Groom v Police; Groom v State of South Australia
[2017] SASCFC 161
•7 December 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
GROOM v POLICE; GROOM v STATE OF SOUTH AUSTRALIA
[2017] SASCFC 161
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
7 December 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - REOPENING APPEAL
The applicant applies for permission to appeal a judgment of this Court which affirmed a Magistrate’s refusal to revoke an intervention order. The applicant also applies to reopen a Full Court appeal affirming the summary dismissal of his claim for damages against the State.
On 19 October 2011 a domestic violence restraining order was made against the applicant for the benefit of his former partner. In one of numerous proceedings before the Court the applicant consented to the confirmation of that order subject to a number of criminal charges being discontinued. Since that confirmation the applicant has complained that the original restraining order was unlawfully made. Specifically, he now complains that there was no evidence in support of the order and that the Judge did not appropriately investigate the matter as required by statute.
Held per Curiam, refusing both permission to appeal from a single Judge and the application to reopen the Full Court appeal:
1. The application conflates the operation of the Domestic Violence Act 1994 (SA) and the Intervention Orders (Prevention of Abuse) Act 2009 (SA). There was no need for applicant’s former partner to give oral evidence. The domestic violence restraining order was validly made.
2. In addition, the applicant’s claim for damages against the State was summarily dismissed for reasons largely unconnected with the validity of the restraining order.
Domestic Violence Act 1994 (SA) s 7, s 8, s 9; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18, s 20, s 21, s 23, referred to.
Groom v Police [2014] SASC 41; Groom v Police [2017] SASC 21; Groom v State of South Australia [2017] SASCFC 35, discussed.
GROOM v POLICE; GROOM v STATE OF SOUTH AUSTRALIA
[2017] SASCFC 161Full Court: Kourakis CJ, Nicholson and Hinton JJ
THE COURT: Mr Groom has brought two applications before the Full Court. The first is an application for permission to appeal from a judgment of Vanstone J upholding an order in the Magistrates Court dismissing Mr Groom’s application to revoke an intervention order (the Magistrates appeal).[1] The second is an application by Mr Groom pursuant to r 242 of the Supreme Court Civil Rules 2006 (SA) (SCR 242) to reopen the judgment of the Full Court in Groom v State of South Australia (the civil action)[2] on an appeal brought by Mr Groom against the summary dismissal of an action brought by him against the State of South Australia. In that action Mr Groom claimed damages for the wrongful conduct of the State’s employees and officers in relation to the subject intervention orders. We would dismiss both applications for the following reasons.
[1] Groom v Police [2017] SASC 21.
[2] Groom v State of South Australia [2017] SASCFC 35.
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.
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.
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.[3] Mr Groom applied for, and was refused, permission to appeal to the Full Court.
[3] Groom v Police [2014] SASC 41.
In December 2014 Mr Groom was convicted of contravening a term of the intervention order.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Mr Groom’s application pursuant to SCR 242 was brought on before this Court on 31 October 2017. On that occasion the Magistrates Court file (the Court file) with respect to the intervention order was before the Court and was shown to Mr Groom and counsel for the State.
The Court file contains a complaint laid before the Magistrates Court in writing by Steven Bradfield, a member of the police force, and an affidavit of Miss Butler sworn on 14 October 2011 which in general terms supported the making of an intervention order pursuant to s 4 of the DV Act.
At the time, s 7 of the DV Act provided that complaints may be made by a member of the police force or by a person against whom the behaviour that forms the subject matter of the complaint has been, or may be, directed. Section 8 provided the complaint may be made by telephone if the complainant was a member of the police force or a person introduced by a member of the police force who establishes that person’s identity. Section 9(3) of the DV Act provided that the Court may make an order on the basis of evidence received in the form of an affidavit on condition that the deponent appear personally at the proceedings for confirmation of the order to give oral evidence if a defendant so required. Section 9(6) of the DV Act continues an order so made in the absence of the defendant until the conclusion of the hearing to which the defendant is summoned or any adjourned hearing.
The application for an intervention
In the case of Mr Groom, the complaint was laid before the Magistrates Court in writing by Steven Bradfield, a member of the police force.
Clause 37(1) of Schedule 1 of the IO Act (clause 37(1)) provides that any domestic violence restraining orders which were extant at the time of its enactment remained in force as if they were an intervention order issued under the IO Act. The restraining order against the appellant was in effect converted to an interim intervention order made pursuant to s 21 of the IO Act. To understand the effect of that deeming provision it is necessary to briefly refer to the preceding provisions of the IO Act.
