Groom v Police
[2021] SASCA 1
•22 January 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GROOM v POLICE
[2021] SASCA 1
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice of Appeal Doyle and the Honourable Justice of Appeal Livesey)
22 January 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS
Application for permission to appeal against the judgment of Justice Lovell in the Supreme Court of South Australia in relation to the dismissal of an application for revocation of an intervention order.
Held per the Court:
1. The application for permission to appeal is dismissed.
2. The matter is referred to the Attorney-General for consideration as to whether an application under s 39(1) of the Supreme Court Act 1935 (SA) should be made.
Supreme Court Act 1935 (SA) s 39(1), (2), referred to.
Groom v Police [2020] SASC 167; Groom v Police; Groom v State of South Australia [2017] SASCFC 161; Groom v Police [2014] SASC 41, considered.
GROOM v POLICE
[2021] SASCA 1
COURT OF APPEAL: Kelly P, Doyle and Livesey JJA
THE COURT: The applicant has filed an application for permission to appeal from a judgment of Lovell J[1] upholding the decision of a Magistrate on 26 May 2020 to dismiss an application for revocation of an intervention order.
[1] Groom v Police [2020] SASC 167.
The applicant contends that the intervention order, which was made on 19 October 2011 and confirmed in the Magistrates Court on 10 December 2013, is invalid and should be revoked.
The applicant contends that both the Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order is invalid and should be revoked.
The new and compelling evidence sought to be relied on by the applicant was said to be that the failure of the court records to reveal any complaint by the original complainant raises a question as to whether the Court acted with lawful authority when originally making the ex parte intervention order on 19 October 2011. The applicant contends that in previous hearings, and in particular, the hearing before the Full Court in December 2017,[2] the Court did not have the benefit of viewing the court file and thus ascertaining the true basis of the evidence within the file.
[2] Groom v Police; Groom v State of South Australia [2017] SASCFC 161.
The applicant also submits that ‘the court file shows evidence of interference and Spoilitation wthin [sic] the court file making it fatally flawed’.
The matter has an extensive history. Regrettably, it is necessary to set out some of that history, which demonstrates that the current application is fundamentally misconceived.
The most convenient summary of the history of this matter is contained in Groom v Police; Groom v State of South Australia.[3] In that judgment, the Full Court dismissed the applicant’s application for permission to appeal against a judgment that upheld the dismissal of his application to revoke an intervention order. For convenience, we set out the history recorded therein:
[3] [2017] SASCFC 161.
[2]The intervention order was originally made in the form of a domestic violence restraining order pursuant to the Domestic Violence Act 1994 (SA) (the DV Act) on 19 October 2011. On 9 December 2011 the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the IO Act) came into effect. On 11 December 2011 Mr Groom was arrested for allegedly assaulting his former partner and breaching the intervention order. On 15 February 2012 he was taken into custody on further charges.
[3]On 22 February 2012 Mr Groom consented to the confirmation of the interim intervention order. On 23 August 2012 he was convicted of the December 2011 assault. In February 2013 Mr Groom’s appeal against that conviction was allowed. In June 2013 his appeal against the confirmation of his intervention order was also allowed. All matters were remitted to the Magistrates Court.
[4]On 10 December 2013 Mr Groom appeared before a Magistrate on an application by the protected person to confirm the intervention order and on 31 charges including 12 counts of contravening a condition of an intervention order, 12 counts of breach of bail, six counts of breaching a domestic violence restraining order and one count of aggravated assault. On that day the criminal charges were discontinued on Mr Groom’s consent to the intervention order being confirmed. Notwithstanding his consent, Mr Groom again appealed against the confirmation of the intervention order to a single Judge of this Court. The appeal was dismissed on 21 March 2014.[4] Mr Groom applied for, and was refused, permission to appeal to the Full Court.
[4] Groom v Police [2014] SASC 41.
[5]In December 2014 Mr Groom was convicted of contravening a term of the intervention order.
