White v Police No. Scgrg-97-1416 Judgment No. S6452

[1997] SASC 6452

WHITE  v  POLICE

Perry J   (ex tempore)

This case concerns a short point as to the manner in which the Magistrate ultimately dealt with a restraining order and more particularly an order for costs of the proceedings leading to a restraining order made pursuant to Part 4, Division 7 of the Summary Procedure Act 1921 ("the Act").

On 30 April 1997 at Port Wakefield Police Station, Mignon Jane Cave, who then gave the address of Government Road, Grace Plains, complained against the conduct of the appellant towards her, principally but not confined to a time when she had been living at Three Chain Road, Beaufort.  At that time the appellant was residing in an adjoining property.

She alleged in the affidavit that in about January 1997 an incident occurred at a BP Service Station.  She alleged that on that occasion, the appellant had sworn at her, and been seen "giving me the fingers", that he was drunk and had a stubbie with him at the time.  Although she could not hear what else he was saying, she could make out that he was swearing at her.

She asserted that another incident occurred at about the end of February 1997.  On that occasion, she alleged that the appellant abused her across the boundary fence between the two properties.  She said that while yelling at her, he stood on the roof of what she described as the chook house on his property, and that he then exposed himself to her.

She goes on in the affidavit to depose to another incident which is alleged to have occurred on 24 April 1997 at the Foodland store at Virginia.  By then, as I have said, she was living at Grace Plains, some distance away from the place of residence of the appellant.  She says that she came across the appellant in the supermarket, and that while laughing and yelling, he pushed a shopping trolley into her at least six times.  She asserts in the affidavit that her nephew was jammed between the trolley and her own groceries, that the force of the pushing of the trolley impacted into her stomach and jarred her neck, and that she was sore for several days afterwards.  She said further that her nephew had bruises up his back from being "stuck in the shelves".

On 8 May 1997, two justices of the peace, on the basis of her affidavit, made an ex parte restraining order in the absence of the appellant.

In accordance with s99C(2)(a) of the Act, the Court issued a summons to the appellant to appear before the Court to show cause why the order should not be confirmed.  The summons required the appellant to appear on 20 May 1997 for that purpose.

On that day the court was constituted of a Magistrate, who noted on the file that the defendant did not appear but that his father was present.  The file was endorsed to the effect that the restraining order was to continue.

The matter was adjourned to 16 June when the defendant appeared.  The matter was then stood over to 21 July.  Ms Brieley then appeared for the appellant.  The note on the file indicates that it was adjourned on that date to 20 August 1997 at 9.30 am "for PTC", which apparently means for a pre-trial conference.

When the matter came on for hearing on 20 August Mr Germein appeared for the appellant.  As I understand from Mr Germein, who has also appeared on the hearing of the appeal, he endeavoured to have the court proceed with the matter on that day.  But the Magistrate constituting the court declined to do so unless for a pre-trial conference, which apparently the appellant was not prepared to engage in.  In the result, the matter was stood over again, this time to 19 September.  On that day, Mr Germein appeared on behalf of the appellant before another Magistrate.

It is as to the orders which were made on 19 September that the appeal is brought.

The note on the file is:

"Complaint withdrawn.  His Honour discharges the interim domestic violence restraint order.  Mr Germein applies for costs.  Prosecution opposes application.  Remarks on file.  His Honour declines to order the prosecution to pay any costs."

It appears from the short extempore remarks there referred to that as well as an application for costs, the Magistrate was confronted with an argument as to the manner in which the matter was to be disposed of.

The words "complaint withdrawn" are an indication of the fact that apparently the complainant Ms Cave no longer wished to proceed with the matter.  In his extempore remarks the learned Magistrate said:

"The prosecution have indicated that they are not proceeding with the application.  The basis for that decision is apparently because the alleged victim has moved from her former address where the alleged harassment occurred and consequently the harassment has stopped.  It is unlikely to continue in the future as the alleged victim no longer lives in the area.  In view of the decision not to proceed I have revoked the interim domestic violence restraint order."

The learned Magistrate then refers to the fact that, contrary to an order for revocation, counsel for the defendant suggested that the restraining order should be allowed to lapse under s99C(2).

