Ivan Barkovic v Giuliana Deborah Serenellini [2000] ACTSC 34 (4 May 2000)

Last Updated: 16 October 2000

Ivan Barkovic v Giuliana Deborah Serenellini [2000] ACTSC 34 (4 May 2000)

CATCHWORDS

COURTS AND JUDICIAL SYSTEM - Magistrates Court - application for interim restraining order - a succession of interim restraining orders issued - whether orders valid - orders tainted by numerous procedural irregularities - proceedings improperly adjourned by Deputy Registrar - terms improperly varied by Deputy Registrar - order issued after hearing before Deputy Registrar and signed by Magistrate in chambers - orders invalid.

APPEAL - from Magistrates Court - appellant convicted of contravening an interim restraining order - whether Magistrate erred in finding interim restraining order was valid - interim restraining order invalid - charge alleging breach of order unsustainable - conviction and penalty set aside.

Magistrates Court Act 1930, s 197, 199, 204, 206A, 206B, 206C, 206J, 206L

Magistrates Court (Civil Jurisdiction) Act 1982, s 22, 191, 193

Heinrich v Attorney-General and Anor [1967] SASR 78

AG (SA) (ex. ref. Mills) v Hughes (1867) 1 SALR 49

Bainbridge-Hawker v Minister for Trade & Customs (Cth) [1957] HCA 56; (1958) 99 CLR 521)

R v Andrew Nicholas Sarri [1999] ACTSC 109 (22 October 1999),

No. SCA 117 of 1998

Judge: Higgins J

Supreme Court of the ACT

Date: 4 May 2000

IN THE SUPREME COURT OF THE )

) No. SCA 117 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IVAN BARKOVIC

Appellant

AND: GIULIANA DEBORAH SERENELLINI

Respondent

ORDER

Judge: Higgins J

Date: 4 May 2000

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld. The conviction and penalty be set aside.

1. This is an appeal against a conviction recorded and penalty imposed upon the appellant on 2 December 1998 by Magistrate Doogan.

2. The appellant had pleaded not guilty to a charge that he, on 1 November 1998, had contravened an interim restraining order (IRO) purportedly made pursuant to Part 10 of the Magistrates Court Act 1930 (ACT) (MCA) on 28 July 1998 and in which he was named as "the respondent".

3. The respondent to this appeal was the informant in those proceedings. Although, of course, nothing turns on it, it is inappropriate for the title of these proceedings to include the respondent's rank. It is not a part of her name. She is not a corporation sole or otherwise entitled to sue or be sued in some official capacity (see eg. Heinrich v Attorney-General [1967] SASR 78); AG (SA) (ex. ref. Mills) v Hughes (1867) 1 SALR 49; Bainbridge-Hawker v Minister for Trade & Customs (Cth) [1957] HCA 56; (1958) 99 CLR 521). The title of these proceedings is amended accordingly.

4. The IRO in question was said to be reflected in a document dated 28 July 1998. The appellant is (or then was) a next door neighbour of the aggrieved person, Mr Spiro Adamopoulos (named as "the applicant" in the IRO). The appellant was, according to the terms of the IRO, prohibited (inter alia) from:

"...approaching within 100 metres of the Applicant ...EXCEPT WHEN THE RESPONDENT IS APPROACHING, RESIDENT ON OR LEAVING 25 GRAINGER CIRCUIT, MELBA WHEN THE DISTANCE SHALL BE 5 METRES."

5. The IRO, it was conceded, had been served upon the appellant before 1 November 1998.

6. It was alleged that, on 1 November 1998, whilst Mr Adamopoulos was mowing his lawn, the appellant walked along the adjacent public footpath thereby approaching within two metres of Mr Adamopoulos. Having passed Mr Adamopoulos, the appellant then turned around and walked back past him, passing within a similar distance once more.

7. Although the appellant denied that he had so approached Mr Adamopoulos, another neighbour gave evidence which corroborated Mr Adamopoulos' version of the event.

