Van Hoof v Police - [2009] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
VAN HOOF v POLICE
[2009] SASC 101
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kelly)
14 April 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
PROCEDURE - COSTS - APPEALS AS TO COSTS - JURISDICTION TO ENTERTAIN
Application for permission to appeal to the Full Court against a decision of a single Judge - Magistrate dismissed a complaint seeking a restraining order against the applicant - applicant sought an order for costs - costs can only be awarded if complainant shown to have acted in bad faith or unreasonably in bringing proceedings for restraining order - Magistrate found that the complainant had not acted in bad faith and made no order as to the costs of the proceedings - applicant appealed to single Judge against decision of Magistrate not to award the applicant his costs - single Judge dismissed appeal - whether permission to appeal should be granted.
Held: permission to appeal granted only if some issue of principle arises or if the interests of justice call for the grant of permission - permission rarely granted for the purpose of re-examining the question of costs - no issue of principle in the present case - unlikely that, notwithstanding an apparent factual error on the part of the single Judge, the Full Court would make an order for costs in favour of the applicant - permission to appeal refused.
Summary Procedure Act 1921 (SA) s 189(2a); Domestic Violence Act 1994 (SA) s 4, s 9; Supreme Court Act 1935 (SA) s 50(4)(a)(ii), referred to.
Van Hoof v Police [2009] SASC 48, discussed.

VAN HOOF v POLICE
[2009] SASC 101
Full Court: Doyle CJ, Anderson and Kelly JJ

THE COURT: This is an application for permission to appeal to the Full Court.
Permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). Permission is required because the judgment the subject of the proposed appeal is a judgment given by a single Judge on appeal from a judgment of the Magistrates Court.
On 15 July 2008 Ms Knott, a member of the police force, laid a complaint against Mr Van Hoof seeking a restraining order against him under s 4 of the Domestic Violence Act 1994 (SA). The complaint was supported by an affidavit sworn by Ms Herbert, who was living in a domestic relationship with Mr Van Hoof.
On 16 July 2008 a Magistrate made an order in the absence of Mr Van Hoof, as permitted by s 9 of the Domestic Violence Act (“the interim order”). The interim order was made on the basis of the affidavit.
In due course the complaint came on for hearing.
After hearing evidence the Magistrate discharged the interim order and dismissed the complaint.
In substance, the Magistrate did so because he rejected most of the evidence of Ms Herbert, on whose evidence the complaint was laid. He found that there was no reasonable apprehension that Mr Van Hoof might commit domestic violence.
Mr Van Hoof applied for an order for costs against the complainant. The power to order costs is conferred by s 189(2a) of the Summary Procedure Act 1921 (SA) which provides:
189 Costs
…
(2a) Costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
…
The Magistrate declined to make an order for costs in favour of Mr Van Hoof. However, his reasons address only the question of whether the complainant had acted in bad faith. He makes no reference to the question of whether the complainant acted unreasonably. It appears that he failed to address that question.
Mr Van Hoof appealed against the Magistrate’s decision.
A Judge of this Court dismissed the appeal: Van Hoof v Police [2009] SASC 48.
In dismissing the appeal, the Judge referred to the fact that in her affidavit Ms Herbert does not refer to the fact that the police had attended at her house the day before she swore her affidavit. The significance of this was that two police officers did attend at the house, and formed the conclusion that there was no threat of domestic violence at that time. The Judge said that there was an inconsistency between the affidavit of Ms Herbert, and statements by the two police officers who had attended the house. The Judge took the view that if Ms Herbert had disclosed that the police had attended at the house, this probably would have come to the attention of the complainant, that the inconsistency between Ms Herbert’s statement and what the police officers concluded on the day in question would have emerged, and probably the proceedings would not have been instituted. The Judge’s dismissal of the appeal was influenced by the circumstance that taking Ms Herbert’s affidavit at face value, there were proper grounds to support the making of the application to the court for an order.
Unfortunately, it appears that the Judge erred.
In para 20 of Ms Herbert’s affidavit she describes events on the day in question. She says that she called the police and refers to the fact that the police arrived in due course. She does not name them, and, perhaps not surprisingly, says nothing about what they did.
The submission in support of the application for permission to appeal is that the Judge has erred, that Ms Herbert disclosed the fact that the police came to the house, and that the complainant acted unreasonably in laying the complaint without making enquiry of the police officers who went to the house, and without considering their conclusion at that time as to the threat of domestic violence.
There is some force in this point. However, it is apparent from Ms Herbert’s affidavit, and from what the two police officers said, that by the time they arrived at the house things had settled down. The question of whether there was a reasonable apprehension that Mr Van Hoof might, unless restrained, commit domestic violence was not to be decided solely by reference to the circumstances as they were when the police arrived. In her statement Ms Herbert referred to earlier incidents that might support a conclusion that there was a reasonable apprehension that Mr Van Hoof would commit domestic violence. Moreover, it is apparent from the reasons of the Magistrate that he dismissed the complaint because, when she gave evidence, Ms Herbert was demonstrated to be unreliable. It is not obvious that, had the complainant discussed the situation with the police officers who had attended the house, the complainant would or should have concluded that a complaint should not be laid.
The Court will usually grant permission to appeal from a single judge to the Full Court only if some issue of principle arises, or if the interests of justice call for a grant of permission to appeal.
No issue of principle arises here. If permission to appeal is granted the end result will be that the Full Court will have to consider, once more, whether it has been demonstrated that the complainant acted in bad faith or unreasonably.
While one must acknowledge that the applicant has an arguable case for an order for costs, it is only rarely that permission to appeal would be granted for the purpose of re-examining the question of costs.
In the present case, although the applicant has an arguable case, the Full Court might well conclude that no order should be made as to costs. A police officer who has to make a decision whether to issue a complaint will usually only have one side of the story. It does not follow that had the complainant spoken to the police officers who went to the house, the complainant would have concluded that a complaint should not be issued.
Another point to be borne in mind is one made by the single Judge. On the basis of Ms Herbert’s affidavit, it was understandable that the complainant thought that a complaint should be laid. The statements of the police officers who went to the house on the day in question do not undermine what Ms Herbert said, they merely demonstrate that by the time they arrived there was no threat of domestic violence, and nothing in particular to give rise to an apprehension that domestic violence might occur later. The police officers could say nothing about the earlier incidents relied on by Ms Herbert to support her case for a complaint. It was the cross-examination of Ms Herbert that caused the Magistrate to reject the complaint.
The applicant has an arguable point, namely, that there is, on the face of it, an error in the reasoning of the Judge. The question is whether the Full Court, having corrected that error, would then make an order for costs in favour of the applicant.
It is likely in the circumstances set out earlier in these reasons that the Full Court would not make an order for costs in favour of the applicant. The error by the Judge would not lead to the conclusion that the complainant had acted in bad faith or unreasonably in bringing the proceedings, as required by s 189(2a) of the Summary Procedure Act.
In those circumstances this is not an appropriate case for the grant of permission to appeal.
Permission to appeal is therefore refused.