S99C(2) provides as follows:

1. A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case-

(a)     the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed; and

(b)     the order is not effective after the conclusion of the hearing to which the defendant is summoned unless-

1. the defendant does not appear at that hearing in obedience to the summons; or

1. the Court, having considered the evidence of the defendant and any other evidence adduced by the defendant, confirms the order."

The jurisdiction to revoke a restraining order (or vary it) arises under s99F:

1. The Court may vary or revoke a restraining order on application-

(a)     by a member of the police force; or

(b)     by the person for whose benefit the order was made; or

(c)     by the defendant.

1. A firearms order cannot be revoked unless the Court is satisfied-

(a)     that the restraining order should be revoked in its entirety; or

(b)     that the defendant has never been guilty of violent or intimidatory conduct and needs to have a firearm for purposes related to earning a livelihood.

1. The Court must, before varying or revoking a restraining order-

(a)     allow all parties a reasonable opportunity to be heard on the matter; and

(b)     have regard to the same factors that the Court is required to have regard to in considering whether or not to make a restraining order and in considering the terms of a restraining order."

The argument put to the learned Special Magistrate in the court below and repeated before me by Mr Germein, was that it was not proper for the learned Magistrate to order a revocation as opposed to allowing the order to become ineffective by virtue of the operation of s99C(2).

In my opinion, that argument should be rejected.  It appears to me that in any event the appellant is better off with a revocation order, because that means that the situation is as though no order was ever made.  I would have thought the appellant would feel more comfortable with that than if the order was left to cease to be "effective after the conclusion of the hearing" under s99C(2)(b).  In the latter case, there would be an order which was effective for a period of time, in this case between 8 May 1997 and 19 September 1997.

It was not suggested by Mr Germein that any of the preconditions to the making of a revocation order under s99F did not exist.  He simply submitted that the appropriate course in this case would have been to allow the order to cease to be effective under s99C(2).  For the reasons indicated I reject that submission.

In any event, the answer to whether or not the order should have been revoked or should have been allowed to become ineffective does not have any bearing on the real argument in this appeal, which seems to me to be an argument concerning the order made as to costs.

The substantial point on the appeal is whether or not the order as to costs, that is that there be no order against the prosecutor to pay the appellant's costs, should be interfered with.

In that part of his reasons in which he deals specifically with the question of costs, the learned Magistrate states:

"One of the relevant factors to my mind is the issue of public policy.  Members of the public are entitled under the Summary Procedure Act to seek out the assistance of the police and in due course the courts if they believe that they are being harassed by some other person.  That is precisely what has occurred in this particular case.  Of course, it will be for the court to determine whether or not there is any truth in the allegation of harassment.  One relevant consideration is whether or not the court can be satisfied the harassment, if it has occurred, is likely to be continued into the future.  In determining that aspect of the mater it is relevant whether or not the parties are still living within a reasonable proximity of each other which might indicate that there is the probability of the behaviour continuing or whether there is a sufficient distance between the parties for the court to genuinely say that whilst there may have been harassment in the past, given the distance that the parties live apart that is unlikely to be repeated in the future.  Here the defendant has succeeded in forcing the victim from the victim’s former home.  The question arises whether he should be rewarded by way of an order for costs in those circumstances.  My view is that he should not."

I must say that it does appear that there was a misconception operating on the mind of the learned Special Magistrate with respect to that part of those observations in which he deals with the reasons why the alleged victim moved from her former address.

The reason why the alleged victim changed her address does not appear on the material which was before the court.  The conclusion that it resulted from any conduct on the part of the appellant cannot therefore be sustained.  Ms Paulson, who appeared for the respondent on the appeal, conceded that point.

It is common ground between the parties that the discretion as to costs arises under s189 of the Act.  The discretion is more or less at large under that section, and it is clear that this Court does not interfere with the exercise of the discretion unless its exercise has been tainted by an error of principle, or a misapprehension of fact, or unless it appears that having regard to the circumstances, the order simply could not be justified.