8. On this appeal, Mr Thomas, for the appellant, conceded that her Worship had been entitled to accept the evidence of Mr Adamopoulos and to have rejected that of the appellant. Indeed, it seemed to me that such a conclusion was not only reasonably open to her Worship but was also one which, given her advantage in seeing and hearing the evidence of the relevant witnesses, should be supported. There was no complaint as to the severity of the penalty imposed. It was Mr Thomas' contention, however, that the purported order of 28 July 1998 had not been validly in force as at 1 November 1998 so that the appellant's conduct could not have been an offence.

The prior history

9. The IRO dated 28 July 1998 had its genesis in an application made, on 3 November 1997, by Mr Adamopoulos both for a final restraining order (RO) (ie. of not more than twelve months duration) and for an IRO.

10. The application was based upon allegations made by Mr Adamopoulos that the appellant:

"caused personal injury and/or damaged property in that: Ivan Barkovic entered my property, caused damage to my home and threatened to kill me,

and unless the Respondent is restrained the Applicant believes that such conduct is likely to happen again.

Threatened to cause personal injury and/or damage property in that: When Ivan Barkovic entered my property he threatened to kill me. He has told numerous other people that he was going to kill me.

an (sic) unless the Respondent is restrained the Applicant believes such conduct is likely to happen again.

Engaged in conduct of such (sic) an offensive or harassing nature in that: Ivan Barkovic engages in provocative behaviour, especially towards my children. He also engages in loud activities outside legal hours."

11. It will be observed that the proforma parts of this application (those underlined) generally followed the terms of s 197 MCA, that is,:

"(1) The court may, on application and if satisfied on the balance of probabilities that -

(a) the respondent has caused personal injury or damage to property and, unless the respondent is restrained, the respondent is likely to cause further personal injury or damage to property;

(b) the respondent has threatened to cause personal injury or damage to property and, unless the respondent is restrained, the respondent is likely to carry out the threat; or

(c) the respondent has behaved in an offensive or harassing manner;

make an order restraining the respondent..."

12. The allegations as particularised were of past property damage and threats to "kill" the applicant. That conduct would enliven part of s 197(1)(a) and (b) MCA (supra). Whether the conduct alleged in the final paragraph of those particulars was in fact "offensive" or "harassing" could not be ascertained without further particularization.

13. There is no express requirement that, to enliven the discretion to make a restraining order, the offensive or harassing behaviour must be such that it is likely to be repeated. However, the legislative scheme for restraining orders is such that the making of an order is not to be regarded as punishment for past wrongdoing but as protection for the aggrieved person against future misconduct of the proscribed kind.

14. In my opinion, it follows that, to enliven the discretion to make a restraining order, the offensive or harassing conduct must have a continuing or repetitive character. An instance of such conduct, absent a concomitant likelihood of repetition, would not, in my view, enliven the power to make an order under s 197 MCA.

15. An application for a RO must be served on the respondent before it may be granted (see s 206A MCA). However, it is possible, under s 206B MCA, to make such an order exparte where there has been service on the respondent but the latter has failed to appear.

16. The applicant had also sought an IRO. Such an order may be made before the respondent is served with the application.

17. The power to make such an order is contained in s 206C MCA. Whilst such orders may be made in the presence of and after hearing the respondent to the application for them, they are, typically, made exparte. They are made without a final determination as to the truth or otherwise of the aggrieved person's allegations.

18. The conditions required to be satisfied before a power to make an IRO is enlivened are specified as follows in s 206C MCA:

"(1) Where -

(a) an application has been made; and

(b) the court is satisfied that it is necessary, in order to ensure the safety of the aggrieved person, to make an interim restraining order;

the Court may make an interim restraining order..."

19. However, that power may not be exercised unless "the application is supported by oral evidence on oath given by the applicant or the aggrieved person" (s 206C(2) MCA).

