Shahin v El-Shafei; El-Shafei v Shahin

[2018] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

SHAHIN v EL-SHAFEI; EL-SHAFEI v SHAHIN

[2018] SASC 167

Judgment of The Honourable Justice Parker

6 November 2018

MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY

MAGISTRATES - ORDERS AND CONVICTIONS - COSTS

MAGISTRATES - HEARING - PROCEDURAL FAIRNESS AND NATURAL JUSTICE

This judgment deals with two separate appeals. Dr Ayman El-Shafei has appealed against the setting aside by a Magistrate of an interim intervention order against Mr Hatem (Tim) Shahin. There is also an appeal by Mr Shahin against the dismissal of his application for costs by Deputy Chief Magistrate Dr Cannon, in respect of the unsuccessful application by Dr El-Shafei for an intervention order.

Held, per Parker J, dismissing Dr El-Shafei’s appeal against the decision to set aside the interim intervention order and upholding Mr Shahin’s appeal against the dismissal of his application for costs:

1.  The Court has power to grant permission for an interlocutory appeal if it is satisfied that there are special reasons why that would be in the interests of the administration of justice.  The significant questions of law that arise in this case constitute special reasons (at [44]-[48]).

2.  An applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order, such as an interim injunction (at [76]-[85]).

3. The requirements of s 26 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) do not operate to preclude the Court from exercising its powers under s 76A of the Summary Procedure Act 1921 (SA), where that is considered necessary to deal with an injustice (at [86]-[112]).

4.  The approach adopted by the Magistrate was open to her, given the concern that had arisen about the factual basis for the issue of the interim intervention order (at [116]-[118]).

5.  If there was any real risk of unfairness to Dr El-Shafei, an adjournment should have been granted (at [125]-[126]).

6.  The Magistrate provided Dr El-Shafei with ample opportunity to address the Court as to the reliability of the information that he had provided (at [127]-[129]).

7.  The Deputy Chief Magistrate did not have sufficient information on which to reject the costs application made by Mr Shahin (at [136]-[140]).

Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 5, 6, 8, 20, 21, 22, 23, 26, 28; Fences Act 1975 (SA); Survey Act 1992 (SA) s 52; Summary Procedure Act 1921 (SA) ss 76A, 76B, 189C; Supreme Court Civil Rules 2006 r 288; Magistrates Court Act 1991 (SA) ss 3, 42; Magistrates Court Rules 1992 (SA) r 4.07; Police Act 1998 (SA) s 5; Shop Trading Hours Act 1977 (SA) s 5, referred to.
Groom v Police (No 3) (2013) 231 A Crim R 1; Police v Macintosh [2009] SASC 253; Police v Clayton-Smith (2010) 107 SASR 261; Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; House v The King (1936) 55 CLR 499; Walker v Eves (1976) 13 SASR 249, applied.
O, GL v Police [2016] SASC 73; Commonwealth Bank of Australia v Heinrich (No 2) [2003] SASC 436; van Reesema v Police [2009] SASC 8; Marley-Duncan v Police [2015] SASC 146; Thakur v Police (2016) 125 SASR 180; Cook v Galloway (2015) 124 SASR 444; Aristocrat Technologies Australia Pty Ltd v Allam (2016) 90 ALJR 370; Police v Franco [2008] SASC 268; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; South Australia v Slipper (2004) 136 FCR 259, considered.

SHAHIN v EL-SHAFEI; EL-SHAFEI v SHAHIN
[2018] SASC 167

Magistrates Appeal:         Civil

1. PARKER J:          This judgment deals with two separate appeals. Dr Ayman El‑Shafei has appealed against the setting aside by a Magistrate of an interim intervention order against Mr Hatem (Tim) Shahin.  There is also an appeal by Mr Shahin against the dismissal of his application for costs in respect of the unsuccessful application by Dr El-Shafei for an intervention order.

   Background

2. Dr El-Shafei and Mr Shahin live in the same street at Burnside.  The numbering in that street does not follow the conventional pattern whereby odd numbers appear on one side of the street and even numbers on the other side.  Dr El-Shafei lives at number 19 with his wife and two children.  Mr Shahin owns both number 17 and 18.  Number 18, being the property adjacent to the residence of Dr El-Shafei, is occupied by the sister of Mr Shahin while he occupies number 17. 

3. For several years there has been considerable friction and ill-feeling between Dr El-Shafei and Mr Shahin.  These issues apparently arise from disputes about the location of the boundary between number 18 and number 19, a fencing dispute and a dispute about the trimming or removal of trees from the boundary area.  There have been allegations and counter allegations of threatening and abusive conduct and use of CCTV to view and record activities on the adjacent property. Dr El-Shafei has also alleged that he was assaulted by Mr Shahin and suffered an injury to his wrist as a result.  The police have charged Dr El-Shafei with an offence relating to damage that he allegedly caused to the boundary fence.  That prosecution is being conducted in the Magistrates Court. 

4. I stress that the various allegations made by the parties to these appeals have not been properly tested in Court. This judgment proceeds on the basis that the allegations have been made rather than that they have been proven. In deciding these appeals it is not necessary to consider whether any or all of the allegations are true.

5. Because three different Magistrates made decisions relevant to these appeals, I will refer to them by name so as to avoid confusion.

   Chronology

   ·February-November 2017 – correspondence occurs between the parties about matters which were later relied upon in the subsequent police application for an intervention order.

   ·9 November 2017 – a police application for an intervention order proceeds before Magistrate Duncan.

   ·23 November 2017 – Magistrate Duncan dismisses the police application for an intervention order.

   ·8 January 2018 – Dr El-Shafei files a private application for an intervention order.

   ·16 January 2018 – Dr El-Shafei’s application for an intervention order proceeds ex parte before the then Deputy Chief Magistrate, Dr Cannon.  An interim order was granted.

   ·23 January 2018 – the application for a final intervention order proceeds before Magistrate Sheppard.  Two hearings were conducted on the same day.  The interim order was revoked and the matter referred back to Dr Cannon for further hearing.

   ·1 March 2018 – matter listed before Dr Cannon.  Through his solicitors, Dr El-Shafei seeks and is granted an adjournment.

   ·20 March 2018 – matter again listed before Dr Cannon.  Once again, through his solicitors, Dr El-Shafei seeks and is granted an adjournment.

   ·18 May 2018 – Dr Cannon declines to award costs in favour of Mr Shahin.

   ·8 June 2018 – Mr Shahin files a notice of appeal against the refusal of his costs application by Dr Cannon.

   ·29 June 2018 – Dr El-Shafei files a notice of appeal against the revocation by Magistrate Sheppard of the interim intervention order.

   ·12 July 2018 – a second amended notice of appeal was filed on behalf of Dr El-Shafei.

   ·5 September 2018 – a third amended notice of appeal was filed on behalf of Dr El-Shafei.

   Comment is required upon the several notices of appeal. A notice of appeal was filed on behalf of Dr El-Shafei on 29 June 2018 and the filing fee paid at that time. That notice incorrectly described Dr El-Shafei as the respondent and Mr Shahin as the appellant. It was not served upon Mr Shahin. A second notice was filed on behalf of Dr El-Shafei on 12 July 2018 with the parties being correctly identified. Apart from the latter correction, the second notice was identical to the first. The third notice was filed the day before the appeal hearing but not provided to Mr Shahin’s legal representatives until the morning of the hearing. The third notice seeks to widen the grounds of appeal.

   The several hearings before the Magistrates Court

   Dismissal of police application for an intervention order on 23 November 2017

6. In her ruling dated 23 November 2017, Magistrate Duncan stated that she had taken into account the affidavit evidence, the oral evidence and the recording of an incident that had occurred on 14 September 2017.  Her Honour noted that the evidence referred to two primary incidents that had occurred in August 2017 and September 2017.  These disputes had occurred against the background that I have referred to above.  The recording of the incident on 14 September 2017, in the view of Magistrate Duncan, reflected poorly on both Dr El-Shafei and Mr Shahin.  Dr El-Shafei gave evidence suggesting that the incident on 14 September 2017 had resulted in permanent ligament damage to his arm that affected his work as a surgeon.  Her Honour also noted that police had been called to the properties on more than one occasion.

7. Magistrate Duncan noted the statement by Dr El-Shafei in his oral evidence that there had been no difficulties with Mr Shahin since the incident on 14 September 2017.  The boundary dispute had been resolved through the engagement of surveyors.  Police had not laid any charges against Mr Shahin in relation to the complaint of assault made by Dr El-Shafei.

8. Magistrate Duncan concluded that in view of the recent resolution of the boundary dispute, the lessening of tensions over the last two months, and there being no incidents after the police attendance on 14 September 2017, she was not satisfied that the threshold test in s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the IO Act) was satisfied. In other words, it was not reasonable to suspect that the defendant would, without intervention, commit a future act of abuse against Dr El-Shafei and that the order was otherwise appropriate. Magistrate Duncan dismissed the application but noted that this did not preclude a further application should the situation escalate in the future. There has been no appeal against the decision to dismiss the police application.

