.As multiple workers of the Department are at risk of abuse, it is more efficient that the Application be brought by the Department than each of those workers individually. The Department is also better resources and able to bring an Application than any of the individual workers involved.
8.The Defendant may not already be aware of the names of the relevant workers of the Department and to name them personally in the Application could expose them to a greater risk of abuse than is currently the case.
9.Rule 5.01 of the Rules provides that ‘it is sufficient compliance with these Rules, as to the form of any document, if the document is substantially in accordance with the Form’. The Application is substantially in accordance with the prescribed Form and therefore, for the reasons stated above, should be accepted for filing by the Registry.
The matter was heard on 1 August 2018 on which date permission to file the application was refused.
In reasons which were delivered on 22 August 2018, the Magistrate concluded:
To determine the first ground in s 6, on my reading of the legislation I must be satisfied on the basis of admissible evidence that there is reason to suspect that Mr Fitzpatrick will without intervention commit an act of abuse against a person (my emphasis). The current application seeks to protect an unspecified number of unnamed persons, some of whom are not yet employed, but will become employees at some future unknowable date. This application in truth seeks to protect a ‘class of persons’.
The appeal
The Department’s essential submissions were as follows:
·Section 21(7) of the IO Act provides that an intervention order must identify the protected person(s). However, s 21(7) does not specify how this is to be done, in particular it does not specify that the protected person(s):
-       must be identified by name; or
-       cannot be identified as a ‘class of persons’.
·The purpose of a protected person being identified in an application for an intervention order is to ensure a defendant (and regulators such as the police should there be a breach of an intervention order) is aware of the person(s) in relation to whom he or she (here Mr Fitzpatrick) is restrained. In the present matter, this purpose is satisfied as the terms of the intervention order sought by the Department are limited to workers in connection with their employment with the Department whilst undertaking duties at the specified locations in the application.
·In circumstances where Mr Fitzpatrick:
-       does not know the names of each of the Department’s workers proposed to be a ‘protected person’ under the application; and
-       only identifies the Department’s workers through their employment with the Department the proposed protected persons are appropriately identified as ‘Workers of the Department of Human Services’ in the application.
·To require each protected person to be named individually, in the circumstances identified in the paragraph above, could expose them to a greater risk of abuse than is currently the case. Such a construction of the IO Act goes against its object to ‘assist in preventing domestic and non-domestic abuse’ and its principles. In this regard, the welfare and personal autonomy of the proposed protected persons in the application need to be of paramount consideration as made clear in Police v Giles.[1]
[1]    Police v Giles [2013] SASC 11.
Mr Fitzpatrick submitted:
·It is accepted that s 20(4) of the IO Act contemplates that a single application against the same defendant can be made for the protection of a ‘number of persons’.
·While Mr Fitzpatrick also accepts that it is possible in theory for a (clearly delineated) class of people to be afforded the protection of an intervention order, and there is authority that such orders can extend protection to (named) third parties in addition to the express complainants; Mr Fitzpatrick does not concede that s 21(7) of the IO Act can afford protection through an intervention order, to any class of people however described, when the individuals within it are not readily identifiable as such, by reference to that class description.
·Many of the Department’s staff proposed to be a ‘protected person’ under the application have never had, nor will have any knowledge, contact or interaction with Mr Fitzpatrick.
·Mr Fitzpatrick submits that the application is outside Parliament’s intention and as such is brought in error.
Consideration
It is convenient to refer to some further provisions of the IO Act.
A protected person is defined by s 3 of the IO Act to be a person for whose protection an intervention order is issued.
The grounds for issuing an intervention order are prescribed by s 6 of the IO Act. The necessary and sufficient grounds for the issuing of an intervention order are:
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)the issuing of the order is appropriate in the circumstances.
Section 12 sets out the prohibitions which may be included in an intervention order. Most obviously, an intervention order may prohibit the defendant from contacting, harassing, threatening or intimidating the protected person. An intervention order may also prohibit the defendant from being in the vicinity of premises at which a protected person resides or works, or in the vicinity of specified premises frequented by that protected person. Importantly, s 12(1)(e) of the IO Act allows for an order prohibiting the defendant from intimidating any other person at a place where the protected person resides or works.
Section 18 of the IO Act authorises a police officer to issue an interim intervention order. Section 18(3) of the IO Act prescribes the following necessary elements of an interim intervention order:
(3) An interim intervention order issued by a police officer must—
(a)     be in a form approved by the Commissioner of Police; and
(b)     identify the defendant and the persons protected by the order; and
(c)     specify the prohibitions and requirements imposed by the order; and
(d)     require the defendant to appear before the Court at a specified time and place (within 8 days after the date of the order or, if the Court will not be sitting at the place within that period, within 2 days after the Court next commences sitting at the place).