20. It follows that the "evidence", when given, must at least be capable of supporting a conclusion that the making of an IRO is "necessary" to ensure the "safety" of the aggrieved person. In my opinion, "safety", in that context, includes prevention of harm to the aggrieved person's health or property.

21. Mr Adamopoulos gave evidence on oath on 3 November 1997 before Magistrate Ward. A transcript of it was tendered on the hearing of this appeal. In it, Mr Adamopoulos stated that the entry onto and damage to his property had taken place in the previous November, ie. 1996. The respondent had uttered a threat to kill on that occasion, (though the terms of it were not stated). There was no evidence as to whether the threat was such as might be taken seriously as a serious threat of intended physical harm rather than as mere abuse or as part of a course of harassment. There was another such threat (similarly unparticularized), Mr Adamopoulos said, in April 1997, "through a third party".

22. He was asked about the "provocative noise".

23. In response, he said:

"For example, yesterday the son started up the lawn mower at 8.30 at night because the sun was still shining, presumably, and will operate heavy machinery at all sorts of hours and obviously, would work (sic) loud music just to annoy the children and the family."

24. It may be observed that this evidence would not have warranted a finding of offensive or harassing conduct otherwise than, possibly, on the part of the son. Further, as his Worship pointed out, a noise abatement order could have been obtained from the Small Claims Court. In any event, there was no suggestion that the son's noise making activities imperilled the "safety" of Mr Adamopoulos.

25. In April (presumably 1997), Mr Adamopoulos said, the appellant had, from his own back-yard, called out to him to "come on". However, it was not alleged that the appellant made any move to trespass upon Mr Adamopoulos' property or to approach him threateningly. The latter reported that incident to police, and, he went on to say:

"The police then made an order that he not approach the suburb of Melba. He was then restrained from even coming into the district. He has since been incarcerated ... and he's soon to get out."

26. Mr Adamopoulos added that he was not sure when the appellant was to be released from prison but believed he was in custody for breach of a restraining order.

27. That evidence did not warrant the making of an IRO as at that date. The evidence above quoted could not have been accurate (police do not make restraining orders - as it transpired they had not). However, without further enquiry or evidence, an IRO was made in the terms requested by Mr Adamopoulos.

28. Even leaving aside the fact that the terms of the order included prohibitions on conduct the appellant had never been alleged to have engaged in or threatened to engage in, the terms were, in part, quite absurd.

29. The appellant was prohibited, despite living next door to Mr Adamopoulos, from approaching within one hundred metres of him. He was prohibited from being upon (inter alia) Belconnen Mall, whether Mr Adamopoulos was present in the complex or not.

30. It is impossible to credit that there was any real exercise of judicial discretion in the decision to grant the IRO in the terms in which it was made.

31. If it was relevant for present purposes to do so, I would declare that order to have been invalidly made. That conclusion is not based on the fact that it was attended by an error of fact. It is because it was made without the power to do so being, even colourably, enlivened.

32. The IRO was expressed to expire on 13 November 1997 at 4.00pm. The substantive application was adjourned and listed "for conference" at 9.30am on that day at the Magistrates Court.

33. There was also generated and placed upon the file a "Confidential" document containing information concerning the appellant. Some was formal enough (name, address etc). Other matter detailed alleged prior convictions and further alleged that "numerous weapons" were held by the appellant (It later transpired that the "numerous weapons" were the appellant's tools of trade). It also disclosed that the appellant was "currently in jail".

34. On 13 November 1997, Mr Adamopoulos attended before Mr David Fisk, a Deputy Registrar of the Magistrates Court. Mr Fisk, by leave, gave evidence before me on the hearing of this appeal. I considered it desirable, acceding to the submissions of Mr Whybrow for the respondent, that the sometimes cryptic references on the Magistrates Court Bench Sheets be explained, and, where necessary, supplemented, to indicate what really happened.

35. The purpose of the initial appearance before "the Registrar", Mr Fisk stated, was to see if an agreement could be made between the parties (assuming all were present).