   Grant of an interim intervention order on 16 January 2018

9. On 8 January 2018, Dr El-Shafei applied for an intervention order on behalf of himself, his wife and his two children, then aged 20 and 15 years respectively.  The application was supported by a letter dated 7 January 2018 that was annexed to his affidavit and apparently intended to be incorporated into the affidavit.  Copies of email messages and other correspondence were also annexed to the affidavit. Some of the messages and correspondence were dated after the hearing before Magistrate Duncan on 9 November 2017, but other material clearly dated from late 2016 and early 2017.  It became important later that some material was not dated.

10. Dr El-Shafei asked that his application be considered in conjunction with the previous application made by the police as he did not believe the Magistrate had all the evidence from the police before her and nor did her Honour have the medical evidence relating to the wrist injury that was allegedly caused by Mr Shahin.  He also stated “it is my belief that Her Honour did not have the rest of [the] photographic evidence, email evidence etc.” 

11. Dr El-Shafei also alleged that after the dismissal of the police application on 23 November 2017, Mr Shahin had “recommenced his intimidation and bullying campaign personally and through his solicitor.”  He alleged that Mr Shahin had erected a fence without council approval and without following the Fences Act 1975 (SA). He complained that Mr Shahin had caused the removal of 11 established trees on the boundary.

12. A further matter raised by Dr El-Shafei was that Mr Shahin had lodged a complaint about him with the Australian Health Practitioner Regulation Agency (AHPRA).  The complaint had been dismissed by AHPRA on 4 December 2017 as it did not have jurisdiction with respect to neighbourhood disputes.

13. Dr El-Shafei complained that Mr Shahin was monitoring his property with CCTV cameras and, through his solicitors, had declined to remove the cameras or redirect them. He asserted that he and his family live in constant fear of Mr Shahin.  He claimed that Mr Shahin had indicated that his behaviour would not stop until Dr El-Shafei and his family move out or are bankrupted.  Dr El‑Shafei also alleged that Mr Shahin had threatened to rape his wife and daughter “previously” and had repeated such threats after the dismissal of the police application.

14. The application made by Dr El-Shafei came before the Chief Magistrate, Dr Cannon, on 16 January 2018.  Although the application form completed by Dr El-Shafei originally sought an order on behalf of his wife, the reference to her was struck from the form (whether by Dr El-Shafei or another person) and not pursued. Dr Cannon also indicated that because the children had not been threatened or abused an order could not made to protect them. 

15. Dr El-Shafei referred in his evidence to a photograph taken by a CCTV camera on Mr Shahin’s property that had been sent by Mr Shahin to AHPRA.  Dr El-Shafei also gave evidence about several other photographs that were taken from his property which showed Mr Shahin making an offensive gesture which Dr Cannon described as a “one‑fingered salute”.  Dr Cannon questioned Dr El‑Shafei about a letter sent to him by the solicitors for Mr Shahin dated 16 November 2017.  The letter primarily dealt with issues relating to the boundary fence and cypress trees.  Dr Cannon asked Dr El-Shafei what was meant by the words in the solicitors’ letter “… in respect of inappropriate behaviour that we have set out in separate correspondence”.  Dr El-Shafei in response made reference to issues surrounding trees.  Dr Cannon then asked “[h]ave there been any other complaints from them about your behaviour”.  Once again, Dr El-Shafei did not answer that question but instead referred to issues about trees and fences.  Dr Cannon did not persist with his questioning about the issue.

16. Dr Cannon made an interim intervention order in favour of Dr El-Shafei and against Mr Shahin.  The matter was then listed for hearing on 23 January 2018.  Dr Cannon indicated that Mr Shahin could be expected to defend the matter and would probably be legally represented.

    Hearing before Magistrate Sheppard on 23 January 2018

17. Dr El-Shafei’s application for a final intervention order came before Magistrate Sheppard on 23 January 2018.  Dr El-Shafei appeared in person while Mr ML Abbott QC (Mr Abbott) appeared for Mr Shahin.  Mr Abbott applied for the interim order to be dismissed.  He tendered a book of documents in support of that application.  Mr Abbott submitted that there had been deliberate concealment by Dr El-Shafei of documents which put the matter in a completely different light.

18. The book of documents tendered on behalf of Mr Shahin comprised the material that Dr El-Shafei had put before Dr Cannon on 16 January 2018 and also a number of other documents which pre-dated that hearing but were not provided to the Court on that occasion. 

19. The material that Dr El-Shafei had not provided to the Court on the previous occasion included two letters sent to him on 26 October 2017 by the solicitors for Mr Shahin.  One of those letters referred to the fact that notice had been given to Dr El-Shafei by Mr Shahin under the Fences Act in August 2017. The letter noted that Dr El-Shafei had rejected the proposed work without proposing a suitable alternative. The letter also alleged that Dr El-Shafei had removed a surveyor’s mark contrary to s 52(1) of the Survey Act 1992 (SA). Such conduct was an offence. The letter concluded by inviting Dr El-Shafei to reconsider the fencing proposal. If the proposal was not accepted Mr Shahin had given instructions to issue proceedings in the Magistrates Court.

20. The second letter from Mr Shahin’s solicitors dated 26 October 2017 set out a series of accusations concerning the conduct of Dr El-Shafei.  Amongst other matters the letter alleged that Dr El-Shafei had made accusations of trespass against Mr Shahin after having given consent for the latter to enter his property to remove a tree.  There were also allegations that Dr El-Shafei had used a camera to film Mr Shahin or his sister while they were on their own property and that he had threatened legal proceedings without proper cause.  There were also allegations that Dr El-Shafei had made racist comments about Mr Shahin, his culture and his family. There was also an allegation that he said to Mr Shahin that he wanted to slit his throat.  The letter also noted that Mr Shahin had found it necessary to call the police because of the conduct of Dr El-Shafei.  The letter concluded with what was clearly an indication that Mr Shahin may apply for an intervention order against Dr El-Shafei.

21. A third letter dated 13 December 2017 sent by Mr Shahin’s solicitors to Dr El-Shafei was also included in the documents tendered by Mr Abbott.  This letter alleged that abusive and threatening conduct by Dr El-Shafei had not ceased and was escalating.  The letter stated that on 7 December 2017, Dr El‑Shafei had kicked and damaged a panel of the fence erected between the respective properties.  The police had been called and Dr El-Shafei had been reported for his conduct.  The letter also alleged that on 8 December 2017 Dr El‑Shafei had loitered on the boundary and thrown grass in the direction of Mr Shahin’s property, and on the same day gestured obscenely with his middle finger towards the wife of Mr Shahin.  There was also a suggestion that on or about 10 December 2017 he had parked a car so as to cause annoyance.  The letter concluded with a further warning that Mr Shahin would take legal action, including pressing criminal charges, if Dr El-Shafei continued to threaten, intimidate or cause harm to Mr Shahin and his family.

22. Mr Abbott submitted that as a result of Mr Shahin’s solicitors’ threatening legal action Dr El-Shafei had initiated “a pre-emptive strike”. Mr Abbott also submitted that Dr El-Shafei had deliberately misled Dr Cannon by failing to include all relevant material in his application.  Mr Abbott submitted that because an application for an interim intervention order is heard ex parte an applicant is under a duty to provide all relevant material.

23. Magistrate Sheppard gave Dr El-Shafei two opportunities to respond to the allegations that he had not included all relevant correspondence in his application and that he had been untruthful in his answers to the questions asked by Dr Cannon.  Dr El-Shafei asserted that he had been asked by Dr Cannon about the correspondence from 26 October 2017 that had not been included with his application.  Dr El-Shafei stated “it was agreed that that [the correspondence] will be produced during the trial.”  In fact, the transcript does not record any such agreement.  Dr El-Shafei denied receiving the letter dated 13 December 2017.  He did not deny receiving the letters of 26 October 2017. I note that he engaged in significant email correspondence about the fencing issues raised in one of those letters.  Dr El-Shafei denied giving misleading answers to Dr Cannon.  His response to the suggestion that the photographs showing Mr Shahin give him the “one‑fingered salute” had been taken in September or October 2015 was that he thought they may have been taken in 2016. However, that is the year before the dismissal of the police application by Magistrate Duncan.

1. On several occasions during the hearing before Magistrate Sheppard, Dr El‑Shafei requested that the matter be adjourned so that he could “get [his] legal team in place.” Nevertheless, although he was not legally represented, Dr El‑Shafei made submissions about the requirement in s 26(5) of the IO Act that before revoking an intervention order the Court must allow the defendant and each person protected by the order a reasonable opportunity to be heard. He asked that he be given a reasonable opportunity to get his legal team in place and have them consider the book of documents tendered by Mr Abbott.

2. The Magistrate briefly stated her reasons for revoking the interim intervention order.  Her Honour stated that she had a concern that the Court may have been misled and not provided with accurate information that was within the knowledge of Dr El-Shafei.  For that reason, in the interests of justice, she exercised the power under s 76A of the Summary Procedure Act 1921 (SA)[1] to set aside the interim order.  However, she adjourned the proceedings for re‑hearing before Dr Cannon and directed that copies of the transcript be provided to the parties.  The Magistrate indicated to Dr El-Shafei that the adjournment until 1 March 2018 gave him the opportunity to get legal advice before the matter came on for further hearing before Dr Cannon.  The Magistrate also referred the application for costs made on behalf of Mr Shahin to Dr Cannon.

