Koltounov v Van Niekerk
[2025] VCC 1030
•1 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
Case No. AP-25-0006
| IGOR KOLTOUNOV | Appellant |
| v | |
| JOSIAH VAN NIEKERK | Respondent |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2025 | |
DATE OF JUDGMENT: | 1 August 2025 | |
CASE MAY BE CITED AS: | Koltounov v Van Niekerk | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1030 | |
RULING
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Subject:INTERVENTION ORDER
Catchwords: Appeal against personal safety intervention order – legal, factual or discretionary error – where appellant is self-represented litigant – final intervention order made in appellant’s absence
Legislation Cited: Personal Safety Intervention Order Act 2010 (Vic)
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Doughty-Cowell v Kyriazis [2018] VSCA 216; Tomasevic v Trazaglini (2007) 17 VR 100; Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WAFC 153; Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Hunt v Cupples [2023] VCC 2370; House v The King (1936) 55 CLR 499; Roberts v Harkness (2018) 57 VR 334; Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94; Souben v Marson(Ruling) [2024] VCC 1638
Judgment: Appeal dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared via Zoom | |
| For the Respondent | Ms S Owen | Salvation Army |
HER HONOUR:
Introduction
1This is an appeal brought by the appellant, Mr Koltounov, from a decision of her Honour Magistrate Swadesir at the Magistrates’ Court at Colac granting, a final Personal Safety Intervention Order (“PSIO”) for the protection of the respondent, Mr Van Niekerk, on 16 December 2024 for a period of one year.
2In making the final PSIO, the Magistrate relied on the documents in the Court file, which included an interim PSIO granted on 14 October 2024 that was served on 15 October 2024.[1] She also relied on the evidence of the respondent regarding the breaches of the interim PSIO by way of contact and email.[2]
[1]Transcript of the proceedings at the Magistrates’ Court at Colac dated 16 December 2024 (“T”) 1, Lines (“L”) 11-14
[2]T1, L19-33; T3, L10-13
3On 6 January 2024, the appellant filed an appeal against the decision pursuant to s96 of the Personal Safety Intervention Orders Act 2010 (“the Act”) on the basis that he was not advised of the mention date at which the final PSIO was made. He therefore submitted that he was not provided with an opportunity to make submissions and be heard before the Order was made.
4On 17 June 2025, the final directions hearing of the appeal was heard before me. As the issue to be determined was confined, I determined that I could proceed to make my decision on the basis of the written and oral submissions that had been made by the parties, and receipt of documents from the Magistrates’ Court that Magistrate Swadesir relied on before making her decision.
5Pursuant to s96 of the Act, the appeal is to be conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.[3]
[3]The Act s96(2)(a)-(c)
6At this hearing, I also took the opportunity to explain that the principles of AAA v County Court Victoria & Others[4] required the appellant to demonstrate that the Magistrate made a factual, legal or discretionary error to enliven the appellate jurisdiction of this Court.
[4][2023] VSC 13 (AAA)
7For the reasons set out below, I find he has not done so and therefore dismiss this appeal.
8For consistency in this Ruling, I will use the parties’ titles as they were in the appeal proceeding before me.
Background
Interim PSIO
9The respondent applied for a final PSIO on 11 October 2024. An interim Order was made against the appellant on 14 October 2024. The interim Order was to last until final Order unless varied or revoked, or if the application was withdrawn.
10In his Application and Summons for a PSIO, the respondent to the appeal (the applicant in the Magistrates’ Court proceedings) stated:
“I KNOW THE RESP AS HE IS ATENDS MY WORKPLACE. I HAVE KNOWN HIM FOR APPROX. 3 YEARS. ON THE 16/9/24 THE RESP WAS ASKED TO LEAVE THE COMMUNITY CENTRE AGAIN AS HE HAD COME STRAIGHT TO THE RECEPTION AT WHlCH POINT I THEN ASKED THE RESP TO LEAVE THE PREMISES, THE RESP STARTED TO BERATE AND YELL AT ME IN RUSSIAN. THE POLICE WERE CONTACTED TO ATTEND TO REMOVE THE RESP FROM THE PREMISE AS THE RESP WAS BOTH BANNED FROM THE PREMISES AND ACTING AGGRESSIVELY ON THE PREMISES.