36. In this instance, there had been no service upon the appellant by the adjourned date. It was noted that the appellant was then detained at Cooma Correctional Centre (Cooma Gaol). Mr Fisk further noted on the Bench Sheet that the superintendent at Cooma Gaol had advised him that the appellant was not due for release until 26 February 1998.

37. The substantive application was, accordingly, adjourned to 4 March 1998 at 9.30am "for conference" (as noted on the Bench Sheet) and "for determination by the Registrar" (as noted on the "Notice of Proceedings").

38. That was not intended, Mr Fisk explained, to indicate that the Registrar (or a Deputy) would hear the matter if it was contested. The Registrar (or a Deputy) would first confer with the parties, usually separately, and, absent consent to an agreed form of order, refer them to a Magistrate in court.

39. On this occasion (13 November 1997), Mr Fisk made a note on the Bench Sheet, as follows:

"IRO extended to 4.00pm on 4 March 1998, as per IRO except that Para 2(iii) delete reference to shopping centres and Para 4 add "except at Belconnen Mall and Charnwood Shopping Centres where the distance prohibited be 30 metres and the Resp shall not approach or contact the App or children.

NSW Police to serve at Comma Correct. Centre."

40. There followed the signature of Mr Adamopoulos signifying, Mr Fisk said, the latter's assent to the proposed changes to the IRO.

41. Mr Fisk then reported to Magistrate Dingwall in chambers. Without any input from the applicant other than Mr Fisk's assertion that the applicant had signed the Bench Sheet notation, Magistrate Dingwall also signed it. The IRO, if it had been issued in accordance with that note, was still expressed in absurdly wide terms.

42. In consequence of his Worship's signature, the Registry generated a document entitled "Interim Restraining Order". The terms of the order as issued were not the same as those assented to by Mr Adamopoulos. There was added a term which further reduced the "approach distance", when the appellant was entering or leaving 25 Grainger Circuit, Melba, to five metres. That did remove (purportedly) the absurdity that otherwise would have prevented the appellant from entering or leaving his own home whilst Mr Adamopoulos was present next door.

43. The order recited that it was made after application:

"Before a Deputy Registrar on the 4^th day of March 1998 with the order being signed by Magistrate DINGWALL, in chambers, in the absence of the parties."

44. It further recited that it had been made after:

"Oral evidence on oath was given before the Court by the Applicant in support of the Application [and] The Court finds it necessary to ensure the safety of the Applicant and the children [of the Applicant]."

45. The terms of the previous IRO were, obviously, purportedly varied, once at the suggestion of Mr Fisk and agreed to by Mr Adamopoulos, then sometime after the note was signed by the Magistrate and before the formal order issued.

46. The power to vary an existing IRO is contained in s 206J MCA. It provides:

"(1) Where a restraining order or interim restraining order is in force, the court may, on application by -

(a) a party to the proceedings in which the order was made; or

(b) the aggrieved person;

vary or revoke the order.

(2) The registrar shall cause a copy of the application to be served personally on each other party to those proceedings.

(3) When determining an application, the court shall have regard to the maters specified in subsection 204(1)."

47. The latter mentioned subsection requires the court, in determining "an application" (ie. any application under Part 10) to have regard to:

"(a) the need to ensure that the aggrieved person is protected from violence, threats or harassment;

(b) the welfare of a child affected, or likely to be affected, by the respondent's conduct;

(c) the need to ensure that property is protected from damage

(d) any other matter that the court considers relevant."

48. Those matters had been egregiously ignored in the purported making of the original IRO.

49. The order issued on 4 March 1998 could not have been validly made by a Deputy Registrar, whether or not a Magistrate had signed the original order (see R v Andrew Nicholas Sarri [2000] ACTSC 109 (22 October 1999), per Crispin J). Only a Magistrate can make an IRO.

50. Mr Fisk deposed that it had been intended that the Magistrate would actually make the IRO in the terms to be deduced from the note on the Bench Sheet. He had assumed, of course, that there was then an existing IRO in force and that the period of it was merely being extended.