   [1]    This Act was amended to be entitled the Criminal Procedure Act 1921 (SA) from 5 March 2018 onwards. Nothing in these appeals turns on this distinction. For consistency, I will refer to the Act as the Summary Procedure Act.

   Proceedings on 1 March 2018

3. The matter came before Dr Cannon on 1 March 2018.  A solicitor, Mr C Caldicott, appeared for Dr El-Shafei and Mr Abbott for Mr Shahin.  The matter was adjourned without hearing as Dr El-Shafei’s counsel was not available.  Dr Cannon adjourned the application for costs made on behalf of Mr Shahin.

   Proceedings on 20 March 2018

4. Once again, Mr Caldicott appeared for Dr El-Shafei and Mr Abbott for Mr Shahin.  The matter was adjourned to 18 May 2018, apparently because of the unavailability of counsel for Dr El-Shafei.  Mr Shahin was awarded costs in the sum of $700 plus GST.  While the notes on the Magistrates Court file are not specific, I infer that the order covered the costs for both 1 March and 20 March 2018. A file note records that the matter was adjourned for further argument about costs with one hour set aside.

   Proceedings before Dr Cannon on 18 May 2018

5. There is no transcript available of the hearing before Dr Cannon on 18 May 2018.  However, Dr Cannon published ex tempore reasons which include some brief passages of transcript.

6. Dr Cannon noted that when the matter came before him in January 2018 it seemed clear to him that Dr El-Shafei had made a further application after the Magistrate Duncan dismissed the police application because there had been additional conduct which required an intervention order.  His Honour stated that he had the impression that the photographs were part of a course of conduct subsequent to the dismissal of the original application.  His Honour further noted that he had now been told that the photographs were not new, although that was not clear from the oral evidence that he took in January 2018, and noted that it was also not clear that there was any new conduct brought in support of the application.  He had now been told from the bar table that there was additional harassment and bullying between November 2017 and the making of the application on 8 January 2018.  On that basis he had been asked to re-open the case and hear further evidence from Dr El-Shafei.

7. Dr Cannon then stated that if the matter was to be re-opened:

   That would then, of course, involve a further hearing and would necessarily escalate into a full trial with both sides.  That is an unattractive proposition.  Whether it is unattractive, of course, is not determinative of it.  I think it is an unnecessary step. I will leave it as it rests in terms of evidence.

   The evidence is unsatisfactory.  I criticise myself for not adequately pinning down whether there was new and additional conduct.  I made the assumption there was.  I was lulled into that position – Mr Abbott says falsely so.  No doubt, Mr El-Shafei, were he given the opportunity to speak again would have more to say on that.

8. Dr Cannon then considered the costs application made by Mr Shahin. His Honour noted that s 189C of the Summary Procedure Act provided that “costs will not be awarded against an informant in proceedings for a restraining order unless the Magistrates Court is satisfied that the informant has acted in bad faith or unreasonably in bringing the proceedings.”  Dr Cannon expressed the view that the matter had miscarried because he had failed to clarify sufficiently in the original private application what was new material and what was not.  His Honour stated that he made no criticism of Magistrate Sheppard in finding that he had been misled, although she did so without having heard evidence or exploring the topic sufficiently to be certain about that.  His Honour stated that he did not think it necessary for him to explore the issues further.  He declined to find that Dr El-Shafei had acted unreasonably.  However, his Honour warned Dr El-Shafei that should he take out a further application and not be absolutely clear, open and honest with the Court he would face a substantial costs order. 

9. Dr Cannon also refused a costs application made on behalf of Dr El-Shafei.  In doing so his Honour stated that Dr El-Shafei was lucky not to have a costs order made against him.  The only reason he had not made a costs order was that the facts had not been sufficiently clarified for him to be certain as to what order he should make.

   Mr Shahin’s grounds of appeal

10. Mr Shahin seeks orders that the order made by Dr Cannon refusing to order costs in his favour be set aside and that Dr El-Shafei be ordered to pay his costs of the intervention order application and also the hearings on 23 January 2018 and 18 May 2018.  He also seeks an order that Dr El-Shafei pay the costs of the appeal.

11. Mr Shahin’s primary ground of appeal is that Dr Cannon erred by failing to determine whether Dr El-Shafei had acted in bad faith or unreasonably pursuant to s 189C of the Summary Procedure Act.  Mr Shahin has provided the following particulars of the error he says were made by Dr Cannon:

    1The Magistrate failed to make any determination of the facts upon which he would exercise any discretion on costs;

    2His Honour misdirected himself in fact and in law, when he held that proceedings on 18 January 2018 had miscarried due to his failure to clarify the original application; and

    3As a result of his Honour’s view that he had caused the proceedings to miscarry, he misdirected himself as a matter of law when he declined to make any finding that Dr El-Shafei had acted in bad faith or unreasonably.

12. Because the appeal by Mr Shahin is limited to a question about costs r 288(1)(b) of the Supreme Court Civil Rules 2006 (SA) requires him to obtain permission for the appeal.[2]  I will return to that question.

    [2] For the reasons that follow, Mr Shahin also requires permission under s 42(1a)(c) of the Magistrates Court Act 1991 (SA).

    Dr El-Shafei’s grounds of appeal

13. The grounds advanced in the third amended notice of appeal filed by Dr El‑Shafei are as follows:

    1. An Interim Intervention Order having been made by the Magistrates’ Court pursuant to s.21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) on 16 January 2018 and the Order having been served on the defendant, requiring him to attend before the Court pursuant to s.21(7)(c) of the Act on 23 January 2018, the learned Special Magistrate, on 23 January 2018, had no jurisdiction to entertain an application pursuant to s.26 of the Act for the Order to be dismissed nor to set aside the Interim Intervention Order.

    …

    2.   The learned Special Magistrate erred in permitting to be brought to account the defendant’s purported review of the material said to be the basis for his attack upon the making of the interim intervention order of 16 January 2018, such as to find that the Court “may have been misled and may not have been provided with information that was accurate that was within the knowledge of the applicant” and as justified the setting aside of the interim intervention order.

    …

    3.   The learned Special Magistrate erred in denying the appellant natural justice in that she made an order against him which was definitive of his rights without notice and without allowing him opportunity for him to prepare or engage legal representation.

    …

    4.   The learned Special Magistrate, having set aside the interim intervention order of 16 January 2018, erred in adjourning the proceedings for a re-hearing before Deputy Chief Magistrate Cannon.

    …

    4A.  In the alternative, if s 76A was lawfully engaged and utilised by Ms Shepherd, no rehearing as to the application for an Interim Order took place.

14. Ground 4A was the additional ground added in the third notice. 

15. Each of the grounds of appeal were supported by detailed particulars.  I will consider the matters raised in the particulars concurrently with my consideration of the submissions made on behalf of Dr El-Shafei.  However, I particularly note the contention that s 76A of the Summary Procedure Act was not available and the further contention that upon Magistrate Sheppard setting aside the interim intervention order there was no matter on foot that could be the subject of the referral to Dr Cannon for re-hearing.

    Permission to appeal - Dr El-Shafei

16. While each of the three notices of appeal filed on behalf of Dr El-Shafei asserts that permission to appeal is not required, the notice filed on 5 September 2018 modifies that assertion by stating that permission is not required in respect of the final order made on either 23 January 2018 or 18 May 2018.

17. An intervention order is interlocutory in nature as it does not finally determine the rights of the parties.[3] That is the case whether the intervention order was an interim order or a final order.  A final intervention order remains capable of being varied or revoked.[4] 

    [3]    Groom v Police (No 3) (2013) 231 A Crim R 1 at 6-7 [29]-[33] (Sulan J); O, GL v Police [2016] SASC 73 at [1]-[2] (Bampton J).

    [4]    Commonwealth Bank of Australia v Heinrich (No 2) [2003] SASC 436 at [16] (Debelle J).

18. Rule 4.07 of the Magistrates Court Rules 1992 (SA) vests the jurisdiction conferred on the Magistrates Court by the IO Act in the Criminal Division of the Court. Section 3 of the Magistrates Court Act 1991 (SA) defines a “criminal action” as “an action or proceedings brought in the criminal division of the Court”. Thus, any appeal relating to an intervention order is subject to s 42 of the Magistrates Court Act. Section 42 provides:

    42—Appeals

    (1)     A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).

    (1a)   An appeal does not, however, lie against an interlocutory judgment unless—

    (a)the judgment stays the proceedings; or

    (b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or

    (c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.

    …

19. The effect of s 42(1a) is that an appeal does not lie against an interlocutory judgment unless the requirements in paragraphs (a), (b) or (c) are satisfied. The decision by Magistrate Sheppard to set aside the interim intervention order, and to refer the matter to Dr Cannon for further hearing, does not sit comfortably with the words “the judgment stays the proceedings” in paragraph (a). The effect of her Honour’s orders was not to stay the proceedings but to set them on a different path. Paragraph (b) is clearly not relevant in the present circumstances.

20. The decision made by Magistrate Sheppard also does not closely match the words used in paragraph (c).  That provision is directed at interlocutory matters that arise before or during a criminal trial. The special reason requirement is designed to ensure that a criminal trial is only interrupted by an interlocutory appeal where this Court is satisfied that there is some special reason for that to be permitted.

