KATHLEEN SOMERVILLE - [2023] SASCA 54

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE KIMBER) SCCRM-22-307 Applicant: KATHLEEN SOMERVILLE - Solicitor: SELF-REPRESENTED Respondents: K AND J SOMERVILLE - Solicitor: SELF-REPRESENTED Hearing Date/s: 24/05/2023 File No/s: SCCRM-22-016602 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SOMERVILLE v SOMERVILLE [2023] SASCA 54 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David) 24 May 2023 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO COURT OF APPEAL APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE CLEARLY WRONG ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL This is an appeal against a decision of a single Judge of the Supreme Court of South Australia dismissing an application for the revocation of an intervention order. The intervention order was initially granted ‘by consent without admission of allegations in the complaint’ in Victoria on 8 March 2017 (‘the intervention order’). It was transferred to South Australia on 13 April 2017. On 1 March 2022, the applicant filed an application in the Magistrates Court of South Australia to have the order revoked. Following a pre-trial conference on 8 July 2022, that application was summarily dismissed pursuant to s 26(4)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’) on the basis that there had been no substantial change in the relevant circumstances since the intervention order was issued. The applicant appealed that decision on the ground that the Magistrate fell into error by dismissing the revocation application. The Judge held the Magistrate did not err in proceeding pursuant to s 26(4) of the Act and dismissed the appeal. The applicant now seeks permission to appeal to the Court of Appeal on the ground that the Judge erred in finding that it was open to the Magistrate to summarily dismiss the application. Held, per the Court, granting permission to appeal and allowing the appeal: -- 1 of 12 -- 1. A court, before summarily dismissing an application for revocation of an intervention order, must consider whether, as at the date of the hearing of the application for revocation, it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the protected persons such that the continuation of the order is appropriate. A court will not ordinarily summarily dismiss the application unless persuaded that it has no reasonable prospects of success on those questions having regard to the fact that there has been no substantial change in circumstances. Cunningham v Police [2021] SASC 46 applied. 2. The Magistrate did not have regard to the appropriate criterion in determining whether to summarily dismiss the application for revocation of the intervention order. 3. The Judge erred in finding that it was open to the Magistrate to summarily dismiss the revocation application, for the reasons he did, pursuant to s 26(4)(b) of the Act. 4. The matter is remitted to the Magistrates Court. Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 3(1), 6, 15, 23, 23(3), 26, 26(4)(b); Family Law Act 1975 (Cth), referred to. Cunningham v Police [2021] SASC 46, applied. G v C [2020] SASC 134, discussed. -- 2 of 12 -- SOMERVILLE v SOMERVILLE [2023] SASCA 54 Court of Appeal – Criminal: Livesey P, Bleby and David JJA 1 THE COURT: On 8 March 2017, an application for an intervention order was granted in the Horsham Magistrates Court, Victoria and subsequently transferred to South Australia on 13 April 2017 (‘the intervention order’). The applicant in this appeal was the respondent to that intervention order and the respondents to this appeal were two of the four protected persons the subject of the intervention order, namely the applicant’s daughter and granddaughter. 2 The intervention order was granted ‘by consent without admission of allegations in the complaint.’ 3 On 1 March 2022, the applicant filed an application in the Magistrates Court of South Australia for the revocation of the intervention order. On 10 May 2022, the matter came before a Magistrate sitting in Adelaide. 4 During that hearing, the applicant submitted that the intervention order was decided on incorrect material and was therefore a ‘false application’. She asserted that she had no direct contact with the protected persons since 2013; and she was at risk of being wrongly accused of breaching the conditions of the order. The applicant, however, said that there had been two allegations of breaching the intervention order since it was put in place. The first was a charge brought in Victoria which was subsequently withdrawn. The second was a charge brought in South Australia in 2017. The applicant said that she pleaded guilty to that charge on the basis that she sent a Facebook birthday message to her granddaughter and was discharged without conviction. The respondents indicated that they opposed the application for revocation. 5 The Magistrate indicated that he believed the matter needed to proceed to trial and listed it for a pre-trial conference. 