South Australian Numbered Acts

STATUTES AMENDMENT (COURTS) ACT 2004 (NO 23 OF 2004) - SECT 26

26—Insertion of section 99CA

After section 99C insert:

99CA—Special provisions relating to non-police complaints for section 99 restraining orders

        (1)         This section applies to a complaint under this Division where—

            (a)         the complainant is not a member of the police force; and

            (b)         the complaint is not made by telephone by a person introduced by a member of the police force; and

            (c)         the restraining order sought is a restraining order under section 99.

        (2)         On a complaint to which this section applies, the following provisions apply despite any other provisions of this Act:

            (a)         the Court must not issue a summons for the appearance of the defendant and must dismiss the complaint unless it is supported by oral evidence;

            (b)         in addition to the discretion whether to make an order under section 99C(2), the Court has, subject to this subsection, a discretion to refuse to issue a summons for the appearance of the defendant and to dismiss the complaint;

            (c)         in determining whether to exercise the discretion under paragraph (b) to dismiss the complaint, the Court must take into account—

                  (i)         whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and

                  (ii)         whether the complaint is in the nature of a cross application; and

                  (iii)         any other matters that the Court considers relevant;

            (d)         without limiting the circumstances in which the Court may exercise the discretion, the Court may exercise the discretion under paragraph (b) to dismiss the complaint if satisfied that the complaint is frivolous, vexatious, without substance or has no reasonable prospect of success;

            (e)         there is a presumption against exercising the discretion under paragraph (b) to dismiss the complaint if the complaint discloses allegations of—

                  (i)         an offence involving personal violence; or

                  (ii)         an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935 ;

            (f)         if the Court exercises the discretion under paragraph (b) to dismiss the complaint, it must record the reasons for doing so in writing.