21. The operation of s 42(1a)(c) of the Magistrates Court Act was considered by Sulan J in Groom v Police (No 3).[5]His Honour concluded that the Court may grant permission to appeal against an order confirming an intervention order where there are special reasons why it would be in the interests of the administration of justice to have the appeal determined. The effect of his Honour’s decision was to treat the words “before commencement or completion of the trial” in s 42(1a)(c) as having no operative effect. His Honour did not explain the basis upon which he adopted that approach.

    [5] (2013) 231 A Crim R 1 at 6-7 [29]-[33].

22. I respectfully agree with the approach adopted by Sulan J in Groom v Police (No 3). I consider it appropriate to read the words in subsection (1a) “before commencement or completion of the trial” as only operating where those words are relevant.  I consider, consistently with the view adopted by Sulan J in Groom, that the Court has power to grant permission for an interlocutory appeal if it is satisfied that there are special reasons why that would be in the interests of the administration of justice. 

23. The meaning of “special reasons” in s 42(1a)(c) of the Magistrates Court Act was considered by Bleby J in van Reesema v Police.[6]His Honour observed that the purpose of limiting the right of appeal from interlocutory judgments and orders was to prevent summary proceedings from being delayed and fragmented.  An error in an interlocutory judgment may or may not affect the final outcome.  If there is an error, it can be corrected on appeal from the final substantive decision in the case rather than by an appeal at the interlocutory stage when not all evidence will be before the Court and the ultimate significance of the interlocutory order is not yet known.  In that light Bleby J held that for there to be “special reasons” justifying the grant of permission to appeal “there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases.  An arguable case by itself will generally be insufficient.  There must be something about the unusual features of the case that calls for the granting of permission to appeal.”[7] 

    [6] [2009] SASC 8

    [7] Ibid at [23]; see also Marley-Duncan v Police [2015] SASC 146.

24. In Thakur v Police[8] Stanley J held that while the interpretation adopted by Bleby J in van Reesema v Police was appropriate in deciding whether permission to appeal is to be granted on an appeal from the usual categories of interlocutory orders or judgments, it was necessary to adopt a different approach when permission to appeal was sought in respect of an intervention order.  While an intervention order is interlocutory in nature, Stanley J stated “it is important to recognise that an intervention order is ongoing and continues in force until it is revoked, subject to any variation or substitution of the order.  While the order is interlocutory in nature, it has the appearance and the practical effect of a final order, but because it is capable of being varied or revoked, it is not.”[9]  Accordingly, Stanley J held that an application for permission to appeal should not be decided by reference to the considerations identified by Bleby J in van Reesema.  In the view of Stanley J, “an arguable case by itself will generally be sufficient” to establish special reasons.  If that were not the case, Stanley J noted that in many instances a defendant will effectively be deprived of a right of appeal.  For that reason his Honour considered that basic fairness requires that no more than an arguable case on appeal is necessary to find “special reasons”.[10] 

    [8] (2016) 125 SASR 180.

    [9] Ibid at 186 [26].

    [10] Ibid.

25. While I consider that the observations made by Stanley J have considerable force, this matter can be resolved without following the approach that his Honour adopted. That is because I am satisfied that there are special reasons why it would be in the interests of the administration of justice to grant permission to Dr El-Shafei to appeal against the decision made by Magistrate Sheppard.  There is a serious question as to whether the general power conferred upon the Magistrates Court by s 76A of the Summary Procedure Act is available to set aside an interim intervention order.  There is a further significant question as to whether the matter could be validly referred for further hearing after the setting aside of the interim intervention order.  Both of those matters raise significant questions of law.  For that reason, I consider that there are special reasons to grant Dr El-Shafei permission to appeal.

    Extension of Time - Dr El-Shafei

26. As I have already noted, a notice of appeal on behalf of Dr El-Shafei was not filed until 29 June 2018.  As the appeal challenges the order made by Magistrate Sheppard on 23 January 2018, the appeal is very substantially out of time. On 5 September 2018, being the day before the hearing of the two appeals, Dr El-Shafei filed an amended notice of appeal.  This notice of appeal was not provided to Mr Shahin’s legal representatives until the morning of the hearing.  Permission is required to proceed on this third amended notice. I indicated that I would decide the permission question after I had heard the appeals.

27. Dr El-Shafei’s solicitor, Mr Jason Evitts, has sworn an affidavit dated 5 September 2018 in support of the application for an extension of time.  Mr Evitts deposes that Caldicott Lawyers were instructed on about 12 June 2018 to appeal against the decision made by Magistrate Sheppard on 23 January 2018.  He further deposes that the decision to appeal was made having regard to the lodgement of an appeal by Mr Shahin.  It is contended that the appeal by Mr Shahin sought to take advantage of what is said to be an erroneous decision made by Magistrate Sheppard. 

28. The fact that Dr El-Shafei did not decide to appeal against the dismissal of his application until after Mr Shahin appealed against the dismissal of his application for costs is not a very compelling reason for the grant of an extension of time. However, there are other considerations suggesting an extension should be granted.  There is clearly an arguable case that Dr El-Shafei was denied procedural fairness by Magistrate Sheppard when she declined to adjourn the proceedings so that he could obtain legal representation.  There is also a serious question as to whether Dr Cannon erred in concluding that it was unnecessary to make any further decision on Dr El-Shafei’s application.  For these reason I grant Dr El-Shafei an extension of time until 5 September 2018 for the lodgement of his appeal.  Thus, I will decide the appeal by reference to the third notice of appeal filed by Dr El-Shafei.

    Dr El-Shafei’s submissions

29. Dr El-Shafei contends that Magistrate Sheppard erred in revoking the interim intervention order made by Dr Cannon. That contention rests on two bases. First, the application by Mr Shahin to have the interim order “dismissed” was advanced under s 26 of the IO Act. However, the mandatory requirements in s 26(5) were not considered or applied by the Magistrate. The provision requires that the Commissioner of Police, the defendant and each person protected by the order must be allowed a reasonable opportunity to be heard on the matter before the Court varies or revokes an intervention order, which includes an interim order. Before varying or revoking the Court must have regard to the same matters that are to be considered when deciding whether or not to make an order.

1. The second basis upon which Dr El-Shafei contends that Magistrate Sheppard erred, is that the general power conferred by s 76A of the Summary Procedure Act was not available. The matter should have been dealt with in accordance with the procedures set out in s 23 of the IO Act which govern the hearing of an application for a final intervention order.

2. Dr El-Shafei submits that the primary purpose of the power conferred by s 76A of the Summary Procedure Act is to provide a remedy to correct mistakes that would otherwise render the Magistrates Court functus officio and necessitate an appeal to the Supreme Court.  The procedure embarked upon by Magistrate Sheppard did not involve the correction of a mistake.  Instead there was a form of re-hearing that included the receipt of various material into evidence without providing Dr El-Shafei with the proper means to challenge that evidence.  Furthermore, Dr El-Shafei contends that the making of the interim order did not render the Magistrates Court functus officio. To the contrary, the IO Act specifically contemplates a subsequent challenge to the making of an interim order and provides the mechanism for that to occur.

3. Dr El-Shafei also contends that there was no basis for the submission by Mr Shahin that he was obliged to disclose to the Court, for the purposes of the hearing of the interim intervention order application, all facts known to him which Mr Shahin could be expected to place before the Court, should he contest the making of a final order.  There was no basis to overlay common law principles relating to disclosure applicable to the making of an ex parte application. The scheme of the IO Act is to facilitate the timely imposition of an interim order on an ex parte basis. There is nothing in the IO Act that requires disclosure by the applicant of all adverse facts. That would be contrary to the public policy underlying the IO Act.

4. The third ground upon which Dr El-Shafei seeks to impugn the decision made by Magistrate Sheppard is that he was denied procedural fairness. At the hearing on 23 January 2018, Mr Shahin was represented by Mr Abbott, whose instructors filed a written outline and a book of documents on the day of the hearing. There were allegations made during the course of the hearing that Dr El-Shafei had deliberately deceived and misled the Court. In this light, Dr El‑Shafei made several requests for an adjournment to arrange legal representation. Dr El-Shafei submitted that the proceedings were not being conducted in accordance with the IO Act and for that reason specifically asked for a “reasonable opportunity” to obtain legal representation.

5. For these several reasons, Dr El-Shafei seeks that the order made by Magistrate Sheppard to revoke the interim restraining order be set aside and the matter remitted to the Magistrates Court for further hearing before a different magistrate.

6. Dr El-Shafei contends that Dr Cannon correctly declined to make any order for costs. Section 189C of the Summary Procedure Act directs that costs not be awarded against an informant in proceedings for a restraining order unless the Court is satisfied that they had acted in bad faith or unreasonably in bringing the proceedings.  Dr Cannon found that Dr El-Shafei had not acted unreasonably and it can be inferred that his Honour also found that he had not acted in bad faith.  A finding of bad faith or unreasonableness can only be made after a finding that the primary facts are capable of supporting such a conclusion.  That involves a judgment based on matters of fact and degree and not the exercise of a discretion.[11] There was nothing to suggest that Dr Cannon erred in making such a factual determination. The fact that there was material produced that may have had the potential to affect the credibility and or reliability of Dr El-Shafei did not negate the statutory presumption under s 189C against the award of costs.

   [11]   Cook v Galloway (2015) 124 SASR 444 at 455 [46] (Nicholson J).