[6]On 16 June 2016 Mr Groom filed an application in the Magistrates Court to revoke the intervention order. The stated ground of the application was that ‘the order made on 19 October 2011 was unlawful’. On 20 June 2016 the application was adjourned to allow Mr Groom to file an affidavit deposing to any change in circumstances on which he relied. On 29 June 2016 Mr Groom filed an affidavit alleging that the intervention order was irregularly or unlawfully obtained but he did not depose to any change in his personal or any other circumstances. On 30 June 2016 the application was set down for a pre-trial conference on 31 August 2016.
[7]On 31 August 2016 the pre-trial conference was adjourned to 19 October 2016. The Court’s record of the proceeding on 19 October 2016 demonstrates that the matter was adjourned to 30 November 2016 for a pre-trial conference.
[8]On 26 October 2016 a police officer filed an affidavit which recited the litigation history of the invention order and deposed to a conversation with the protected person, Ms Butler, who asserted that there had been no change in circumstances and that she wished the order to continue.
[9]Notwithstanding the record of 19 October 2016, it is clear that the application was heard and determined on its merits on 30 November 2016 when the Magistrate dismissed the application. The Magistrate’s reasons confirm that on that day he received the affidavits and heard submissions on the application to revoke. The Magistrate noted that Mr Groom relied on alleged irregularities in the confirmation of the intervention order but that Mr Groom also correctly observed that his appeal to the Supreme Court against that order had been dismissed. The Magistrate dismissed the application to revoke the intervention order on the ground that Mr Groom had not adduced any evidence of any change in circumstances. The Magistrate’s reasons do not record any application that he disqualify himself nor any protest by Mr Groom that he was not prepared to argue the substance of the matter.
[10]Mr Groom appealed to this Court against the dismissal of the revocation order. On 23 February 2017 Vanstone J dismissed his appeal. Vanstone J observed that Mr Groom had appealed on 14 grounds which her Honour summarised as follows:
· many merely stated matters of history;
· there were complaints that the Magistrate failed to order an investigation into the matters relating to the confirmation of the intervention order alleged in the applicant’s affidavit;
· the police prosecutor who appeared on the application to revoke was not given an opportunity to tell the Magistrate that he was sympathetic to the application to revoke;
· the Magistrate should not have heard the application to revoke the intervention order because he had previously recused himself from hearing another of Mr Groom’s matters.
[11]An affidavit of the prosecutor who appeared before the Magistrate was received by Vanstone J. The affidavit confirmed that Mr Groom made submissions on 30 November 2016 reiterating the content of his affidavit which alleged irregularities and unlawfulness affecting the original intervention order. Her Honour noted that Mr Groom accepted on the appeal that he did not request the Magistrate disqualify himself.
[12]Vanstone J observed that the material before the Magistrate showed that Mr Groom’s case for revocation was based on the contention that the intervention order should never have been made. Vanstone J correctly observed that there was no utility in an investigation of those matters because Mr Groom had consented to the order and it was affirmed on appeal to this Court. It followed that the Magistrate did not err in failing to investigate the matters of which Mr Groom complained.
[13]Indeed, we observe that insofar as the application to revoke was based on issues finally determined against Mr Groom by the Full Court of this Court, it was an abuse of process.
[14]Vanstone J dismissed the ground alleging bias because Mr Groom made no application that the Magistrate disqualify himself and because, in any event, there was no material establishing good reason for recusal on the application to revoke the intervention order, whatever reason there might have been for the Magistrate not to sit in the other matter.
[15]Vanstone J dismissed the remaining grounds because in the absence of any evidence of any change in circumstances the application to revoke was bound to fail.
[16]On 21 July 2017 Mr Groom filed an interlocutory application for permission to appeal the decision of Vanstone J which, among other things, applied to have the full file relating to the original intervention order from the Magistrates Court placed before the Full Court on the application for permission to appeal. By this time Mr Groom had inspected that file and alleged that it contained no evidence on which the intervention order could have been made.