6 On 8 July 2022, a pre-trial conference was heard before a different Magistrate. During that hearing, the applicant reiterated the basis for her revocation application, namely that the order was issued on the basis of incorrect material. She acknowledged there had been no substantial change in circumstances since the order was made. 7 At the pre-trial conference, the protected persons were represented by counsel who urged the Magistrate to summarily dismiss the application under s 26(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’). 8 The Magistrate acceded to counsel’s submissions and summarily dismissed the revocation application because he was not satisfied there had been a -- 3 of 12 -- [2023] SASCA 54 The Court 2 ‘substantial change in the relevant circumstances’1 since the intervention order was issued. In his ex tempore reasons, the Magistrate said: 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 that 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 section 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. 9 The applicant appealed the decision before a single Judge of the Supreme Court of South Australia on the ground that the Magistrate fell into error by dismissing the application for the reasons which he gave ex tempore. All parties were unrepresented at the hearing. 10 It was the applicant’s submission that the intervention order should not have been granted in the first instance. The applicant asserted that the Victorian Magistrate who granted the intervention order in March 2017 was misled and, before the application was granted, did not afford her an opportunity to make submissions on her position. 11 The applicant contended that the original order was made on an erroneous basis. More specifically, the applicant submitted that the protected person KOS, in her written application, ‘falsely’ answered ‘no’ to a question as to whether there were any Court orders in place under the Family Law Act 1975 (Cth). There were in fact Federal Circuit Orders in place. On 12 June 2015, the applicant was restrained from contacting the respondents as part of broader parenting orders. The respondent, KOS, acknowledged that she had mistakenly answered ‘no’ to the question but emphasised that she had orally advised the Victorian Magistrate of the Federal Circuit Court orders, and indeed, it was because the applicant allegedly continually breached those orders, that she had applied for an intervention order. 12 On 3 November 2022, the Judge dismissed the appeal and gave ex tempore reasons. His Honour noted that the basis for the revocation application before the 1 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26(4)(b). -- 4 of 12 -- [2023] SASCA 54 The Court 3 Magistrate was that it should not have been granted in the first place; and that the Victorian Magistrate was misled, and did not extend the applicant the opportunity to make submissions and completely put her position. His Honour went on to say: 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. 13 The Judge then referred to the terms of s 26(4)(b) of the Act. His Honour said: 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. 14 The Judge was not satisfied that the Magistrate had made an error by dismissing the application for revocation pursuant to that provision. His Honour considered the Magistrate’s conclusion that there had not been a ‘substantial change in the relevant circumstances’ since the original intervention order was correct. His Honour said: 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. 15 The applicant now appeals against the Judge’s decision on the ground that the ‘order should not have been made as there were already orders in place’. 16 The question of permission to appeal was referred to this Court for consideration. -- 5 of 12 -- [2023] SASCA 54 The Court 4 The legislative regime 17 The Act provides, amongst other things, for the issue of intervention orders to prevent abuse. Section 6 sets out the grounds for issuing an intervention order against a person and provides: 6—Grounds for issuing intervention order There are grounds for issuing an intervention order against a person (the defendant) if— (a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and (b) the issuing of the order is appropriate in the circumstances. 18 Section 15 requires the Court, when issuing a final intervention order, to include a term fixing a date after which the defendant may apply for revocation or variation of the order, which must be at least 12 months after the date of issue or variation of the final intervention order. 19 There is provision for the issuing of interim intervention orders which is defined in s 3(1) to mean an interim intervention order issued by a police officer under s 18 or by the Magistrates Court under s 21. 20 Section 23 provides for a hearing by the Court to determine whether to make a final intervention order. Subsection 3(1) defines a ‘final intervention order’ to mean a final intervention order issued, or interim intervention order confirmed, by the Magistrates Court under s 23. 