Section 18 of the IO Act provides that an interim intervention order may be issued administratively by a police officer if it appears to that police officer that there are grounds for issuing the order and the defendant is present before the police officer or in custody. An intervention order so issued by a police officer comes into force against the defendant when served personally on him or her. The interim intervention order also operates, by force of s 18(5) of the IO Act, as a summons to appear in Court on an application for an intervention order.
Section 20 of the IO Act provides that a police officer, or a person against whom it is alleged the defendant may commit an act of abuse, may make an application to the Court for an intervention order.
Section 21 of the IO Act provides that on an application for an intervention order in which an interim intervention order has not been issued by the police, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear.
Section 21(6) of the IO Act provides that the Court may issue an interim intervention order on the basis of an affidavit if the application is made by a police officer or a person introduced by a police officer, but in such a case the deponent must be available for cross-examination at the proceedings for the final determination of the matter.
The restraining order made against Mr Groom can only be deemed to be an interim intervention order made by the Magistrates Court following a hearing held pursuant to s 21 of the IO Act. The restraining order made against Mr Groom was never an interim intervention order issued by a police officer because no such police power was conferred on police by the DV Act. The restraining order must therefore be taken to be an intervention order made on an application by a police officer pursuant to s 21 of the IO Act. Moreover, clause 37(1) deems the domestic violence restraining order to be an intervention order, and not merely an application for one, made pursuant to s 21 of the IO Act. When the domestic violence restraining order came before the Magistrates Court on 22 February 2012 and again on 10 December 2013, there was, therefore, no need to embark on an enquiry of the kind prescribed by s 21(1) of the IO Act.
Even if treated as a mere application, the application not being made by telephone or electronically, the Magistrate would have been entitled to act on Ms Butler’s affidavit. The Rules of the Magistrates Court relevant to the IO Act provide that at the return of an interim intervention order issued by a police officer, the Court will hear evidence about the factual matters that were the grounds for granting the order.[4] The Rules also provide that if a defendant contests any factual matter, or the confirmation of the order, any evidence given on the first return will be treated as evidence-in-chief and further evidence and cross-examination allowed on a later date.[5] Different rules apply to applications by a police officer and a private application. A private application is one made by a prospective protected person. Separate forms are provided. Rule 18.05 provides that an application to the Court for an intervention order must be supported by evidence which may consist of an affidavit or oral evidence.
[4] Magistrates Court Rules 1992 (Criminal) (SA), r 18.03.
[5] Magistrates Court Rules 1992 (Criminal) (SA), r 18.03(b).
Pursuant to s 23 of the IO Act the Court may confirm an interim intervention order issued by a police officer against the defendant as a final intervention order or issue a final intervention order in substitution for an interim intervention order.
Section 23(3) of the IO Act provided at the relevant time:
23 Determination of application for intervention order
…
(3) If the defendant disputes some or all of the grounds on which the final intervention order is sought but consents to the order, the Court may confirm or issue the order without receiving any further submissions or evidence as to the grounds.
It follows that on 10 December 2013 the interim intervention order against Mr Groom was validly confirmed pursuant to s 23(3) of the IO Act.
We understand Mr Groom’s complaint to be that when the application for a restraining order came before the Magistrate in 2011 oral evidence should have been taken from Miss Butler. Mr Groom’s application conflates the operation of the DV Act and the IO Act. The DV Act made no provision for an interim restraining order to be made by the executive or ministerial act of the police officer. A restraining order, including an interim restraining order, could only be made by the Magistrates Court on which application the Court could act on affidavit evidence. That is what happened in this case. The procedures envisaged by the IO Act and, the Rules with respect thereto made by the Magistrates Court, are applicable to those cases where an interim order is made by a police officer. Accordingly there is, as Mr Groom has asserted, no transcript of any evidence-in-chief given by Miss Butler in the Magistrates Court file on the occasion that the interim order was made. There was no need for any such examination.
For the above reasons there is no merit in Mr Groom’s application for permission to appeal against the judgment of Vanstone J and no reason to reopen the judgment of the Full Court in the civil proceedings. Moreover, the summary dismissal of Mr Groom’s civil action was made on grounds largely unconnected to the status of the intervention order. The civil proceedings were dismissed because there was no reasonable basis for Mr Groom’s claims that:
·SAPOL and the DPP owed him a duty of care;
·he had suffered any harm as a result of the conduct alleged on the part of the Department of Correctional Services (DCS) or that that conduct impaired his capacity to defend himself in the legal proceeding related to the intervention order;
·the Magistrate’s orders were actionable;
·he was unlawfully imprisoned because his imprisonment was pursuant to an order of a court;
·he was a victim of malicious prosecution because material facts supporting his claim had been pleaded.
The grounds on which Mr Groom relies in both applications are unarguable.
We dismiss the application for permission to appeal against the decision of Vanstone J on the Magistrates appeal and the application to re‑open the civil action.
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