SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GROOM v POLICE (No 3)
[2013] SASC 93
Judgment of The Honourable Justice Sulan
25 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
Appeal against an order of a Magistrate - pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), confirming an intervention order - the appellant had consented to the order pursuant to s 23(3) - whether an appeal from a confirmation order is brought under s 40 or s 42 of the Magistrates Court Act 1991 (SA) - whether a confirmation order is interlocutory in nature - whether the appellant should be permitted to withdraw his consent.
Held: An appeal from a confirmation order is to be brought under s 42 of the Magistrates Court Act 1991 (SA) - a confirmation order is interlocutory in nature - an application to withdraw consent given under s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is similar to an application to withdraw a civil admission - the appellant's consent was given in circumstances where he considered he had no satisfactory alternative - the respondent will suffer no injustice should the appellant be permitted to withdraw his consent - the appellant is permitted to withdraw his consent - appeal allowed - the matter is remitted to the Magistrates Court.
Magistrates Court Act 1991 (SA) s 3, s 10, s 42; Supreme Court Civil Rules 2006 (SA) r 295(1)(a); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3, s 11, s 15, s 21, s 22, s 23, s 23(3), sch 1, s 37; Summary Procedure Act 1921 (SA) s 99AA; Domestic Violence Act 1994 (SA) s 9; Magistrates Court Rules 1992 (SA) r 4.07, referred to.
Grey v City of Marion [2006] SASC 3; De Jong v Police [2010] SASC 191; Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Sanofi v Parke David Pty Ltd (No 1) (1982) 149 CLR 147; Commonwealth Bank of Australia & Ors v Heinrich (No 2) [2004] SASC 436; Van Reesema v Police [2009] SASC 8; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Lutton v Lessels (2002) 210 CLR 333; Harris v Caldine (1990-1991) 172 CLR 84; Sali v SPC Ltd & Anor (1993) 116 ALR 625; Maxwell v Keun [1928] 1 KB 645; Walker v Walker [1967] 1 WLR 327; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566; Bloch v Bloch (1981) 37 ALR 55; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273; Tresize v National Australia Bank…
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- Case
- [2013] SASC 93
- Decision Date
CaseChat Overview and Summary
The court held that an appeal from a confirmation order must be brought under section 42 of the Magistrates Court Act 1991 (SA), as a confirmation order is interlocutory in nature. The court compared an application to withdraw consent given under section 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) to an application to withdraw a civil admission. The court found that Groom's consent was given in circumstances where he considered he had no satisfactory alternative. Additionally, the respondent would not suffer any injustice if Groom was permitted to withdraw his consent. Consequently, the court allowed the appeal and remitted the matter to the Magistrates Court.
Orders
Orders of the court
Held: An appeal from a confirmation order is to be brought under s 42 of the Magistrates Court Act 1991 (SA) - a confirmation order is interlocutory in nature - an application to withdraw consent given under s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is similar to an application to withdraw a civil admission - the appellant's consent was given in circumstances where he considered he had no satisfactory alternative - the respondent will suffer no injustice should the appellant be permitted to withdraw his consent - the appellant is permitted to withdraw his consent - appeal allowed - the matter is remitted to the Magistrates Court.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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