Neil Trevor Jones v Police No. Scgrg-00-392

[2000] SASC 170

NEIL TREVOR JONES  v POLICE
[2000] SASC 170

Magistrates Appeal:  Criminal

1................ DEBELLE J. (ex tempore)          This is an appeal from a decision of a magistrate refusing to revoke a restraining order which had been made under the Domestic Violence Act 1994. The order was first made on 30 September 1996 as an interim order. It was obtained by the appellant’s wife. A summons was issued to the appellant to show cause why the order should not be confirmed.

1. On 8 October 1996 the matter was adjourned to 22 October to enable the appellant to obtain legal advice. On 22 October 1996 the terms of the order were again varied but the matter was again adjourned because the appellant wished to show cause why the order should not be confirmed.

2. The hearing resumed on 19 November but was adjourned from time to time. The matter was ultimately heard by Mr Gurry SM on 6 March 1997. The appellant was then represented. An order was made by consent confirming the interim order. The endorsement on the file reads, “The defendant wishing to show cause and without admitting the allegations, by consent the ex parte order is confirmed”. As this order had been confirmed, it could only be varied or revoked pursuant to an application made under s 12 of the Domestic Violence Act.

3. On 13 April 2000 the appellant applied for an order to vary or revoke the restraining order. The grounds upon which the application was made appear to be that statements made by the appellant’s wife on 27 September 1996 to three members of the police force in relation to what became the interim order were not relevant to the restraining order. Alternatively, the appellant disputed those statements. The application was heard on 17 April and was refused. The appellant appeals from that decision.

4. The appellant is acting on his own behalf. The only ground set out in the Notice of Appeal reads:

   “The appellant was given no opportunity to present any evidence in the application before Newman SM. The original restraining order was put in place without the appellant having the opportunity to cross-examine the respondent (see comments in transcript by Master Kelly attached).”

The reference to the comments of Master Kelly is explained in this way. The appellant has commenced an action in the Adelaide Magistrates Court claiming damages against his wife for maliciously and without reasonable and probable cause obtaining the restraining order. It seems that in the course of an interlocutory hearing on 18 May 2000 Master Kelly made some observations about the ex parte order obtained on 6 March 1997. He said:

“Well, I mean, the magistrate quite frankly shouldn’t have confirmed the restraining order without evidence. I state that categorically. Confirmation orders are not supposed to be made as a result of compromise. The magistrate is required to be satisfied that the order should be made. That is one proposition that I think I believe to be true but that doesn’t get us anywhere, I suppose.

Because Mr Williams did that, I consented to that, he was deprived of the opportunity to cross-examine his wife to vindicate himself, and it is as simple as that.”

The remarks made by Master Kelly are not entirely correct. It is, I think, open to a party to consent to the confirmation of the original ex parte order, particularly when he is represented at the hearing. In the case of unrepresented parties magistrates will no doubt take care that a person to be bound by the order has a clear understanding of the consequences of the order and that the order should in all the circumstances be made. However, in this case the appellant had legal representation when he appeared before Mr Gurry SM on 6 March 1997. It was open to Mr Gurry SM to make the order. While I understand that the appellant seeks to rely on the remarks of Master Kelly, they are of no avail to him.

1. Section 12 of the Domestic Violence Act prescribes the circumstances in which an application may be made to vary or revoke a restraining order. It is first necessary to obtain the leave of the Magistrates Court to make the application. Leave will only be granted if the court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied. Thus, before he can make the application, the appellant had to obtain leave to do so. He had to satisfy Mr Newman SM that there had been a substantial change in the circumstances since March 1997. It was necessary for him to adduce evidence by affidavit or orally to show how the circumstances had changed.

2. The magistrate’s reasons for refusing the application were as follows:

   “The affidavit that he has filed in support of that application is somewhat difficult to follow.  It does not raise any issues as required by the Act to show that there has been a change in the circumstances.  It seeks to go over again the circumstances surrounding the actual making of the original order.

   I have offered the defendant the opportunity both of giving me further details of what changes have occurred in the circumstances since the making of the order and the opportunity of getting legal advice if he should wish.  He has not explained anything to me at all that has happened since 1997 that amount to a change of circumstances.  The only things he has put to me is that the allegations upon which the original application were based are false and that he has been charged with two breaches of the restraining order, both of which were dismissed.  It would seem that his application at this stage is made in order to get the person for whose benefit this order was made to force her to come before the court to give evidence.  That is precisely why the legislation was changed to stop applications made based on a rehash of the facts surrounding the original restraining order.  The legislation now requires that an applicant in the defendant’s position show that there has been a change in the circumstances before calling upon the other party to have to justify the existence of a restraining order.

   The defendant has failed to show any change in the circumstances since the order was varied, certainly none which would justify granting him leave to issue an application to revoke the order.  His application for leave is refused.”

There is no transcript of the hearing. I have read the affidavit in support of the application. I agree with the magistrate’s remarks. The appellant did not show that there had been any substantial change in the circumstances which justified the making of an order granting leave to make an application to vary or revoke the restraining order. I agree with Mr Newman SM that the appellant has done no more than to seek to contest the circumstances in which the original order was made. That is not the appropriate way to proceed. The appellant had to adduce evidence to prove a substantial change in circumstances. As the appellant has not adduced evidence of that kind, there is no alternative but to uphold the decision of Mr Newman SM and dismiss the appeal. That does not, of course, prevent the appellant from making a fresh application.

1. The order will therefore be appeal dismissed. There will be no order as to costs.