21 Relevantly, s 23(3) provides: (3) if a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds. 22 Section 26 provides for revocation or variation of an intervention order. It relevantly provides: 26—Intervention orders (1) 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 given permission to apply by the Court; or (c) if the defendant or a person protected by the order is a child and there is a State child protection order (being an order under section 38 of the -- 6 of 12 -- [2023] SASCA 54 The Court 5 Children's Protection Act 1993 or a corresponding order made under section 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. … (3) An application for variation or revocation of a final intervention order may only be made by the defendant after the date fixed by the order. (4) 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 vexations; or (b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied. (5) The Court must, before varying or revoking an intervention order under this section— (a) allow the Commissioner of Police, the defendant and each person protected by the order a reasonable opportunity to be heard on the matter; and (b) have regard to the same matters that the Court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order. 23 The construction of s 26 has recently been considered in G v C2 and Cunningham v Police.3 24 In G v C, an interim intervention order had been confirmed as a final order, by consent, and with a denial of the allegations underlying the application. The defendant subsequently applied for revocation of the final intervention order. A Magistrate dismissed the application on the basis that the defendant had failed to establish that there had been a substantial change in the relevant circumstances since the making of the order. Peek J, in allowing the appeal, considered that the Magistrate had misstated the test to be applied in considering the application for revocation. His Honour said:4 2 [2020] SASC 134. 3 [2021] SASC 46. 4 G v C [2020] SASC 134 at [30]-[35] per Peek J. -- 7 of 12 -- [2023] SASCA 54 The Court 6 The Magistrate here stated: “… The defendant can bring such an application. However, the test to be applied under s 26, in my view, is a two-step test. First, the court must be satisfied of a ‘substantial change’ in the relevant circumstances since the order was issued or last varied as envisaged by s (26)(4)(b). Secondly, if that test is satisfied, the court must have regard to, if varying or revoking an intervention order under the section, the same matters of [[sic] as] the court is required to have in [[sic]] regard to considering whether or not to make an intervention order and in considering the terms of an intervention order.” [Emphasis added] The Magistrate here referred to “the test to be applied under s 26” (which deals generally with applications for variation or revocation) and then purported to delineate a “two-step test” for resolution of all such applications. However, in doing so, his Honour erred in a serious way in that he incorporated what is a summary disposal provision (s 26(4)(b)) into a test which is said to be applicable to the disposition of all applications. Summary disposal provisions are quite common; they are often couched in terms similar to “frivolous or vexatious”, or may refer to unduly repetitious applications and so on. However, here the legislation provides for a substantial minimum time period for such an application and no one could reasonably suggest that the present application is of the “frivolous or vexatious” variety. The tail is not to wag the dog; the “rule” (or usual disposition) is a full hearing, and the exception to that rule is summary dismissal - not vice versa. If the mandatory 12-month period has elapsed, the usual course is to hold a full hearing. It is to be observed that the effect of granting of an intervention order can be draconian. As was observed in Rana v Gregurev: “[15] … because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.” In the present case, the Magistrate did not proceed on the basis that the application was “frivolous or vexatious”. Rather, his Honour thought that if there was apparently no “substantial change” in the relevant circumstances since the order was issued or last varied, then he was required ipso facto to dismiss the application. With respect, that is not the position. To take an explicative example, say a defendant is unrepresented at the hearing of an application to confirm an interim order and inadequately refers to the factors militating against confirmation, with the result that the order is confirmed. The defendant may remain saddled with that misfortune for a period of 12 months; but that is not to say that he should be so saddled for ever after. If on a subsequent application he retains counsel who persuades the Court that all of the circumstances at the time of the confirmation of the final order had been such that the order should never have been confirmed, then the Magistrate would have a discretion to revoke or vary the order. -- 8 of 12 -- [2023] SASCA 54 The Court 7 I therefore consider that the Magistrate misdirected himself concerning the nature of the discretion to vary or revoke the final order. Accordingly, the appeal would be allowed on this basis alone. However, I consider that other grounds of appeal are also established as appears below. (citations omitted) 25 In Cunningham v Police, Blue J proceeded on the basis that the construction of s 26 in G v C was correct. His Honour said:5 Peek J construed section 26 as providing for a default position of a final hearing at which the ultimate questions for