51. Even so, the form of the order as issued did not reflect that assumption. The defect in the form of the order was substantive. It would mislead a person served with it who might, if they knew the provisions of the MCA, conclude that a Deputy Registrar had purported to make an order without the statutory authority so to do. Insofar as it did not reflect the true status of the order made, it was not "a copy of the order" for the purposes of s 206L MCA. Why the form of order prescribed by Schedule 1 was not used is impossible to understand.

52. Further, though it was intended to be an extension of the period of an existing (albeit amended) order, it purported to be a fresh order. The form of it, on its face, also contravened s 206H MCA (Duration of orders). Subsection 206H(3) MCA provides:

"An interim restraining order remains in force for the period (not exceeding 10 days) specified by the court in the order."

53. On its face, the order of 4 March 1998 was expressed to expire at 4.00pm on 28 July 1998, a period of fifty-five days after it was expressed to have been made.

54. There is power to "extend the period" of an IRO. Subsection 206H(4) MCA provides:

" Where -

(a) the court adjourns the hearing of an application; and

(b) an interim restraining order is in force;

the court may, with or without hearing further evidence, extend the period for which the order remains in force until the date fixed for the further hearing of the application."

55. In this case, it appears from Mr Fisk's evidence that it was he, not the Magistrate, who adjourned the hearing of the application for substantive relief (the notation on the Bench Sheet was ambiguous in this respect).

56. It is clearly intended that an IRO or RO application should be dealt with under s 22 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) (MC(CJ)A), subject to stated exceptions, rather than under the procedural provisions of the MCA. Section 22 MC(CJ)A does not deal expressly with adjournments. The procedural provisions of the MC(CJ)A are applicable to s 22 applications, unless expressly excluded (some are).

57. Section 191 MC(CJ)A provides:

"The court may, at any time, adjourn the hearing or the further hearing of proceedings in such manner and on such terms as the court thinks just."

58. That provision does not confer a power to adjourn proceedings already fixed for hearing, as was here the case, upon a (Deputy) Registrar.

59. There is, however, an express but limited power conferred on a (Deputy) Registrar to "postpone" a hearing under s 193 MC (CJ) Act. It is in the following terms:

"Where, on the date and at the time and place fixed for the hearing or further hearing of proceedings, a magistrate is not available to exercise the jurisdiction of the court, the Registrar may, and shall at the request of a party to the proceedings made after a period of 1 hour has elapsed since that time without a magistrate becoming so available, postpone the hearing or further hearing to a date, time and place fixed by him or her."

60. That section did not empower Mr Fisk to adjourn the hearing of the substantive application in this case. Magistrates were available.

61. The power to adjourn a hearing is to be exercised judicially. That is plain from the terms of s 191 MC (CJ) Act. It is entirely inappropriate for a court official to exercise such a power. There is an additional reason applicable to applications of this kind. The discretion to extend the period of an IRO is not lightly to be exercised. The necessity for the extension must be or become apparent. In some cases, whilst some further order might be required, terms of an order previously made may have ceased to be appropriate. A fresh or amended order may be required. Indeed, it may appear that there is no longer a need for any IRO.

62. Whilst a Registrar (or a Deputy) is empowered to fix an initial date for the hearing of an application for an RO - see s 199 MCA - that power is limited to the fixing of a date that is:

"not more than 2 days after the date on which the application is filed."

63. On 3 November 1997, the date fixed by the relevant (Deputy) Registrar for the hearing of the original application was 13 November 1997. That of itself breached the terms of s 199 MCA. Of course, there being an application also for an IRO, the applications could both have been made returnable immediately before Magistrate Ward, who could, having decided to grant an IRO, adjourn to a later time, date and place, the hearing of the RO application. It would then have been necessary first to make the IRO and then to adjourn the hearing of the application for the RO in order to enliven the power to extend the IRO to the date thus set for hearing (subject to the ten day limit for the initial IRO) - (s 206H(4) MCA). The adjourned hearing date could not have been set for a date more than ten days after the original return date (not less than two days after filing).