The Magistrates Court may also issue an interim intervention order on an application made directly to it. Section 21(7) of the IO Act prescribes the necessary elements of an interim intervention order issued by the Court and they include the identification of the defendant and the persons protected by the order.
Pursuant to s 23 of the IO Act the Magistrates Court may confirm, vary or revoke an interim intervention order. It follows that a final intervention order must also contain the elements prescribed for an interim intervention order and, therefore, relevantly to this appeal, the identity of the protected person or persons.
It is axiomatic that an intervention order must identify the protected person by reference to whom the conduct of the defendant is controlled and regulated. The issue on this appeal is whether it is necessary to do so by naming, or otherwise identifying an individual or individuals by characteristics peculiar to them, or whether it is permissible to identify the protected persons by reference to a class, the members of whom may change from time to time.
The answer to the issue ultimately must be found in both the text and the purposes of the legislation. The remedial purposes of the IO Act is plain enough. It is to protect persons from abuse. A defendant’s abusive conduct will commonly be directed towards a particular individual or individuals who can be identified by name. That is not always the case, as the circumstances of this case show. Hostility to social, religious, political or sporting institutions, or to providers of medical, legal or governmental services, is unfortunately not uncommon. Persons involved in those activities are no less in need of protection than individuals who have the misfortune to have had a personal relationship with a person who has become abusive. There is no reason to think that they were not also within Parliament’s contemplation. Those contextual considerations support the conclusion that persons may be identified by reference to common characteristics, that is, by their membership of a class.
On the other hand, the orders must be clear and certain enough to be obeyed by Mr Fitzpatrick and to be capable of enforcement. It is matter of substantial importance that a breach of the order attracts the imposition of a criminal penalty. An intervention order must identity the protected person or persons with sufficient certainty to allow a defendant to readily comply with the order, and for the Court to determine with certainty whether or not the order has been breached. Importantly too, the practical protection of the community depends on the ability of police officers to determine on the face of the order, and the circumstances apparent to them when their assistance is requested, whether or not the order has been breached.
Those competing considerations can be accommodated. An intervention order which identifies a class of persons by reference to objective readily apparent characteristics properly ‘identifies’ the persons protected by the order for the purposes of s 18(3) and s 21(7) of the IO Act. An application for an intervention order which can be so expressed is an application for the purposes of the IO Act.

To a large extent, the order proposed and sought by the Department meets that requirement. In the ordinary case, the Department’s employees will be recognisable from their presence in the Department’s offices and by their conduct whilst in those offices. However, there may be persons present in those offices whose employment status might not be obvious. True it is that it is a proposed condition of the intervention order that Mr Fitzpatrick not enter or remain within 50 metres of the Department’s offices. However, certainty as to the identity of the protected persons is necessary in the event that Mr Fitzpatrick were to breach the geographical boundary, whether intentionally or accidentally, and enter within 50 metres of a Departmental office.
The nature of the relationship between persons and the Department, and whether it is one which can be characterised as an employment relationship, may sometimes require investigation and may not be readily apparent. The orders sought by the Department are therefore uncertain in some respects. However, the uncertainty can be removed by relatively minor amendments. For example, the order might prohibit the respondent from harassing or intimidating any person who is within or inside a Departmental office. The fact that those persons might also include customers, or people conducting other business in the office, is of no consequence. It will be remembered that an order prohibiting a defendant from harassing others in the vicinity of a protected person is expressly allowed by s 12(1)(e) of the IO Act.
Similarly, the non‑communication order sought by the Department could be modified to provide that Mr Fitzpatrick not call a certain telephone number or numbers or use a particular email address. That would obviate the need to anchor the non‑communication order sought, and set out in [29] above, to a person whose status as a worker might not be obvious. The non‑communication order so expressed, however, would plainly protect the class of persons in need of protection, being Departmental workers, because it is those workers who answer the specified telephone service or read the incoming emails to that address.
Finally, I observe that the Department brought the application claiming to be a suitable representative of the protected persons but offered no evidence as to whether consent was given by those persons. I do not wish to suggest that the consent of every existing member is necessary. Evidence of a broad consultation, or at least a notification process, may be sufficient. In this case, the general support which the application would attract from the Department’s workers is obvious enough. However, in some cases, some members of a proposed class may wish to be excluded. It suffices to say that attention should generally be given to these issues.
Conclusion
The Department’s intervention order application properly sought an order with respect to persons even though they were identified as members of a class. The orders sought, with appropriate amendments, could satisfy the requirements of certainty.
I would therefore allow the appeal. I would order that the intervention order application be received by the Registrar of the Adelaide Magistrates Court and proceed to a hearing in the ordinary way.