the Court will be whether, as at the date of the final hearing, it is reasonable to suspect that the defendant will without intervention commit an act of abuse against the person and the continuation of the order is appropriate in the circumstances. Section 26(4)(b) merely confers on the Court a discretion to dismiss summarily if there has been no substantial change in the relevant circumstances since the final intervention order was issued. That provision does not oblige the Court to dismiss the application merely because there has been no substantial change. The Court would ordinarily not dismiss the charge summarily unless persuaded that the revocation application has no reasonable prospect of success on the ultimate questions having regard to the fact that there has been no substantial change in the circumstances. 26 Blue J considered the relevance of the historical circumstances in which a final intervention order is issued (including prior alleged acts of abuse) and, in doing so, drew a distinction between a revocation application made in respect of a contested final intervention order on the one hand, and a consent final intervention order on the other. In relation to a contested intervention order issued by the Court under s 23 of the Act, the order is final and conclusive on the merits for the purpose of the doctrine of issue estoppel. This will extend to any findings about past alleged acts of abuse or any factual findings on contested issues. Blue J made several observations as to the operation of s 26(4) in relation to an intervention order made after a contested hearing. His Honour relevantly said:6 Fifthly, in a case where the Court made findings about past and possible future acts of abuse in making a contested final intervention order, in practice (regardless of section 26(4)(b)) it will be necessary for the defendant to demonstrate that there has, since the making of the final intervention order, been a material change in the circumstances that gave rise to its making. Otherwise, since issue estoppel will preclude the defendant challenging the findings that gave rise to the making of the final intervention order, by definition the circumstances will still be the same and will continue to justify the ongoing operation of the final intervention order. Sixthly, and consequentially, in such a case, if the Court is affirmatively satisfied that there has been no substantial change in the relevant circumstances, the Court will have no real discretion but to dismiss the application summarily. However, if the Court is merely not affirmatively satisfied at that point that there has been a substantial change, the Court will have a discretion whether to dismiss the application summarily or order that it proceed to a final hearing. 5 Cunningham v Police [2021] SASC 46 at [51] per Blue J. 6 Cunningham v Police [2021] SASC 46 at [71]-[74] per Blue J. -- 9 of 12 -- [2023] SASCA 54 The Court 8 Seventhly, in the case where the Court made findings about past and possible future acts of abuse in making a contested final intervention order, if no application for summary dismissal is made, the matter will proceed to a final hearing. However, for practical reasons, when the matter is heard on the merits, if there has been no material change in the relevant circumstances, by definition the circumstances will still be the same and will continue to justify the ongoing operation of the final intervention order (as opposed to revocation). Finally, the operation of issue estoppel in relation to a contested final intervention order explains why the legislature included the criterion of no substantial change in section 26(4)(b) for summary dismissal. 27 Relevantly, Blue J also considered the application of s 26(4) when a revocation application is made in respect of a consent final intervention order. No issue estoppel will arise as a result of a consent final intervention order by reason of s 23(3), which provides for a consent final intervention order when the defendant disputes some or all of the grounds on which the order is sought and thus negates any issue estoppel arising. Blue J explained:7 On an application to revoke a consent final intervention order, for the reasons given above, the ultimate questions for the Court will be whether, as at the date of the final hearing of the revocation application, it is reasonable to suspect that the defendant will without intervention commit an act of abuse against the person and the continuation of the order is appropriate in the circumstances. The onus of proof will lie on the defendant to negate grounds for an ongoing intervention order (whereas the onus of proof lies on the applicant for an interim order under section 21 or final order under section 23). The questions will not be whether, as at the date when the consent final intervention order was issued, objectively there were grounds under section 6 to make the order. 