ONE OF THE STAFF BEGAN TRANSLATING WHAT THE RESP WAS YELLING AT ME VIA A TRANSLATOR ON HER MOBILE PHONE, AND WHAT WAS CAPTURED CONTAINED 'I'M TALKING TO YOU, I'LL KILL YOU AND THE PLAINTIFF, THE PLAINTIFF, YOU UNDERSTAND, YOU WANT IT’.
I RECOGNISED TWO LOCAL DETECTIVES WALKING PAST THE COMMUNITY CENTRE, I ASKED THE STAFF MEMBER TO BRING THEM INTO THE COMMUNITY CENTRE, THE TWO DETECTIVES BEGAN TO TALK WITH THE RESP, AND THE RESP RETURNING CONVERSATION THROUGH TRANSLATOR. IN THIS TIME THE RESP WAS ESCORTED OUT OF THE COMMUNITY CENTRE. ON THE 25TH OF SEPTEMBER 2024, THE RESP WAS ISSUED A NEW BANNING NOTICE AFTER THE INCIDENT ON THE 16TH OF SEPTEMBER TO COVER ALL PREMISES OF THE SALVATION ARMY IN THE COLAC REGION. THIS BANNING NOTICE WAS SERVED IN BOTH ENGLISH AND RUSSIAN AS REQUESTED, AND THE RESP RESPONDED 40 MINUTES AFTER THE EMAIL CONTAINING THE BANNING NOTICE WAS SENT BUT AT 3: 15PM ON THE SAME DAY THE RESP ENTERED THE SALVATION ARMY THRIFT SHOP IN COTAC (sic) WHICH I WAS WORKING AT AFTER HAVING RECEIVED AND RESPONDED TO THE BANNING NOTICE. THE POLICE WERE CONTACTED AND THEY ESCORTED THE RESP OFF THE PREMISES.
PREVIOUSLY THE RESP HAD BEEN ENTERING THE SALVATION ARMY COMMUNITY CENTRE WHILST AN ACKNOWLEDGED BANNING NOTICE STILL WAS VALID, THE RESP HAD ENTERED THE SITE 3 WEEKS CONSECUTIVELY LEADING UP TO THE AGGRESSIVE INCIDENT ON THE 16TH OF SEPTEMBER…
THE RESPS AGGRESSIVE BEHAVIOUR TOWARD OUR TEAM RESULTED IN LT PAUL TROTTER INTERVENING AND ASKING FOR THE RESP TO LEAVE THE COMMUNITY CENTRE. WHILE THE RESP WAS LEA YING THE COMMUNITY CENTRE, THE RESP WAS SWEARING AT LT PAUL TROTTER AND CALLED LT PAUL TROTTER A DEROGATORY OR INSULTING TERM, THIS BEHAVIOUR IS NOT TOLERATED WHEN DIRECTED AT ANY OF OUR TEAM OR ANY COMMUNITY MEMBERS.”[5]
[5]Application and Summons for an Intervention Order dated 11 October 2024
11The notations on that Order were as follows:
(a) the respondent (the appellant in this proceeding) was not served with a copy of the application and summons;
(b) the respondent (the appellant in this proceeding) was not present at the hearing; and
(c) the respondent (the appellant in this proceeding) did not agree to the Order being made.
12A Certificate of Service dated 15 October 2024 provided by the Magistrates’ Court confirms that the Application and Summons for the final PSIO, the interim PSIO made on 14 October 2024, the notice of the matter being listed for mention on 11 November 2024, and an explanation of the interim PSIO was served on the appellant on 15 October 2024. The Certificate of Service records that a member of Victoria Police effected service by delivering the documents to the appellant personally at his home address, but that they were “left at door after closing door in face”.[6]
[6]Certificate of Service on Igor Koltounov dated 15 October 2024
13The appellant disputes that he was served. I will refer to this further in the appellant’s submissions.
14The appellant did not attend the mention on 11 November 2024. The matter was relisted for a further mention on 16 December 2024.
Final PSIO
15At the mention before her Honour Magistrate Swadesir on 16 December 2024, the applicant (the respondent in this proceeding) represented himself. The respondent (the appellant in this proceeding) did not appear.