64. His Worship did fix a date, time and place "for the matter to come back again". It is possible to construe that direction as an adjournment of the RO application for hearing to that date and time even if the application had not been expressed to have been returnable immediately.

65. Nevertheless, there were a number of other procedural irregularities. The first is that the IRO was on 13 November 1997 varied, apparently at Mr Fisk's suggestion, without any application from any party to the proceedings. Of course, the order was absurdly wide in its terms and a variation of it was eminently sensible. However, there should have been an application for variation and it should have been heard by a Magistrate.

66. The second is that, if the period for which the IRO was in force was to be extended, it was necessary for a Magistrate, before deciding to do so, to exercise a judicial discretion to determine, whether to hear evidence or not and to then decide how, if at all, the order should be varied if either party so applied. It is not clear that any variation order at all can be made if the respondent has not yet been served with the original application. Section 206C MCA expressly permits the making of an IRO without the respondent to the application for it being served. Section 206H MCA does not require service of the application for an RO before a hearing is adjourned and the period of an IRO extended. Section 206J MCA, however, does require service of a variation application before that application may be heard, though it may be granted (or refused) notwithstanding that the other party does not appear on the date set for that application to be heard.

67. The most fundamental irregularity was that the form of the order which issued recited that it was made in consequence of a hearing before a Deputy Registrar and "signed by Magistrate Dingwall, in chambers in the absence of the parties".

68. That, as Crispin J pointed out in R v Sarri (supra), renders the order invalid on its face. As I have noted, service of an order in that form would fail to bind a respondent to obey its terms even if the order in fact had been made by a magistrate. It is not "the order" made for the purposes of s 206L MCA, even if an order had, in fact, been made and was , otherwise, "in force".

69. Further, it purported to be made after "oral evidence on oath was given before the Court by the Applicant in support of the Application". No such evidence was given on 13 November 1997.

70. The order further recited that "The Court finds it necessary to ensure the safety of the Applicant and the children...". No such finding was made on 13 November 1997.

71. To further compound the matter, insofar as the order was (i) varied and (ii) extended in duration, the IRO as issued on 13 November 1997 recited neither of those matters. That is despite the availability of a prescribed form for an amended order.

72. In substance, furthermore, the order was one that, on no view of it, was warranted. The return of service, as noted by Mr Fisk and reported to Magistrate Dingwall, indicated that the appellant was a prisoner at Cooma Gaol until 26 February 1998. Clearly, there was no conceivable necessity for an IRO in any form until then. It is true that the appellant would be at no risk of breaching such an order until after his release, however, it is a serious matter even to be the subject of an application for such an order, let alone the respondent to an order made, implying, as it did, an adverse (albeit preliminary) finding concerning the conduct of a respondent to such an application.

73. It follows that the order issued on 13 November 1997 was wholly invalid.

74. It was, of course, open to Mr Adamopoulos to have renewed his application for an IRO and to have continued with such an application, whether or not a previous IRO was or had been in force.

75. The application dated 3 November 1997 and a notice of hearing for 4 March 1998 were each served on the appellant at Cooma Gaol on 20 November 1997. It appears that it was the original IRO, not the order purportedly made on 13 November 1997, which was so served (if the Magistrates Court file is complete). The latter order was never served.

76. That action provoked an application on behalf of the appellant to vary the IRO so as to permit him at least to enter and leave his own home after his release from gaol without automatically breaching it.

77. There is a note on the Bench Sheet dated 27 February 1998 purporting to adjourn the appellant's application to vary the IRO until 4 March 1998 and 9.30am "for conference". As at that date the order had, purportedly, already been so varied (though that varied order had not been served). Both parties were present on that date (though not necessarily together).

78. Both applications came before the Court on 4 March 1998. On that day Mr Fisk first conferred with each party separately.