[17]On 27 September 2017 Mr Groom’s application was heard by Kourakis CJ. At that hearing Mr Groom refined his application such that he only sought permission to add a ground of appeal that there was no evidence to support the making of the interim restraining order. Mr Groom was granted permission to so amend his notice of appeal.
[18]On 11 October 2017 Mr Groom filed an interlocutory application in the civil action seeking to have the judgment of the Full Court set aside on the ground that there had been a miscarriage of justice. In a supporting affidavit Mr Groom explained his grounds for that application and elaborated on his complaint, relevant to both matters before us, that there was no evidence to support the intervention order, as follows:
3. I make this application on the grounds that on the 30th May 2017 I attended the Port Adelaide Magistrates court Registry to inspect the Court file MCPAD 11-6004 which is an application for a DVO and the centre of My claim for damages against the State Of South Australia SCCIV 15-1455
4. Upon inspecting the court file MCPAD 11-6004 on the 30th May 2017 I found that there was no evidence on file to support the original application for the DVO (no evidence in Chief) therefore meaning that the Magistrate Court Rules (1992) 18‑01A to 18-29 and Domestic Violence Act (1994) rules 7-9 had not been complied with.
5. The fact that there was and is no Evidence in Chief attached to the court file Means that there could have been no Lawful authority in any of the charges and incarcerations placed against Me.
6. As there is no lawful authority then it follow that there can be no defence to my claim for damages.
7. My reasons for not inspecting the court file earlier are;
(a)I had received advice that the responsibility for the establishment of the grounds to issue the DVO lies with the Prosecution and the Magistrate as in normal circumstances the Defendant is does [sic] not view the court file.
(b)The prosecution failed to supply any brief before or in any of the trials/applications to have the Interim Restraint order Revoked (December 2011 February 2012, June 2012 November 2012 January 2013 May 2013, September 2013, and December 2013 and June 2016) or respond to my requests for their evidence in support of the DVO such as who applied for the DVO, police or a private person.
(c)The registry in August 2013 refused me access to the court file but filed to advise me I could view it.
8. The failure of the court to ensure that the proper Procedural law had been followed in in breach of the Magistrates Court Act making the application for the DVO a nullity, and denying me natural Justice.
Notwithstanding the decision of the Full Court, the applicant again applied to a Magistrate to revoke the order that was made on 10 December 2013. It was the refusal of that application that brought the application for permission to appeal before Lovell J, who correctly refused the application.
Not only do we agree with the reasons of Lovell J for refusing the application for permission, but it is also apparent from the foregoing that the time has come to consider the application of s 39 of the Supreme Court Act 1935 (SA), which relevantly states as follows:
39—Vexatious proceedings
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b) an order staying proceedings already instituted by that person.
(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3)An order under this section remains in force (subject to variation by the court)—
(a) if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs);
(b) if no such period is fixed—until revocation of the order.
(4)Where an order is made under this section, a copy of the order must be published in the Gazette.
(5)For the purposes of this section, proceedings are vexatious—
(a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b) if instituted without reasonable ground.
(6)In this section—
prescribed court means—
(a)the Supreme Court; or
(b)any other court of the State; or
(c)the South Australian Employment Tribunal; and
(d)any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.[5]
[5] Groom v Police [2013] SASC 49; Groom v Police [2014] SASC 41; Groom v Police [2014] SASCFC 125, Groom v Police (2015) 252 A Crim R 332; Groom v Police [2017] SASC 21; Groom v Police [2017] SASCFC 161; Groom v Police [2020] SASC 167.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.
In our view, the time has come for this Court to request the Attorney-General to consider whether there are proper grounds for an application to be made under s 39(1) of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant.
Accordingly, we would dismiss the application for permission to appeal and order pursuant to s 39(2) of the Supreme Court Act 1935 (SA) that the matter be referred to the Attorney-General for consideration as to whether an application under s 39(1) should be made.
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