   Mr Shahin’s submissions

7. After noting that Dr El-Shafei is an intelligent, articulate and highly educated man, Mr Shahin submits that he intentionally omitted material facts from his application for an intervention order and at the initial hearing, asked for an opportunity to get legal advice on 23 January 2018 and was given such an opportunity by the Court.  On 23 January 2018 the matter was adjourned until 1 March 2018 for, amongst other reasons, to enable Dr El-Shafei to get legal advice.  Caldicott Lawyers appeared for him in 1 March 2018.

8. Mr Shahin submits that Magistrate Sheppard was entitled to exercise the power conferred by s 76A of the Summary Procedure Act to set aside the interim intervention order. Mr Shahin also submits that an adjournment was also available under s 22 of the IO Act and would have had the same effect as the order actually made by Magistrate Sheppard.

9. Mr Shahin also contends that he was entitled to seek that the interim intervention order be revoked and the application dismissed under s 23(1)(c) or s 26(1)(d). There is nothing in s 76A or elsewhere in the Summary Procedure Act which precludes the application of s 76A to intervention orders.  It was appropriate to exercise the power under s 76A, given that Mr Shahin had raised real questions about the efficacy of the interim order.  The order made by Magistrate Sheppard to set aside the interim order and to refer it for re-hearing before Dr Cannon, who had made the original intervention order, was fair and appropriate.

10. Mr Shahin also submits that the Magistrates Court is not required to conduct a trial under s 23 of the IO Act when it hears an application under s 26. The Court is entitled to accept documentary evidence, to hear submissions about those documents and to draw appropriate conclusions on the balance of probabilities in accordance with s 28 of the IO Act. The evidence contained in the book of documents presented by Mr Abbott, and his submissions on behalf of Mr Shahin, caused Magistrate Sheppard to question the evidence put before Dr Cannon at the initial hearing. That approach was open to the Court given the significant concern that Dr El-Shafei had misled the Court and that an order may not be necessary. The correspondence from Mr Shahin’s solicitors complaining about the conduct of Dr El Sahfei put an entirely different perspective on his application for an intervention order. It was Mr Shahin who had been subject to abuse and threatening conduct.

11. Counsel for Mr Shahin further submits that it was open to Magistrate Sheppard to test the evidence at the hearing on 23 January 2018.

12. It is also submitted on behalf of Mr Shahin that the IO Act does not remove the common law duty not to mislead a court.

13. It was further submitted on behalf of Mr Shahin that the submission by Dr El-Shafei that it was necessary to consult the Commissioner of Police and others under s 26(5) before cancelling the interim order misapplies the statutory scheme. The IO Act provides for applications by the police or by an individual, and s 26(1) allows certain classes of person to apply for a variation or revocation of an order. It is further submitted that Dr El-Shafei has arguably conflated a police application with a personal application and also conflated a final order with an interim order. The IO Act does not intend that police be heard at the hearing of an interim intervention order application brought by an individual rather than the police. Thus, there is no requirement in this situation for the police to consider the matter under s 26(5).

14. A further submission on behalf of Mr Shahin is that the legislative scheme provides for the grant of an interim order with the ability for it to be confirmed, varied or set aside in a short period. That is a summary procedure to be decided on the balance of probabilities and is designed to provide prompt protection to an applicant and to allow a defendant the opportunity to be heard as soon as possible. After his application made through the police failed, Dr El-Shafei chose to bring a further application without legal assistance. He knew the date of the confirmation hearing but chose to appear without legal representation. The IO Act requires the Court to confirm, vary or set aside the order on that occasion.

15. Dr El-Shafei chose to provide incomplete documentation to the Court so as to mislead it by omission.  He said nothing about that matter at the initial hearing before Dr Cannon or before Magistrate Sheppard.  He suffered the consequences of this conduct at the confirmation hearing.   The Court was unable to conclude that there was reliable evidence that he may suffer abuse or that the order should be confirmed.  He had the opportunity to get legal advice prior to the re-hearing before Dr Cannon.

16. Mr Shahin submits that Dr Cannon misdirected himself as a matter of law and fact when he declined to make a costs order. The misdirection occurred because his Honour focused on his own conduct in failing to make enquiries of Dr El-Shafei rather than considering whether the latter had acted in bad faith or unreasonably in bringing and continuing the proceedings as required by s 189C of the Summary Procedure Act.  Dr El-Shafei was under a duty to disclose adverse matters.  A judicial officer is not require to conduct an inquisitorial hearing and is entitled to rely upon the information placed before the Court and to assume that it is correct.  Dr Cannon should have made findings of fact about the conduct of Dr El-Shafei and determined if he had acted in bad faith or unreasonably.

17. The two letters from Cowell Clarke dated 26 October 2017 and the further letter dated 13 December 2017, that were not disclosed to the Court, demonstrated that, at the very least, Dr El-Shafei had contributed to the state of the relationship between the parties, particularly due to the significant threat of violence he had made against Mr Shahin.  The only reason for Dr El-Shafei not to produce those documents to the Court and to disclose that the photographs he relied upon were about two years old, was to mislead the Court about his conduct that would otherwise have disentitled him to the making of an order.  His failure to disclose all material facts to the Court was sufficiently serious to justify the interim order being set aside. 

    Consideration

    Whether an applicant is required to make full disclosure

18. Mr Shahin contends that an applicant for an interim intervention order must make full and fair disclosure on the same basis as any other person who seeks an ex parte order.  Dr El-Shafei contends that such an obligation does not fall upon an applicant for an interim intervention order.

19. The disclosure obligations that ordinarily apply to an applicant for an ex parte order were stated by Gageler J in Aristocrat Technologies Australia Pty Ltd v Allam in the following terms:[12]

    It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made.  The principle is not confined to particular types of interlocutory orders.  Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.

    (Footnotes omitted)

    [12] (2016) 90 ALJR 370 at 373-374 [15].

20. In that light, Mr Shahin contends that Dr El-Shafei breached his obligations to the Court by failing to make full and fair disclosure about his own conduct that had been the subject of complaint by or on behalf of Mr Shahin.  For that reason, Mr Shahin contends that Magistrate Sheppard correctly decided to set aside the interim intervention order made by Dr Cannon.

21. The contrary submission made on behalf of Dr El-Shafei directs attention to the terms of the IO Act and also the circumstances that may surround the making of an interim intervention order.

22. In essence, the objects of the IO Act are to assist in preventing domestic and non-­­­domestic abuse (see s 5(a)). Section 6 provides that there are grounds for issuing an intervention order against a person if it is reasonable to suspect that they will, without intervention, commit an act of abuse against a person, and the issuing of the order is appropriate in the circumstances.

23. The term “abuse” is very widely defined in s 8. Section 8(2) defines an act to be an “act of abuse” if it results in or is intended to result in, amongst other outcomes, physical injury or emotional or psychological harm. The term “emotional or psychological harm” is defined in s 8(3)(c) to include “distress, anxiety or fear, that is more than trivial.” Section 8(4) provides an extensive list of conduct that may constitute an act of abuse resulting in emotional or psychological harm.

24. I consider that an applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order, such as an interim injunction.  My reasons follow.

25. First, it is not the case that an interim intervention order will not be made unless the applicant is blameless or “comes to the Court with clean hands”. The object of the intervention order scheme is to protect those at risk of abuse. Thus, the relevant issue is not whether one party is more or less blameworthy than the other, but rather whether it is reasonable to suspect that an act of abuse may be committed in the absence of an interim order and also whether the making of the order is appropriate in the circumstances (see s 6).

26. Secondly, that conclusion is not affected by the fact that in some instances the conduct of the applicant may be such that the Court concludes that the making of a final order is not appropriate, or that the risk of abuse does not warrant the issue of a final order. The legislative scheme recognises and deals with those possibilities by providing the defendant with the opportunity to respond when the application for confirmation of the final order is heard under s 23. The possibility that, in some cases, a final order will be refused by the Court does not alter the fact that the protective nature of the scheme requires an interim order to be issued expeditiously at a time when the person seeking protection may be at real risk and greatly distressed. In my view, there is a real risk that the imposition of a full and fair disclosure obligation in such an environment is likely to frustrate or impede the object of providing prompt intervention to protect those at risk of abuse.

27. Thirdly, the legislative scheme empowers police to issue interim orders[13] and also for police to apply to the Court on behalf of the person who requires protection by the making of an order.[14]  In issuing or applying for an order the police are not acting as the agent for the person needing protection.  The role of the police is to fulfil the public purposes of preserving the peace[15] and protecting those at risk of abuse.[16] 

    [13] IO Act s 18.

    [14] IO Act s 20(1)(a).

    [15]   Police Act 1998 (SA) s 5(b).

    [16] Ibid ss 5(a), 5(c).

28. Nyland J noted in Police v Macintosh, in the context of a costs application, that the fact that the police might have conducted a more comprehensive investigation before applying for an intervention order does not amount to bad faith or unreasonableness.[17]  I respectfully agree with her Honour’s conclusion. 

    [17] [2009] SASC 253.