28 Blue J concluded that:8 In summary, whether the Court will need to hear evidence or make findings about alleged pre-intervention order acts of abuse will depend on the approach of the parties. If it is put in issue by either party and the other party contests it, the Court will ordinarily have no choice but to hear the evidence. I observe that, when the revocation application is made in respect of a consent final intervention order, it may be expected that it will be a rare case in which the Court could summarily dismiss the application under section 26(4)(b). Disposition 29 The applicant contends before this Court that the Judge was in error in finding that it was open to the Magistrate to summarily dismiss her revocation application. 30 The issue for the Judge was whether the Magistrate made an error in summarily dismissing the application for revocation pursuant to s 26(4) of the Act in circumstances where it related to an intervention order made by consent and without admissions; and the applicant challenged the reasons underlying the making of the intervention order, and the basis for the making of the order. 7 Cunningham v Police [2021] SASC 46 at [82] per Blue J. 8 Cunningham v Police [2021] SASC 46 at [90] per Blue J. -- 10 of 12 -- [2023] SASCA 54 The Court 9 31 The Magistrate’s reasons are brief. We have also had the benefit of listening to the audio recording of the proceedings. The Magistrate noted that the applicant contended that the issuing court should not have made the intervention order, and this was the basis upon which she asserted the order should be revoked. The Magistrate then found this was not ‘a substantial change in the relevant circumstances since the order was issued’ and summarily dismissed the application for revocation. 32 The Magistrate did not consider the ultimate question or criterion for revocation namely, whether, as at the date of the hearing of the application for revocation, it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the protected persons such that the continuation of the order is therefore appropriate in the circumstances. The reasons for the making of the order, and any challenge to the basis upon which the order was made, potentially informed those questions. It was only if the Magistrate was persuaded that the revocation application had no reasonable prospect of success on that question, after taking into consideration the applicant’s challenge to the underlying basis for the order, and having regard to there being no substantial change in circumstances, that it would be open to the Magistrate to summarily dismiss the application. 33 In proceeding to dismiss the application solely on the basis that there had not been a substantial change in the relevant circumstances since the order was issued, the Magistrate did not have regard to the appropriate criterion in determining whether to summarily dismiss the application. 34 On appeal, the Judge found that the Magistrate did not make an error in proceeding pursuant to s 26(4) of the Act and summarily dismissing the application ‘for the reasons he did, given the information before him.’ For the reasons outlined above, the Judge was not correct in so finding; it was not open to the Magistrate to summarily dismiss the application on the basis which he did, and without properly considering the appropriate criterion. Again, those matters raised by the applicant in relation to the alleged erroneous basis upon which the order was made were potentially relevant to the ultimate questions to be determined on the application. 35 The Judge, having determined that there was no error by the Magistrate, did not undertake his own analysis of whether the application for revocation of the intervention order should be dismissed. 36 In those circumstances, we are satisfied that the Judge was in error, the appeal should be allowed, and the matter remitted to the Magistrates Court. 37 The future course of the hearing of the revocation application will depend on the evidentiary material ultimately put before the Magistrate; and whether it is necessary to adduce oral evidence challenging the underlying basis upon which the original intervention order was made. After receiving any such evidence, the Magistrate will then need to consider whether, as at the date of the revocation -- 11 of 12 -- [2023] SASCA 54 The Court 10 application, and informed by the evidence challenging the basis upon which the original intervention was made, it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the protected persons thereby rendering the continuation of the order appropriate in the circumstances. The Court would only dismiss the revocation application summarily if persuaded that it had no reasonable prospects of success on the ultimate questions having regard to the fact that there had been no substantial change in the relevant circumstances. 38 It is important to reiterate the observation made by Blue J in Cunningham v Police that when a revocation application is made in respect of a consent final intervention order, it may be expected that it will be a rare case in which the Court could summarily dismiss the application under s 26(4)(b) of the Act.9 We would add that this is particularly so should there be any challenge to the underlying basis upon which the consent intervention order was issued. Orders: 1. Permission to appeal is granted. 2. The appeal is allowed. 3. The revocation application is remitted to the Magistrates Court. 9 Cunningham v Police [2021] SASC 46 at [90] per Blue J. -- 12 of 12 --