Somerville v K and J (Protected Persons) - [2022] SASC 130

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
SOMERVILLE v K AND J (PROTECTED PERSONS)
[2022] SASC 130
Judgment of the Honourable Justice Kimber (ex tempore)
3 November 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against the decision of a Magistrate dismissing an application for revocation of a final intervention order.
The final intervention order (the order) was granted in Victoria in March 2017. The order was later registered in South Australia. The appellant applied in the Court below for the order to be revoked. That application was dismissed pursuant to s 26(4)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). The Magistrate was not satisfied there had been a substantial change in circumstances since the order was issued.
On appeal, in submitting the Magistrate had erred, the appellant did not assert any change in circumstances since the order was issued. The effect of the submissions of the appellant was the original order should not have been made.
Held, per Kimber J, dismissing the appeal:
1.The Magistrate did not err in dismissing the application for revocation pursuant to s 26(4)(b) of the Act. The conclusion of the Magistrate there had not been a substantial change in the circumstances since the order was issued was correct.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26, referred to.

SOMERVILLE v K AND J (PROTECTED PERSONS)
[2022] SASC 130
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal against the decision of a Magistrate to dismiss an application for revocation of a final intervention order. The application was dismissed pursuant to s 26(4)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act).
It is necessary to give some history. The relevant intervention order was granted in Victoria in March 2017. There were four protected persons, two of whom are the respondents to this appeal. The defendant to the intervention order was the appellant in this appeal. The intervention order just mentioned was subsequently registered in South Australia on 13 April 2017. The protected persons were the same.
Earlier this year, the appellant before me made an application for the revocation of the order. That application was made in the Magistrates Court. On 10 May 2022 the matter came before a Magistrate sitting in Adelaide. That Magistrate listed the matter for a pre-trial conference on 8 July 2022. On 8 July 2022 the pre-trial conference was before a different Magistrate. The applicant on the revocation application (the appellant before me) was unrepresented.
The ex tempore reasons reveal the Magistrate heard submissions, including submissions from the applicant (the appellant before me). Having done so, the Magistrate dismissed the revocation application. Part of what the Magistrate said in his ex tempore reasons was the following:[1]
Counsel has pointed out correctly that s 26(4) of the South Australian Intervention Orders (Prevention of Abuse) Act is highly applicable to the circumstances that are before the court. The Act provides that on an application for the revocation of a final intervention order by the defendant the court may, without receiving submissions or evidence from the protected persons, dismiss the application if satisfied; (a) that the application is frivolous or vexatious but more importantly in this case; (b) if not satisfied there has been a substantial change in the relevant circumstances since the order was issued or last varied.
In those circumstances the court brought to the attention of Ms Somerville the provisions of s 26(4) and asked Ms Somerville what the change in circumstances was since the order was issued. The submission that had been made by the applicant, Kathleen Somerville, this morning very much summarised the content of the affidavit material which she has already filed in these proceedings. She has frankly admitted in court, and I think correctly, that what she says is that the Victorian Court should not have made the order that it did. This is not a substantial change in relevant circumstances since the order was issued.
In those circumstances on this application for the revocation for the final intervention order by the defendant Kathleen Somerville, I will without receiving further submissions or evidence from the protected persons dismiss the application. The application to revoke the Victorian intervention order is itself dismissed.
[1] Remarks on Penalty of Magistrate Soetratma, dated 8 July 2022, p. 1.
The appellant before me now appeals the order of the Magistrate dismissing the application. The appellant is unrepresented, and I mean no disrespect to her by describing her grounds of appeal as reflecting that. I will not read the grounds verbatim because I will summarise what I understand to be their effect.
It is sufficiently clear that the real complaint of the appellant is that the Magistrate fell into error by dismissing the application for the reasons which he gave.
The appellant has confirmed today that the basis for the application in the Court below was that it should not have been granted in the first place. The appellant submitted that the Magistrate who granted the application in Victoria in March 2017 was misled and, before the application was granted, the Magistrate did not extend her the opportunity to make submissions and completely put her position.
In submissions before me, the appellant made reference to at least one of the applicants for the original order setting out in a document, or documents, something that the appellant does not accept and also referred to the behaviour of the Magistrate.
As I have said, the issue before me on this appeal is whether the Magistrate made an error on 8 July 2022. My role is not to determine what happened in March 2017 in Victoria when the original order was made.
The appellant has not satisfied me that the Magistrate made an error on 8 July 2022.
I commence with the terms of s 26(4) of the Act. Section 26(4) provides:
On an application for variation or revocation of a final intervention order by the defendant the court may, without receiving submissions or evidence from the protected person, dismiss the application;
(a) if satisfied that the application is frivolous or vexatious; or
(b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
Plainly, a Magistrate can dismiss an application to revoke an intervention order without a completed trial. The section permits that to occur if the Magistrate is not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied. That is set out, as I have said, in s 26(4)(b).
That was not the basis for the application in the court below. It was not said that there had been a substantial change in the relevant circumstances since the order was issued or last varied. As was confirmed today by the appellant, the basis for the application before the Magistrate on 8 July 2022 was that the order should not have been granted in the first place. The application in the Court below was in the nature of a challenge to the granting of the order. That is, effectively, what was being sought was an appeal against the grant of the order back in March 2017. The Magistrate in the Court below on 8 July 2022 had no power to conduct an appeal or revoke the order on the basis which was advanced in submissions before him.
It may be observed that the power to revoke an intervention order is found in s 26(1) of the Act, which reads:
The court may vary or revoke an intervention order on application by;
(a) a police officer; or
(b) a person protected by the order or a suitable representative of such a person giving permission to apply by the court; or
(c) if the defendant or a person protected by the court is a child and there is a state child protection order (being an order under s.38 of the Children's Protection Act 1993 or a corresponding order made under s.53 of the Children and Young People (Safety) Act 2017) in force in respect of the child the minister responsible for the administration of that Act; or
(d) the defendant.
The discretion provided by s 26(1) is not predicated on the matters in s 26(4), but s 26(1) must be read in light of s 26(4).
In my view, it was open to the Magistrate to dismiss the application which was before him for the reasons he did, given the information before him. It is true that he could have listed the matter for trial, but I am not satisfied that on the information before him that was essential.
For the reasons given, I am not satisfied the Magistrate fell into error in dismissing the application to revoke the intervention order.
I dismiss the appeal.