29. In that light, and as the police are not agents for persons needing protection, I do not consider that the obligation to make full and fair disclosure of all information that is potentially adverse to the interests of the subject of the proposed order can be applied to police when they seek an interim order.  Furthermore, the urgency attached to the making of an application and the fact that the police will be dependent upon the information supplied to them by the person seeking protection (who is not their client), who may be greatly distressed, strongly militate against the police being subject to the ordinary obligations of an applicant for an ex parte order. Similar considerations apply in cases where the relevant Minister makes an application on behalf of a child.[18]

    [18] IO Act s 20(1)(d).

30. Fourthly, I cannot see any reason why an obligation to disclose potentially adverse information should be imposed on a person whom applies for an intervention order on their own account, when in my view, police and the relevant Minister are not under such an obligation when they make an application.

31. Fifthly, s 20(3) imposes an obligation upon an applicant to inform the Court of the matters referred to in that provision.  The imposition of that duty provides some support, albeit limited, for the conclusion that the duty to make disclosure is limited to the matters stated in s 20(3). 

32. Finally, it may be arguable that because the duty to make disclosure in respect of an ex parte application is an equitable obligation, it does not extend to this statutory scheme.  Because the parties have not dealt with the matter in their submissions, I will not further consider this issue.

33. While I have concluded that an applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order, it hardly needs to be said that the information and evidence provided in support of an application must nevertheless be truthful and a party cannot intentionally or recklessly mislead the Court.

    Whether the powers under s 76A of the Summary Procedure Act were available

34. Dr El-Shafei contends that the general power conferred upon the Magistrates Court by s 76A of the Summary Procedure Act to set aside an order could not be exercised to quash the interim intervention order made by Dr Cannon.  Mr Shahin asserts the contrary proposition.

35. The essence of the argument advanced on behalf of Mr Shahin is that because Dr El-Shafei had misled the Court it was not appropriate to require him to wait until the confirmation hearing conducted under s 23 to seek revocation of the interim order. In other words, because of the allegedly egregious conduct of Dr El-Shafei, special steps were necessary to remove the restrictions placed upon Mr Shahin by the interim order. The submission is that, because the legislative scheme failed to deal with situations of the type that had arisen in this case, the Court could rely upon its general powers under s 76A to set aside the interim order in the interests of justice.

36. The countervailing argument is that s 26 of the IO Act is a procedural regime covering the revocation and variation of orders. Section 26 is equally applicable to interim orders and to final orders. The requirements imposed by the legislature cannot be avoided by calling in aid a general power that is not subject to that procedural regime.

37. Section 26 of the IO Act empowers the Court to revoke an intervention order on application by, amongst others, the defendant. However, s 26 requires certain procedural requirements to be satisfied. Those procedural requirements do not appear in s 76A of the Summary Procedure Act. Thus, the question is whether the inclusion of the procedural requirements in s 26 indicates that the power conferred by s 76A cannot be applied to revoke an intervention order.

38. It is necessary to consider the circumstance in which it was intended that s 76A of the Summary Procedure Act could be applied to set aside a conviction or order.  This question was examined by Bleby J in Police v Franco.[19]  In that case a Magistrate had applied s 76A to set aside an order for forfeiture of firearms on the ground that significant relevant information had not been put before the Magistrate who had made that order.  The appellant had a very poor command of the English language, was not legally represented when he appeared before the first Magistrate and relevant information had not been conveyed to the police prosecutor by the investigators.  In those circumstances, Bleby J held that the second Magistrate had validly exercised the power under s 76A to set aside the forfeiture order.  His Honour noted that s 76A confers a wide discretion upon the Magistrates Court and goes beyond the slip rule provided for in s 76B of the Summary Procedure Act.  Section 76A enables the Magistrates Court to make an order where it would otherwise have been unable to do so under the functus officio doctrine.  While the first Magistrate had not erred in making the order, the circumstances were such that it was in the interests of justice to set aside the order.  It is not necessary to establish the existence of exceptional or special circumstances.[20]  Bleby J stated:[21]

    Where an error has been made or relevant facts have been withheld from or mistakenly omitted from being placed before the Court, either through no want of diligence on the part of the applicant or because of a genuine misunderstanding on the applicant’s part, which has resulted in an injustice, or where material circumstances have changed which justify the reconsideration of an order of this nature and the interests of justice require it, resort to s 76A of the Summary Procedure Act is entirely appropriate.  Within the constraints imposed by s 76A(3) it is a convenient summary remedy for an injustice which otherwise could only be cured by the much more cumbersome and expensive procedure of an appeal to this Court.

    [19] [2008] SASC 268.

    [20] Ibid at [34].

    [21] Ibid at [35].

1. In Police v Clayton-Smith, Gray J referred with approval to the observations made by Bleby J in Franco.[22]  However, Gray J found that the Magistrate had acted for an improper purpose in exercising the power conferred by s 76A.  The defendant had pleaded guilty to motor vehicle offences.  Because the defendant had previously committed relevant offences, he was liable to a licence disqualification of not less than three years.  The Magistrate had set aside the earlier convictions and then re-sentenced the defendant to the same penalties for those offences.  The result was that the earlier convictions were not regarded as prior offences and thus the mandatory three year licence disqualification did not apply.[23]  Gray J held that the Magistrate had erroneously exercised the discretion under s 76A(3) to set aside a conviction and had done so for an improper purpose, i.e. to avoid the mandatory disqualification. 

   The Anthony Hordern principle

   [22] (2010) 107 SASR 261.

   [23]   That analysis appears to be contrary to the decision of the High Court in R v White (1968) 122 CLR 467 at 475 (Menzies J, with Barwick CJ, McTiernan, Kitto and Taylor JJ agreeing), the decision of the Court of Criminal Appeal in R v M, STE (2013) 118 SASR 101 (Sulan, Blue and Stanley JJ) and also the Full Court in O’Dea v Commissioner of Police (2016) 125 SASR 159 at 166-167 [31]-[35] (Parker J, with Nicholson and Lovell JJ agreeing).

2. The High Court held in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia that: [24]

   When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

   [24] (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J (as he then was)).

3. It is noteworthy that Gavan Duffy CJ and Dixon J only referred in Anthony Hordern to situations where the general power and the specific power were conferred by the same enactment. Consistently with that approach, the Full Court of the Federal Court held in Re Wilcox; Ex parte Venture Industries Pty Ltd that the Anthony Hordern principle “has little, if any, applicability to powers expressly conferred in separate enactments.”[25] 

   [25] (1996) 66 FCR 511 at 531 (Black CJ, Cooper and Merkel JJ).

4. DC Pearce and RS Geddes have taken the contrary view in Statutory Interpretation in Australia. They have suggested that there is no particular reason to adopt this restriction. The application of the Anthony Hordern principle should not depend upon whether a conferral of power is in one or in separate instruments.  The answer would depend on whether the specific mechanism was intended to be exclusive.[26]  However, Pearce and Geddes concede that it may be more difficult to establish that a power was intended to be exclusive where different instruments are involved.[27] 

   Improper purpose

   [26]   (LexisNexis Butterworths, 7^th ed, 2011) at 146 [4.35].

   [27]   Ibid citing Kelly v Saadat-Talab (2008) 72 NSWLR 305 at 310.

5. A similar question to that in Anthony Hordern came before the High Court in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA).[28]However, the Court adopted a different analysis. Section 5 of the Shop Trading Hours Act 1977 (SA) empowered the Minister to exempt a shopkeeper from the restrictions upon Sunday trading. The Minister granted an exemption under s 5 to all shopkeepers in the Adelaide CBD. A separate provision in the Act allowed for the alteration of closing times in a shopping district, but required a majority of interested parties to agree to a variation in shop trading hours. The High Court held the Ministerial exemption to be invalid as this power could not be construed as empowering the Minister to make a general variation to shop trading hours. Thus, the exemption had been granted for an improper purpose and was invalid.[29] 

   [28] (1995) 183 CLR 552.

   [29]   See also R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; South Australia v Slipper (2004) 136 FCR 259; Police v Clayton-Smith (2010) 107 SASR 261.

6. It is apparent that the use of a general power in circumstances where a specific power authorises the taking of the same action subject to compliance with certain specified conditions may potentially be invalidated under the Anthony Hordern principle of statutory interpretation, i.e. the attachment of conditions to the use of the express power indicates a legislative intention to exclude use of the general power in situations where the express power is available. Alternatively, an action may be invalidated under the administrative law principle that the power has been used for an improper purpose, i.e. a purpose that was not intended by the legislature when it conferred the power. 

7. While not all of the requirements in s 26 are relevant to the facts of this case, it is necessary to have regard to those provisions when determining if s 76A can be applied to revoke an intervention order.

8. Section 26(2) provides for the making of revocation application by or on behalf of a child. Those provisions are facultative and do not operate as a specific condition that limits the operation of s 26 in the sense that was considered in Anthony Hordern.

9. Section 26(3) provides that an application to vary or revoke a final intervention order may only be made by the defendant after the date fixed by the order. I understand that this is generally 12 months after the order was made. As no final order had not been made in this case, s 26(3) does not apply. It may be arguable that s 76A cannot be applied to revoke or vary a final order in circumstances where that would not be permitted by s 26(3). However, it is unnecessary to consider that issue in the present case.

