Rana v Gregurev

[2015] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal)

RANA v GREGUREV

[2015] SASCFC 58

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Kelly)

27 April 2015

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS

On 18 February 2014 the applicant brought an application in the Magistrate’s Court pursuant to s 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) for an interim order against Ms Gregurev. The Magistrate dismissed the Applicant’s application giving ex tempore reasons. The Applicant appealed to a single judge of this court, that appeal was dismissed on all grounds.

He now appeals to this court.

Held:

1.   It is not appropriate to grant permission to appeal for the purposes of undertaking a re-examination of the evidence provided to lower courts in the absence of any patent error

2.   The applicant was not denied procedural fairness.

WORDS AND PHRASES CONSIDERED/DEFINED

"Abuse", "Interim order"

RANA v GREGUREV
[2015] SASCFC 58

Full Court:  Kourakis CJ, Vanstone and Kelly JJ

1. THE COURT:       This is an application for permission to appeal the decision of a Judge of this Court dismissing an appeal against a decision of the Magistrates Court refusing to make an intervention order.

2. On 18 February 2014, Mr Rana brought an application in the Magistrate’s Court pursuant to s 20 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act) for an interim intervention order against the respondent, Ms Gregurev. On 3 June 2014 Mr Rana’s application was dismissed by the Magistrate who gave ex tempore reasons.

3. Mr Rana first brought proceedings in this Court seeking a judicial review of the Magistrate’s decision but these proceedings were dismissed on Mr Rana bringing an appeal pursuant to s 42 of the Magistrate’s Court Act 1991 (SA).  The appeal before the Judge proceeded on five grounds. 

4. Ground 1 complained of a denial of procedural fairness particularly in relation to the Magistrate’s consideration of previous applications for restraining orders brought by Mr Rana.  After a review of the course of the proceedings, the Judge concluded that Mr Rana was given sufficient opportunity to address that issue and all other relevant matters.  He dismissed the appeal on that ground.

5. Ground 2 complained that the Magistrate failed to properly apply ss 8 and 10 of the Act.  Section 8 is a definition section which defines the terms abuse, active abuse, emotional or psychological harm and unreasonable and non-consensual denial of financial, social or personal autonomy.  Section 10 of the Act sets out certain general principles at a high level of abstraction which must guide the Court in considering applications for intervention orders.

6. Mr Rana’s complaint before the Judge on this ground focused on a report from a psychiatrist Dr Giardini which confirmed that Mr Rana was receiving psychiatric treatment for paranoid schizophrenia and depression.  The Judge concluded that the Magistrate’s finding that there was no reason to suspect that Ms Gregurev would, if not restrained, commit further acts of abuse against Mr Rana was supported by the evidence. 

7. Ground 3 complained that the Magistrate erred in failing to make the restraining order given the contents of a blog posted on the internet by the respondent.  The Judge held that the Magistrate correctly appreciated that what was required was not just that Miss Gregurev had committed in the past an act of abuse but rather that it was reasonable to suspect that she would, if not restrained, commit further acts of abuse.

8. Ground 4 complained of a failure of the Magistrate to apply ss 6, 10 or 28 of the Act.  The Judge was satisfied that the Magistrate having explicitly adverted to ss 6 and 10 of the Act, and undoubtedly being aware of s 28 of the Act, properly applied those sections.

9. By ground 5 Mr Rana complained that the Magistrate had “underperformed her duties” and that her decision “was based on conjecture and speculation”.  The Judge found that none of those complaints was established.

10. Mr Rana’s proposed grounds of appeal against the decision of the Judge are lengthy and difficult to understand.  Insofar as those grounds are comprehensible Mr Rana appears to re-agitate the questions which were raised before the Judge.  They involve an evaluation of the evidence.

11. Mr Rana failed to persuade the Magistrate that there was reason to suspect that Miss Gregurev would commit acts of abuse in the future if not restrained.  The Magistrate carefully considered the material put before her.  The Judge conducted a further evaluation of the evidence and was satisfied that the Magistrate’s conclusion was supported by the evidence.  It is not appropriate to give permission to appeal for the purposes of undertaking yet a further evaluation of that evidence in the absence of any patent error.  Moreover the Judge’s conclusion that Mr Rana was not denied procedural fairness is plainly right.

12. Finally, it may be noted that no judicial order has been made against Mr Rana.   Rather, he has simply failed to secure the making of a restraining order against Ms Gregurev.