Here I have indicated that there was one error of fact made by the learned Special Magistrate in the course of arriving at his decision on the question of costs.  For that reason I consider that it is proper for this Court to revisit the exercise of the discretion afresh.

In proceeding to do so, I have regard to the circumstances as they appeared before the learned Special Magistrate and the history of the matter as I have outlined it.

One must start with the proposition that sufficient evidence was placed before the officers at Port Wakefield police station on the 30 April 1997, in the form of the affidavit of Ms Cave, to justify the making of the ex parte restraining order.  The justices of the peace who made the order on 8 May must have been satisfied that it was proper to make the order.  In my opinion, that was a correct decision.

But of course, the truth of the assertions contained in that affidavit and the legitimacy of the order in the sense whether or not on the merits it might have been sustained, were never gone into.

Mr Germein made much of the fact that from the reasons of the learned Magistrate, and in particular the indication in them that the prosecution was not proceeding with the application because the alleged victim had changed her address, the learned Magistrate must be taken to have proceeded under a misapprehension.  Literally that must be so, because the alleged victim had changed her address before the restraining order had been made, indeed, before she came in to swear her affidavit and seek the issue of the proceedings.

However, the answer I think is that although she had changed her address before then, and indeed deposes to that in her affidavit, clearly the alleged incident which occurred in the Foodland store must be taken to have prompted her to think that, notwithstanding her change of address, there was still a situation in which she needed some help in coping with what she maintained were acts of harassment or intimidation on the part of the appellant.

But the matter was adjourned for several months thereafter, and there was no evidence of any repeat of conduct of that kind on the part of the appellant in the intervening period.  So that standing back from the matter, it is easy enough to understand that by the time the matter came before the learned Magistrate on 19 September 1997, the alleged victim obviously was of the mind that there was no purpose to be served by proceeding any further with the complaint.  It is not to be overlooked that by then the appellant had been served with the interim restraining order.

So that we have a situation in which although there was justification for the order to have been made in the first place, it was ultimately not proceeded with, apparently because of the course of events which I have just described.

The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty.  In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation.  That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.

Part of the costs relate to an attendance on what was thought to be a pre-trial conference, but which aborted for reasons which I have explained.

Mr Germein has put forward the argument that it is inappropriate to hold a pre-trial conference in matters of this kind, and that through no fault of the appellant, there was a wasted attendance on 20 August 1997.

In aid of that submission, he drew attention to the decision of Duggan J in Moore-McQuillan v Police.

With respect to that submission, I do not think that in that case Duggan J went so far as to suggest that pre-trial conferences could not properly be held under the Magistrates Court Rules in proceedings involving applications for restraining orders.

While it is true that rule 26.05 is within a rule which speaks of pre-trial preparation, and has mainly to do with summary trials (see, for example, rule 26.01), rule 26.05 states:

"To ensure compliance with rule 8 and this rule the court may on notice to the parties require that they attend a pretrial conference."

Rule 8 is a rule which deals generally with case flow management in terms which are familiar now in most jurisdictions.  They are rules which are designed to establish orderly procedures for the conduct of litigation and to promote the just and efficient determination of it.  It is part of case flow management procedures that they involve creating opportunities for the parties to dispose of proceedings other than by a fully contested formal hearing.

I would like to think that those procedures have their part to play in dealing with applications for restraining orders.  Such proceedings are often marked by a degree of animosity between the parties and strained or broken relationships.  There is much sense in the view that procedures of the court designed to facilitate resolution of the matter other than by a fully contested hearing should sensibly be available in such cases.

I would therefore not accept the submission that it was inappropriate, or for that matter jurisdictionally incompetent, to order a pre-trial conference in this matter.

I have not found the question of determining the appropriate order for costs easy to resolve.  But it seems to me, looking at the matter overall and given the history of it and considerations to which I have referred, it could not be said that the learned Special Magistrate erred in declining to order that the prosecution pay costs.  I would, therefore, exercising the discretion afresh, nonetheless confirm that order, that is, that there be no order as to costs.

The appeal is dismissed.

[FOLLOWING DISCUSSION BETWEEN COUNSEL]

HIS HONOUR:          no order as to the costs of the appeal.