10. Important procedural requirements appear in s 26(5). Section 26(5)(a) requires the Court to allow the Commissioner of Police, the defendant and each person protected by an order a reasonable opportunity to be heard before an intervention order is varied or revoked. The term “intervention order” is defined in s 3(1) to means an interim or a final order, as the case requires. Section 26(5)(b) requires the Court, before revoking or varying an order, to have regard to the same matters that it is required to consider when deciding whether or not to make an order. I will further consider the operation of s 26(5) below.

11. Section 26(6) restricts the Court’s power to remove a firearms provision from a final intervention order. As with s 26(3), this provision is not relevant in the present case, but it may be arguable that s 76A cannot be applied to vary a final order contrary to s 26(6).

12. Subsections (7) to (10) of s 26 set out a detailed regime for service and notification of orders that vary or revoke an intervention order. None of these procedural requirements appear in s 76A of the Summary Procedure Act.  However, the matters referred to in subsections (7) to (10) are not limitations on the exercise of power akin to those considered in Anthony Hordern. Each of the procedural steps referred to in subsections (7) to (10) arise after the Court has made a decision to revoke or vary an intervention order. The various procedural obligations are designed to inform the defendant, other relevant persons and public sector agencies of the removal or variation of the obligations imposed upon the defendant by an order. These provisions do not restrict or qualify the power of the Court to revoke or vary an order. For that reason, the Anthony Hordern principle is not relevant to subsections (7) to (10). However, if the Court does revoke or vary an order under s 76A, I consider that it would be prudent to order that the steps which would otherwise be required by subsections (7) to (10) of s 26 must be taken.

13. In light of the preceding analysis, only the requirements of s 26(5) are relevant in determining whether either the Anthony Hordern principle or the improper purpose principle operate to preclude reliance upon s 76A to revoke an interim intervention order.

14. Section 76A of the Summary Procedure Act is intended to confer upon the Magistrates Court a general power to revoke or vary its orders when that is necessary in the interests of justice.  Because the power has been conferred to enable the Court to deal with injustice, I consider that s 76A should be given a wide operation. Nevertheless, as the judgment of Gray J in Clayton-Smith indicates, s 76A cannot be applied to frustrate the operation of a legislative scheme. 

15. I am satisfied that Magistrate Sheppard did not apply s 76A to avoid the application of the IO Act. Her Honour’s intention was clearly to deal with a situation that she considered to be potentially unjust, that being the concern that the Court may have been misled and not provided with accurate information by Dr El-Shafei prior to the issue of the interim intervention order by Dr Cannon.

16. I turn to the question of whether s 26(5) indicates a legislative intention that the otherwise broad powers conferred by s 76A are not available to revoke an intervention order, i.e. does the Anthony Hordern principle apply? 

17. Even if s 26(5)(a) had not been enacted, the common law would require persons who have a real interest in the operation of an order to be given a reasonable opportunity to be heard before it is revoked or varied. That would clearly be the case with the defendant and each person protected by an order and also the Commissioner where police have been the applicant. In those situations, before exercising its powers under s 76A the Court may be required to give persons with a relevant interest a reasonable opportunity to be heard before an order is revoked or varied.

18. The Commissioner of Police will not have an interest in the operation of every intervention order. The definition of abuse in s 8 of the IO Act extends to emotional or psychological abuse that is intended to result in an unreasonable and non-consensual denial of social or personal autonomy. While such conduct is reprehensible, it is generally not, of itself, a police concern. Thus, if s 26(5)(a) had not been enacted, the police would not be entitled to a reasonable opportunity to be heard before each and every order is revoked or varied.

19. For the foregoing reasons, I do not consider that the requirements of s 26(5)(a) operate to preclude the Court from exercising its powers under s 76A where that is considered necessary to deal with an injustice. The common law requires that before the Court revokes or varies an intervention order under s 76A it must give persons with a relevant interest a reasonable opportunity to be heard.

20. I consider that under the common law principles of administrative law, the matters that must be considered before making an order will also be relevant considerations when the Court decides whether it should revoke or vary an intervention order under s 76A in the interests of justice. Thus, s 26(5)(b) does not extend the requirements of the common law.

21. It is implicit in Magistrate Sheppard’s concern that the Court may have been misled and not provided with accurate information, that her Honour took into consideration those matters that must be considered before making an order, when she decided to revoke the interim order. Thus, her Honour complied with the duty under s 26(5)(b).

22. I do not consider that the procedural requirements imposed by s 26(5) indicate a legislative intention that the general power to revoke an order under s 76A in the interests of justice should not be available to revoke an intervention order. I take that view because I do not consider that s 26(5) adds anything to the approach that must be taken when a magistrate considers applying s 76A to revoke an intervention order. As I have already indicated, the common law would require the defendant and the persons protected by an order, and also the Commissioner of Police where the application has been made by police (and possibly in some other circumstances) to be given a reasonable opportunity to be heard before an order is revoked or varied. Furthermore, I also consider that in assessing whether the revocation or variation of an order is necessary in the interests of justice, a magistrate must take into account the considerations that apply when an order is made. I therefore find that the power conferred by s 76A was available to Magistrate Sheppard.

    Did Magistrate Sheppard err in revoking the interim order?

23. The further question is whether Magistrate Sheppard erred by deciding to revoke the interim order.  In my view, two questions arise.  First, did her Honour’s exercise of the discretion indicate either a process error or an outcome error.  Second, was there a failure to accord Dr El-Shafei procedural fairness.  A failure to accord procedural fairness is a particular type of process error.

24. Leaving aside the alleged denial of procedural fairness which I will consider shortly, I do not consider that Magistrate Sheppard made any process error when she concluded that the interim order made by Dr Cannon should be set aside.  The basis for her Honour’s decision was her concern that the Court may have been misled and not provided with accurate information that was within the knowledge of Dr El-Shafei. 

25. While I have found that an applicant for an interim intervention order is not subject to the duty to make full and fair disclosure similarly to other applicants for an ex parte order, an applicant is clearly required to provide accurate information in support of their application and to respond truthfully to questions put by the magistrate. 

26. It was not necessary for Magistrate Sheppard to decide whether Dr El‑Shafei had given wilfully false answers to Dr Cannon and otherwise caused his Honour to be misled. There were proper grounds for her Honour to be concerned about the accuracy and contemporanity of the information provided by Dr El-Shafei in support of his application for an interim order. Whether intentionally or not, the fact is that Dr El-Shafei did not give responsive answers to the questions asked by Dr Cannon about the reference in the solicitor’s letter to his conduct and whether there had been any other complaints about his behaviour. He also failed to disclose the content of the letters dated 26 October 2017 and did not inform the Court that at least some of the conduct by Mr Shahin of which he complained, including the photograph depicting a “one-fingered salute”, predated the application heard by Magistrate Duncan.

27. That concern about the accuracy and timing of the information provided to the Court by Dr El-Shafei was a proper factual basis for Magistrate Sheppard to conclude that the interim intervention order may have been issued inappropriately and should be revoked in the interests of justice. 

28. Magistrate Sheppard was exercising a judicial discretion and thus the principles in House v The King are applicable.[30] Thus, it is immaterial whether or not this Court may have taken a different approach in the same circumstance, e.g. by permitting the interim order to remain in force until the confirmation hearing could be conducted under s 23 and arranging for that to occur as a matter of urgency. I do not consider that the decision made by Magistrate Sheppard displayed any process error or outcome error. The approach adopted by her Honour was open to her given the concern that had arisen about the factual basis for the issue of the interim order.

    [30] (1936) 55 CLR 499.

    Procedural fairness

29. The further question is whether Magistrate Sheppard erred by declining to adjourn the proceedings on 23 January 2018 until Dr El-Shafei arranged legal representation.  As I have previously noted, Dr El-Shafei made several requests during the course of the hearing on 23 January 2018 for the matter to be adjourned so that he could obtain legal representation.

30. It is necessary to refer to the comments made by Dr Cannon when he granted the interim intervention order on 16 January 2018.  His Honour stated:

    Notwithstanding that I am going to grant the interim intervention order.  You understand that by granting the order we are going to end up having a trial about this.  He will come in.  He will defend it.  He will probably get a lawyer here.  We’ll have several court appearances on the way and in some months’ time we will have a trial and everyone will give evidence and we will spend a day or two on it.  If you can sort it out without that it will be easier and better for everyone.

31. After making the interim intervention order, Dr Cannon concluded by stating:

    Police are to serve that make it returnable next week, next Tuesday in the afternoon, 23 January at 2:15.

    Someone needs to be here on your behalf, you can be here yourself but bear in mind he will be here.  You can send a representative duly authorised.

32. Dr El-Shafei’s application came before Magistrate Sheppard on 23 January 2018 for the purpose of determining whether a final order should be made under s 23. Mr Abbott appeared for Mr Shahin. He applied for the interim order to be set aside. Dr El-Shafei stated that he had been told by Dr Cannon that “this is going to happen in a few month[s’] time.” He also stated that he was trying to get a legal team to represent him but also indicated that “I was hoping that [the] interim order would be made permanent today.” He also contended in response to a question from Magistrate Sheppard that he believed that Mr Shahin would consent to the order being made permanent that day. He then indicated that if Magistrate Sheppard was to decide that more evidence was needed or the matter needed to go to trial he would like the opportunity to get his legal team in place. Her Honour indicated that she was very unlikely to grant an adjournment for that purpose. Her Honour also stated “[t]his is your application, I presume you’ve had some experience with your neighbour sufficiently to make you realise that he was likely to be represented.”