16Magistrate Swadesir was satisfied that service had been effected on the appellant of the interim PSIO.[7]
[7]T2, L12-14
17The transcript shows that her Honour reviewed the material on the Court file and considered the submissions of the applicant (the respondent in this proceeding) regarding the basis of his application.
18Having satisfied herself that service had been effected on the appellant, and noting that he was not present, her Honour considered that she could make a final Order pursuant to s61 of the Act.
19She proceeded to make a final PSIO pursuant to s44(2)(b) of the Act for a period of one year, expiring at midnight on 16 December 2025.
20This was served on the appellant on 23 December 2024. Service was effected by the PSIO being delivered to the appellant personally at Colac Police Station.
Grounds of Appeal
Appellant’s submissions
21On 6 January 2024, the appellant filed his Notice of Appeal with the Magistrates’ Court. In that document, he wrote his grounds of appeal as follows:
“Improper conduct of the trial, there was no invitation to the trial. Legal, factual or discretionary error. Using Russian/English translator.”[8]
[8]Appellant’s Notice of Appeal dated 6 January 2024, which I have inferred was intended to be dated 6 January 2025.
22In accordance with timetabling orders made by his Honour Judicial Registrar Lynch of this Court on 6 March 2025, the appellant filed his statement of grounds of appeal and his submissions in support on 28 March 2025.
23At the final directions hearing before me on 17 June 2025, the appellant was assisted by a Russian interpreter. Conscious of the Court’s obligation to ensure that a self-represented litigant is provided with a reasonable opportunity to present their case,[9] I sought clarification of the appellant’s grounds of appeal and his submissions in support.
[9]Doughty-Cowell v Kyriazis [2018] VSCA 216 at paragraph [63]; Tomasevic v Trazaglini (2007) 17 VR 100 at paragraph [136]
24Following that discussion, I have characterised his grounds of appeal as follows:
(a) Ground 1 – that the Magistrate failed to accord procedural fairness by failing to advise him of the date of the mention on 16 December 2024 (legal error).
(b) Ground 2 – that the Magistrate failed to accord procedural fairness and exercised her discretion inappropriately by proceeding to make a final PSIO in the appellant’s absence pursuant to section 44(2)(b) of the Act (legal and discretionary error).
25At the hearing before me, the appellant also submitted the following:
(a) he was not served with a Notice of Hearing informing him that the matter was listed for mention on 16 December 2024;
(b) due to his disability, he had difficulty remembering when events occurred;
(c) about six months prior to the directions hearing, the police attended his home and spoke to him through the security door and attempted to deliver papers. He said he did not know where those papers were now. He asked the police for an interpreter. His request was declined; and
(d) at a later date, he went to the police station and asked them to provide him with the papers again. He again requested that an interpreter be provided to explain the documents. He was told that he would need to discuss the contents of the papers with his lawyer. He took the papers home and used Google Translate to translate the paperwork.
Respondent’s submissions
26The respondent filed and served written submissions in accordance with the Orders of this Court made on 6 March 2025.
27He submitted that:[10]
(a) the appellant had failed to demonstrate a legal, factual or discretionary error in his statement of grounds of appeal and his submissions in support filed on 28 March 2025.
(b) the appellant indicated in the Notice of Appeal that the basis for the appeal was “there was no invitation to attend the trial”,[11] however, this was not referenced again in his submissions, which instead covered issues relating to his personal circumstances and views on the respondent’s employer. Notwithstanding this, the respondent submitted as follows:
(i)pursuant to s44 of the Act, a Magistrate may make a final Order at a mention date if they are satisfied that the respondent (to a PSIO) has been served with a copy of the application for a PSIO, and has not attended Court on the mention date. It was undisputed that the appellant did not attend the Colac Magistrates’ Court on the mention date of 16 December 2024. As a result of the appellant’s non-attendance, her Honour made a final PSIO for the protection of the respondent. Before she did so, her Honour stated that “[the appellant] has been served, but he’s not present today”.[12] Her Honour’s comment is evidence that there was a Certificate of Service on the Court file at the time of making the Order and that she was satisfied that the application had been served for the purpose of s44 of the Act.[13]
[10]Written submissions on behalf of the respondent dated 29 April 2025 (“Respondent’s written submissions”)
[11]Appellant’s Notice of Appeal dated 6 January 2025; Respondent’s written submissions 2, at paragraph [5]
[12]T5, L2
[13]Respondent’s written submissions 4 at paragraph [16]
(c) there was no evidence before the Court to support that her Honour Magistrate Swadesir made a legal, factual or discretionary error in the decision to impose a final Order and consequently, this Court’s jurisdiction to hear the appeal has not been enlivened. Therefore, the Orders of the Magistrate must be confirmed and the appeal dismissed.