79. As a result, he noted on the Bench Sheet:

"1. App. Adj to Hearing at 10.30am on 28/7/98. IRO to continue to 4.00pm on 28/7/98 as per IRO except as varied by consent ie. B/C Para 3 varied to add "and except when the Resp is approaching resident on and leaving 25 Grainger Crt Melba ACT when the distance prohibited shall be 5 meters.

1. App to provide further and better particulars within 14 days to Court."

80. There follows the signature of the applicant, the date (4/3/98) and the signature of Magistrate Dingwall.

81. That order, as issued, suffered from all the vices of the previous orders save that its terms were, at least, (probably) capable of observance by the appellant. There is no record of its service on the appellant. The appellant was not present when it was made by Magistrate Dingwall. However, as there has been no allegation of any breach of it, there is no additional difficulty flowing from the invalidity of that order.

82. On 28 July 1998, Mr Fisk recorded on the Bench Sheet the attendance of solicitors for the parties. The note continued:

"B/C Application Adj to Hearing at 10.30am on 9/2/99. IRO to continue to 4.00pm on 9/2/99. Resp to collect Order at Court Counter by c.o.b. 4/8/98.

B/C App to provide further and better particulars to Resp solicitor by 1/12/98."

83. That note was signed by Magistrate Somes in chambers in the absence of the parties.

84. The form of order, as issued by the Registry, was in the same invalid form as all previous orders. It was as totally ineffectual as all previous IROs. The appellant was not alleged to have been present when it was made nor was he served with a copy of it, though he was, of course, aware that such an order was to be issued. There is no record indicating whether the appellant collected the order or not.

85. That is the order which the appellant was accused of breaching on 1 November 1998.

86. It follows that the charge alleging breach of that order is legally unsustainable. The conviction and penalty must be set aside.

Postscript

87. It is unnecessary to go further but I note that, on 9 February 1999, the matter was fixed for hearing for 14 May 1999, apparently before Magistrate Fryar. On that date the matter was further adjourned to 6 August 1999.

88. On each of those occasions the period for which the IRO was in force was purportedly extended. In each case, the IRO as issued was invalid in form.

89. Astonishingly, the final (ie. twelve month) order, made on 6 August 1999, presumably after a hearing before a magistrate, was expressed in terms of it having been made:

"Before a Deputy Registrar on the 6^th day of August 1999 with the order being signed by Magistrate KRYAR (sic), in chambers in the absence of the parties."

90. There is no challenge, in these proceedings, to the proposition that her Worship might, on 6 August 1999, have been justified in making a restraining order. It is, however, important that court orders, breach of the terms of which may be an indictable offence, be correctly framed and served.

91. It does no service to persons in need of protection to give them a false sense of security by the issue of orders that are either invalidly made or issued in an invalid form.

92. The issue of restraining orders is supposed to be quick and to be limited to twelve months of restraint (or less) unless fresh cause is shown. In this case, the application for a restraining order took nearly two years (twenty-one months) to be heard and determined. Thus (at least purportedly) the appellant, pursuant to the one application, was apparently subject to restraining orders (both interim and final) for nearly three years. That period has been cut short only because of this appeal. It is clearly undesirable that such applications be left pending for as long as was the case here.

93. It is also undesirable that orders be made without adequate factual support and, then, in wider terms than necessary. Such a practice gives the impression that these orders are regarded as a means for resolving neighbourhood disputes rather than a serious restriction on the liberty of a person subject to them. They expose a person to serious criminal sanctions for conduct which might not otherwise be an offence or, at least, only subject to less severe penalties. They are an important procedure for preventing violence both to persons and property as well as restraining stalking and other forms of harassment. The procedure should not be activated without serious cause or dealt with in a procedurally perfunctory manner.

94. The history of this matter, regrettably, reflects little credit on the administration of the Magistrates Court.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 4 May 2000

Counsel for the Appellant: Mr R Thomas

Solicitor for the Appellant: Romano & Co.

Counsel for the Respondent: Mr S Whybrow

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 3 February 2000

Date of judgment: 4 May 2000