33. I consider that two questions arise from the refusal of Magistrate Sheppard to adjourn the proceedings to allow Dr El-Shafei to obtain legal representation.  Those questions are, first, did Dr El-Shafei have the opportunity to be legally represented at the hearing on 23 January 2018 and, for his own reasons, choose to appear in person?  If that was the situation, was it appropriate for Magistrate Sheppard to refuse an adjournment?  Secondly, was Dr El-Shafei disadvantaged by his lack of legal representation with the result that the proceedings were unfair?

34. In my view the explanation provide by Dr Cannon at the conclusion of the hearing on 16 January 2018 could have led Dr El-Shafei to believe that legal representation might only be necessary after some months.  On the other hand, Dr El-Shafei has stated to Magistrate Sheppard that he believed that a final order would be made on 23 January 2018.  In all the circumstances, I consider that there was a real possibility that Dr El-Shafei interpreted the comments of Dr Cannon to mean that legal representation was not essential at the hearing to be conducted on 23 January 2018. 

35. Bray CJ stated in Walker v Eves that: [31]

    … unless there is some reason to suspect subterfuge or deliberate and unjustifiable procrastination, the courts should lean towards granting adjournments which will enable a party’s case to be put before it, preferably by counsel, when that can be done without injustice to the other side which cannot be remedied by the making of an appropriate order for costs.  No considerations of the convenience of court or prosecution should be permitted to stand in the way of this.

    [31] (1976) 13 SASR 249 at 252.

36. Consistently with the approach advocated by Bray CJ, if there was any real risk of unfairness to Dr El-Shafei, an adjournment should have been granted. However, for the reasons that follow, I am not persuaded that there was any unfairness nor am I persuaded that the result may have been any different if Dr El-Shafei had been legally represented. In saying that, I recognise that Mr Abbott is a formidable opponent with vast experience in the law. On the other hand, while Dr El-Shafei has no legal qualifications, he is a specialist medical practitioner and obviously an articulate and highly intelligent man. Thus, he was able to identify and advance the primary legal argument against the immediate revocation of the interim order, i.e. that there had not been compliance with s 26(5)(a) of the IO Act. However, I have already concluded that this was not a barrier to the course adopted by the Magistrate. Moreover, the focus of the submissions by Mr Abbott, and of the deliberations by Magistrate Sheppard, was upon the allegation that Dr El-Shafei had caused Dr Cannon to be misled.

1. I consider that the Magistrate provided Dr El-Shafei with ample opportunity to address the Court concerning the contention that he had misled Dr Cannon.  After hearing his submissions, Magistrate Sheppard was not persuaded that she should not hold concerns that the Court had been misled prior to Dr Cannon making the interim order.

2. I also note that Magistrate Sheppard specifically asked Dr El-Shafei why he had not included copies of the letters from Mr Shahin’s solicitors in his application.  He asserted that it had been agreed at the hearing before Dr Cannon that this material was to be produced at trial. The transcript shows that this answer was plainly incorrect.  Her Honour observed that the Court may have been misled and not provided with information that was accurate.  Clearly, the making of this incorrect contention did not assist Dr El-Shafei’s case.

3. Because the decisive issue was the reliability of the information put before the Court by Dr El-Shafei when Dr Cannon made the interim order, I do not consider that the lack of legal representation unfairly disadvantaged Dr El-Shafei. In my view, he was perfectly capable of explaining his position to Magistrate Sheppard.

4. Because there was no procedural unfairness, and as there was no error on the part of Magistrate Sheppard, I dismiss Dr El-Shafei’s appeal against the decision made by her Honour under s 76A of the Summary Procedure Act to set aside the interim intervention order made by Dr Cannon on 16 January 2018. 

   Further proceedings

5. While Magistrate Sheppard referred the matter to Dr Cannon for further hearing, that did not occur.  His Honour stated:

   I am asked to reopen the case and hear again from Mr El-Shafei.  That would then, of course, involve a further hearing and would necessarily escalate into a full trial with both sides.  That is an unattractive proposition.  Whether it is unattractive, of course, is not determinative of it.  I think it is an unnecessary step. I will leave it as it is in terms of evidence.

   The evidence is unsatisfactory.

   …

   My view of this is the matter has miscarried.  I failed to sufficiently clarify in the original application what was new and what was not, and I make no criticism on my colleague Ms Sheppard, when she came to the view that I had been misled, but without having heard evidence or exploring the topic sufficiently to be certain about that.  I do not think it is necessary for me to explore it further.

6. I agree with Dr Cannon’s view that the proceedings on 16 January 2018 miscarried.  However, I also consider that the proceedings on 18 May 2018 miscarried.  Because Magistrate Sheppard had set aside the interim intervention order, but not dismissed the application, it was necessary for the Court to decide whether an order should be issued.  That did not occur.

7. Upon the Magistrates Court setting aside an order under s 76A, it is empowered by subsection (4) to re-hear the proceedings in which the order was made or to adjourn the proceedings for subsequent re-hearing. Magistrate Sheppard adopted the latter course. I consider that her Honour appropriately exercised that discretion. The important point is that Magistrate Sheppard was not acting under s 23 of the IO Act to determine the application for a final intervention order. The effect of her Honour’s order was to require the application for an interim order to be decided again.

8. Magistrate Sheppard clearly contemplated that Mr Shahin would participate in the further hearing before Dr Cannon and may be legally represented, as in fact happened. While the matter has not been raised by any of the parties to these appeals, I note that s 21(1) of the IO Act requires that, in those cases where an interim intervention order has not been issued by a police officer, “the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear.”  The effect of that provision is that applications for interim orders are heard urgently on an ex parte basis.  That requirement was satisfied when Dr El-Shafei’s application first came before Dr Cannon on 16 January 2018.  In light of the subsequent events, it would be absurd to now require that Dr El-Shafei’s application be considered again on an ex parte basis.

9. It would be futile to conduct a further hearing of the application for an interim order under s 21. Section 23(1)(b) empowers the Court to issue a final intervention order in substitution for an interim order. I see no reason why that process cannot be applied even though the interim order was set aside by Magistrate Sheppard. Thus, if Dr El-Shafei still desires to pursue his application, the matter can proceed directly to a hearing under s 23 to decide whether or not a final order should be made. Of course, it will no doubt be necessary for the Magistrates Court to conduct a directions hearing before the matter is listed for determination under s 23.

   The costs application

10. Dr Cannon noted that Mr Shahin’s application for costs must be decided under s 189C of the Summary Procedure Act.  This provides that “costs will not be awarded against an informant in proceedings for a restraining order unless the Magistrates Court is satisfied that the informant has acted in bad faith or unreasonably in bringing the proceedings.”  Dr Cannon declined to find that Dr El-Shafei had acted unreasonably.  The basis for his Honour’s decision was that he had himself failed to clarify sufficiently what information was new and what was not.

11. Mr Shahin submits that Dr Cannon misdirected himself as a matter of law and fact by referring to his own conduct rather than by inquiring as to whether Dr El-Shafei had acted unreasonably. In this respect, Mr Shahin relies on his contention that an applicant for an ex parte interim order must provide full and fair disclosure.  He submits that because Dr El-Shafei failed to provide all relevant information to the Court concerning his own conduct he therefore should be ordered to meet the costs of Mr Shahin. 

12. That submission faces two obstacles.  Firstly, I have found that an applicant for an ex parte intervention order is not required to provide full and fair disclosure on the same basis as an applicant for other ex parte orders.  Secondly, there has been no determination made about the factual allegations levelled against Dr El-Shafei. At this stage there is no more than a concern that he may have caused the Court to be misled.  While that provided a proper basis to set aside the interim order, it falls short of establishing that he acted in bad faith or unreasonably in bringing the proceedings.

13. While there is some force in the submission that the discretion of Dr Cannon miscarried, the fact remains that his Honour did not have sufficient information to decide whether or not Dr El-Shafei had acted in bad faith or unreasonably. Thus, his Honour did not have proper grounds to reject the costs application made by Mr Shahin. Accordingly, the decision of Dr Cannon must be set aside.

14. This Court is in no better position than was Dr Cannon to decide whether or not Dr El-Shafei had acted in bad faith or unreasonably. That question should be decided when the application for a final order is determined.

    Conclusion

15. I grant Dr El-Shafei an extension of time to the extent necessary for the lodgement of his appeal against the decision made by Magistrate Sheppard on 23 January 2018. 

16. I dismiss Dr El-Shafei’s appeal against the decision of Magistrate Sheppard to set aside the interim intervention order.

17. I uphold the appeal by Mr Shahin against the refusal of Dr Cannon to make an award of costs in his favour against Dr El-Shafei. 

18. I decline to make an order that Dr El-Shafei pay Mr Shahin’s costs in relation to the intervention order.  That question cannot be decided until such time as the relevant facts may be determined.

19. The application for an intervention order made by Dr El-Shafei is remitted to the Magistrates Court for re-hearing before a different magistrate should Dr El-Shafei elect to proceed with the matter.  If he elects to proceed with the matter, it is open to Mr Shahin to contend that Dr El-Shafei had acted in bad faith or unreasonably in bringing the application for an interim order in January 2018 and that an order for payment of costs should be made against Dr El-Shafei.