Relevant legal principles
Legal error
28A legal error may result from the way in which a Court:
“… undertakes its fact finding, or … in the way in which it construes the statute which it is applying in a particular case, or in some other aspect of its reasoning.”[14]
[14]Byrne v Owners of Ceresa River Apartments Strata Plan 55597 [2016] WAFC 153 at paragraph [23]
29Failure to afford a party procedural fairness will involve legal error if that failure could have materially affected the decision of the Court.[15]
[15]Hunt v Cupples [2023] VCC 2370 at paragraph [39]
30As explained by Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs:[16]
“There will generally be a realistic possibility that a decision making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration … a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive ‘story’ of the opposing party. Where a tribunal errs by denying a party a reasonable opportunity to present their case … [the Court] does not require demonstration of how that party might have taken advantage of that lost opportunity … to the contrary … [the Court] proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”[17]
[16](2022) 276 CLR 80
[17]Ibid, at paragraph [33]
Discretionary error
31Where the evidence identifies an error made by the trial judge in the exercise of their discretion, the appellate Court may then exercise its own discretion on that point.
32The relevant legal principle application for discretionary error is found in the High Court case of House v The King.[18] In that case, the majority of the Court stated:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate Court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground the substantial wrong has in fact occurred.”[19]
[18](1936) 55 CLR 499
[19]Ibid at 504-505
Unrepresented litigants and the right to a fair hearing
33Procedural fairness, and the correlative right to a fair hearing,[20] requires that all parties are given a reasonable opportunity to:
(a) present their case and advance submissions in support; and
(b) know the case to be advanced by the opposing party and make submissions in opposition to that case. [21]
[20]Roberts v Harkness (2018) 57 VR 334 at paragraph [46]
[21]Doughty-Cowell v Kyriazis (supra) at paragraph [63], cited in Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94 at paragraph [67]; see also Roberts v Harkness (supra) at paragraphs [46]-[57] and Souben v Marson(Ruling) [2024] VCC 1638 at paragraphs [55]-[56]
34In determining whether a party was afforded procedural fairness, the question to be asked is “whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case”.[22]
[22]Doughty-Cowell v Kyriazis (supra) at paragraph [63]
35For this purpose, what is considered “reasonable” will depend on the circumstances of the case.[23] Matters to be taken into account in determining what fairness requires in a case include:
(a) the nature of the decision to be made;
(b) the nature and complexity of the issues in dispute;
(c) the nature and complexity of the submissions each party wishes to advance;
(d) the significance to the party of the decision; and
(e) the competing demands on the time and resources of the court or tribunal.[24]
[23]Roberts v Harkness (supra) at paragraph [49]
[24]Ibid; Doughty-Cowell v Kyriazis (supra) at paragraph [63]
36The key difference where a party is unrepresented is that the Court must first assess the capability of the unrepresented person to formulate and communicate the case they wish to present.[25] Where a party is unrepresented, the question to be asked is “what is (or was) required to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case?”[26]
[25]Roberts v Harkness (supra) at paragraph [54]
[26]Roberts v Harkness (supra) at paragraph [53]
37In Tomasevic v Travaglini,[27] Bell J summarised a judge’s obligation to provide a fair hearing to unrepresented litigants as follows:
“Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.
The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. … .”[28]
[27][2007] 17 VR 100
[28]Ibid at paragraphs [140]-[141]
Relevant provisions
38The provisions of the Act relevant to the appeal are set out below.
