Strained relationship Between Neighbours Resulted In filing of Interim Intervention Orders

J v P; J v R; J v PROTECTED PERSONS [2022] SASC 45 (16 May 2022)

The respondents sought and were granted interim intervention orders against the appellant.  The appellant sought but was refused an interim intervention order against the respondents.  The Court, in determining whether the appeals against the grant of the two interim intervention orders against the appellant are valid, assessed the circumstances in which the interim intervention orders have not yet proceeded to a hearing.

Facts:

The appellant and respondents have been neighbours for about 18 years.  The neighbours’ relationship initially was positive, however, it deteriorated.  The appellant asserts that the respondents have, among other things, thrown faeces into the appellant’s driveway, gossiped about her in their back garden, screamed at her and sworn at her, thrown objects over the fence, and poisoned her plants.  The respondents assert that in 2012 the appellant installed cameras pointing directly at their back door and backyard in order to spy on the respondents. 

They allege unacceptable conduct by the appellant such as playing loud music at 6.00 am on weekends, squirting a hose at the fence, spraying water onto the respondents’ cars, and behaving in a way to annoy them.  The respondents allege that the appellant takes photographs and video footage of the respondents and their teenage children and has attended the workplace of one of the teenage sons complaining about him to his manager.  The parties attended a mediation in about 2011 which was unsuccessful.  

On 17 September 2021, the appellant applied for an intervention order as against the respondents.  On 29 September 2021, a Magistrate refused the appellant’s application.  On 30 September 2021, one of the respondents, R, applied on behalf of herself, her husband, and her two teenage sons for interim intervention orders against the appellant.  Interim intervention orders were made on 3 November 2021.

A mediation took place on 1 December 2021 between the parties. The mediation was unsuccessful.  On 12 January 2022, a Magistrate made an order adjourning the matter to 13 July 2022 to assess if the parties are able to abide by the terms of the interim orders and come to an agreement, failing which the matter will proceed.  Although the Magistrate was satisfied the appellant had experienced genuine distress, she was not satisfied it was appropriate to issue an interim intervention order.

Issue:

Whether or not the Court should allow permission with respect to the appeal. 

Applicable law:

Intervention Orders (Prevention of Abuse) Act 2009 (SA) - provides for applications for an intervention order to be made to the Magistrates Court.

Magistrates Court Act 1991 (SA) sub-s 42 - provides that 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).

Supreme Court Criminal Rules 2014 (SA) r 104V - pursuant to which the hearing is to occur by way of re‑hearing.

Groom v Police (No 3) [2013] SASC 93; (2013) 231 A Crim R 1 - provides that the words “before commencement or completion of the trial” in s 42(1a)(c) of the Magistrates Court Act only operate when they are relevant. 

Kiparoglou v Fantinel [2021] SASC 90 - Kourakis CJ confirmed that a dismissal of an ex parte application for an intervention order is interlocutory in nature. 

Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126 - held that the Court has power to grant permission for an interlocutory appeal if it is satisfied there are special reasons why that would be in the interests of the administration of justice.

Thakur v Police [2016] SASC 75; (2016) 125 SASR 180 - held that an arguable case would generally be sufficient to establish special reasons.

Analysis:

The gist of the appellant’s complaints is that she is the victim requiring protection from the respondents rather than the other way around.  The respondents maintained the interim intervention orders in their favour were necessary and had generated a peaceful situation in the months since the imposition of the orders.  

The appellant acknowledged that final intervention orders had not yet been made but asserted that when the parties appeared before the Magistrate at the hearing in January (which resulted in the adjournment of the matter to July 2022) the Magistrate forcefully required her to accept that order.  There is no material before the Court in relation to the asserted conduct of the Magistrate at the hearing.

The appellant contended there was an error because the information was missing, that is, in relation to the asserted theft from her house of documents relating to the mediation.  The appellant rightly conceded that she could not accuse the respondents of the theft without evidence.  The asserted theft of the letters thus could not have constituted an act of abuse by the respondents (nor potentially be fresh evidence) and the asserted missing information does not give rise to appealable error. 

Conclusion:

The Court refused permission to appeal in respect of all three appeals.