McIntyre v McIntyre
[2009] SASC 120
•8 May 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MCINTYRE v MCINTYRE
[2009] SASC 120
Reasons for Decision of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
8 May 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Appeal - application for permission to appeal to Full Court - applicant sought continuation of ex parte restraining order against respondent - applicant asserted appeal would allow Full Court to give guidance on exercise of discretion of Court to make restraining order, under section 99 of Summary Procedure Act 1921 (SA).
Held: permission refused - application did not identify any important issue of construction or law - no reasonable prospect of success on appeal - no arguable case for miscarriage of justice.
Summary Procedure Act 1921 (SA) s 99, referred to.
MCINTYRE v MCINTYRE
[2009] SASC 120Full Court: Bleby, Gray and Layton JJ
BLEBY J. I agree that permission to appeal should be refused for the reasons give by Gray J.
GRAY J.
This is an application for permission to appeal to the Full Court. The application seeks to review a decision of a Judge of this Court who in turn had dismissed an appeal from a Magistrate.
Allan Maxwell McIntyre, the applicant and complainant, had sought the continuation of an ex parte restraining order against his son, the respondent, Andrew Maxwell McIntyre. The Magistrate at first instance refused to extend the ex parte restraining order concluding:
I do not doubt that is the applicant’s view of matters, and perhaps it is true. The respondent’s view of the relationship and that of some of the other members of the family who appeared in the trial may be that the applicant is the one responsible for the split in the family. As unfortunate as the situation is, I do not consider that gives rise to a reasonable apprehension that unless restrained the respondent may cause personal injury, or damage to property or behave in an intimidating or offensive manner as contemplated by s 99(1) of the Act. I am not satisfied that the making of an order is appropriate.
A Judge of this Court dismissed an appeal against the Magistrate’s decision.[1] The learned Judge conducted a rehearing of the matter in accordance with the Rules of Court and provided extensive and considered reasons for his dismissal of the appeal. The Judge reviewed the Magistrate’s findings and following the rehearing, concluded that not only was there no error demonstrated on the part of the Magistrate, but that he agreed with her findings. The issues agitated on the appeal before the learned Judge were primarily factual issues. The appellant’s submission to the Judge was that relevant matters had been established under section 99 of the Summary Procedure Act 1921 (SA) sufficient to enliven the discretion of the Court to make a restraining order. The Magistrate and the learned Judge on their review of the evidence disagreed.
[1] McIntyre v McIntyre [2009] SASC 62.
The question to be determined by this Court is whether permission to appeal to the Full Court should be granted. In the lengthy written submission filed in support of the application for permission, an extensive review of the facts has been undertaken. The submission includes references to the passages of evidence said to support the contentions advanced. It is complained that the Magistrate and the learned Judge failed to have regard to relevant and probative evidence or failed to give such evidence appropriate weight in reaching their conclusions.
The submission asserts that the appeal would allow the Full Court to give guidance as to the exercise of the section 99 discretion. It was claimed that as a general rule, the discretion to grant a restraining order should be exercised once a complainant proves that actual criminal offences carrying imprisonment have been committed. To put this submission in context, it is necessary to record the terms of section 99:
(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a)there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b)the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a)the defendant follows a person; or
(b)the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c)the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d)the defendant—
(i)gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da)the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e)the defendant keeps a person under surveillance; or
(f)the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
I do not consider that any matter of sufficient importance arises to warrant a grant of permission. The Court’s discretion to make a restraining order under section 99 is enlivened when the two specified preconditions in subsections (1)(a) and (b) have been satisfied. In subsection (2), Parliament has specified the type of conduct giving rise to intimidating or offensive behaviour. I do not consider that the application has identified any important issue of construction or law.
This application seeks permission to review the decision of the learned Judge. His review of the evidence is comprehensive. I do not consider that there is any reasonable prospect of success on the appeal.
The application for permission to appeal should be refused.
LAYTON J: I have had the opportunity of reading the reasons for decision of Gray J in relation to the application for permission to appeal to the Full Court. I agree with his conclusion that permission to appeal should be refused and with his reasons.
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