39Section 1 states:
“Purposes
The main purposes of this Act are—
(a)to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and
(b)to promote and assist in the resolution of disputes through mediation where appropriate.”
40Section 44 provides:
“Mention date
(1)The court must not proceed to hear a contested application for a final order on a mention date unless the court is satisfied that—
(a)all the parties to the proceeding have had an opportunity to seek legal advice and legal representation; and
(b)all the parties to the proceeding consent to the hearing of the contested application on the mention date; and
(c)it is fair and just to all the parties to hear the application on the mention date.
(2)Subsection (1) does not prevent the court making a final order on a mention date if—
(a)all the parties to the proceeding have consented to, or are not opposed to the making of, the order in accordance with section 64; or
(b)the court is satisfied the respondent has been served with a copy of the application for a personal safety intervention order and has not attended court on the mention date.”
41Finally, s61 states:
“Power of court to make final order
(1)The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(c)The respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(d)the respondent and the affected person are not family members; and
(e)it is appropriate in all the circumstances of the case to make a final order.
...
(4)Despite subsection (1), the court must not make a final order if satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour or stalking without malice—
(a)in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or
(b)for the purpose of an industrial dispute; or
(c)for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.”
Analysis
Ground 1 – did the Magistrate fail to accord procedural fairness by failing to advise the appellant of the date of the mention on 16 December 2024? (legal error).
42As outlined above, the appellant submitted that he was not served with a Notice of Hearing providing details of the mention listed on 16 December 2024.
43However, as noted earlier, on 15 October 2024 he was served with the Application and Summons for the final PSIO, the interim PSIO made on 14 October 2024 and the notice of hearing of 11 November 2024, as evidenced by the Certificate of Service.
44Having been served with these documents, it was the responsibility of the appellant to take steps to comprehend these documents and present to Court on the date of the hearing, that being the first mention date on 11 November 2024. The Court is required to deal with matters efficiently and expediently and thus, it is the responsibility of the parties to present to Court at the date and time set down by the Court.
45Had he done so, he would have been informed of any subsequent hearing dates in his matter, and have been able to make submissions to the Magistrate about the matter, including the merits of the respondent’s application.
46Having failed to do so, he forewent the opportunity to be informed of subsequent listings of the matter by the Magistrate.
47Had the Magistrate wished to do so, she could have proceeded to make final Orders pursuant to section 44(2)(b) of the Act on that date, given that she was satisfied that service of the application had been effected by reason of the Certificate of Service dated 15 October 2024.
48Thus, the appellant having failed to appear at the mention on 11 November 2024, had an opportunity to contact the Court to find out what happened and then could have presented to Court on 16 December 2024.
49He appears not to have taken that step, as he submitted that he was unaware of the mention date on 16 December 2024.
50The Magistrate’s duty to provide procedural fairness does not extend to providing either an interpreter in matters concerning the Act or a translation of Court documents. Rather, it is the responsibility of the parties to ensure they have understood the documents that have been served on them and present when required to by the Court.
51Thus, this ground of appeal has not been made out and is dismissed.
Ground 2: Did the Magistrate fail to accord procedural fairness or exercise her discretion inappropriately by proceeding to make a final PSIO in the appellant’s absence pursuant to section 44(2)(b) of the Act? (legal and discretionary error)
52I have addressed this ground of appeal with respect to legal error (that is, whether the Magistrate failed to accord procedural fairness) above. For the sake of completeness, I find that there was no legal error on the part of the Magistrate in proceeding to make an order pursuant to section 44(2)(b) of the Act by reason of the appellant’s failure to appear at the mention on 16 December 2024.
53I also find that the Magistrate did not exercise an inappropriate use of the discretion in proceeding to make a final PSIO pursuant to section 44(2(b) of the Act. The Magistrate had already adjourned this matter on one prior occasion. As outlined above, the Magistrate was entitled to make a final Order in the absence of the appellant once she was satisfied that service of the application had been effected. She was entitled to arrive at her decision regarding the making of the Order based on the submissions of the respondent, the party that was present at the mention.
54Consequently, I find that there was no legal or discretionary error on the part of the Magistrate and dismiss this ground of appeal.
Conclusion
55As the appellant has not made out either ground of appeal, I dismiss the appeal.
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