Rana v Gregurev - [2015] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANA v GREGUREV
[2015] SASC 37
Judgment of The Honourable Justice Peek
11 March 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against dismissal of application for interim intervention order.
The appellant, Mr Rana, made an application for an interim intervention order to be made against the respondent, Ms Gregurev, the appellant’s former girlfriend’s mother, pursuant to s 20, Intervention Orders (Prevention of Abuse) Act 2009 (the Act). The asserted basis of the application was that it was reasonable to suspect that Ms Gregurev would commit an act of abuse against Ms Rana by causing personal injury and criminal defamation on the internet. The Magistrate refused to grant the order sought.
The appellant and the respondent were unrepresented. The action originally commenced as an application for Supreme Court judicial review of the Magistrate's decision. It was agreed that this matter should proceed in the form of an appeal rather than a judicial review and Ms Gregurev was substituted as the proper respondent.
Ground 1 of appeal appears to complain that the appellant was given insufficient opportunity to present his application in the Magistrates Court. Ground 2 appears to assert that the Magistrate failed to apply ss 8 and 10 of the Act to the evidence before her. Ground 3 appears to assert that the Magistrate wrongly exercised her discretion to refuse the appellant’s application and ought to have found that there was evidence which gave rise to a reasonable suspicion that the respondent would commit an act of abuse. Ground 4 appears to assert that the Magistrate did not apply (or properly apply) ss 6, 10 or 28 of the Act. Ground 5 asserts that the Magistrate “under performed” her duties; that her decision “was based on conjecture and speculation; and that the decision “was made without caution”.
Held per Peek J (dismissing the appeal):
1.       The appellant was given sufficient opportunity to present his application. (at [28]).
2. The Magistrate properly applied the provisions of the Act including ss 8, 10 and 28. (at [30], [41]).
3. The Magistrate was correct in not finding that it was reasonable to suspect that the respondent would without intervention commit an act of abuse against the appellant. Further, it was open to the Magistrate to determine that it was not appropriate in all of the present circumstances to make the order sought under s 6(b). (at [38], [39]).
4.       The appellant failed to establish that the Magistrate underperformed her duties or that the Magistrate’s decision was based on conjecture and speculation or made without caution. (at [43]).
5.       The appeal is dismissed. (at [46]).
Intervention Orders (Prevention of Abuse) Act 2009 ss 3, 5, 6, 6(a), 6(b), 7, 8, 10(2), 10(4), 18, 20, 20(1)(a), 21(1), 21(3), 21(4), 21(5), 28; Magistrates Court Act 1991 s 42; Domestic Violence Act 1994 (SA), referred to.
House v The King (1936) 55 CLR 499, applied.
Cook v Galloway [2015] SASC 36; Rana v Police [2008] SASC 280; Rana v Police [2009] SASC 161; Rana v Gregurev; Rana v Gregurev [2011] SASCFC 157, discussed.
Police v Giles [2013] SASC 11; Rana v Google Australia Pty Ltd [2013] FCA 60, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"abuse"

RANA v GREGUREV
[2015] SASC 37
Magistrates Appeal

PEEK J. Appeal against dismissal of application for interim intervention order.
Background
On 18 February 2014, Mr Ranjit Rana (the appellant)[1] brought an application (the application) before a Magistrate pursuant to s 20, Intervention Orders (Prevention of Abuse) Act 2009 (the Act)[2] for an interim intervention order[3] (the order sought) to be made against Ms Darda Gregurev (the respondent).[4]
[1]    Referred to by the Magistrate as “the applicant”.
[2] No police officer had made an interim intervention order pursuant to s 18 of the Act or applied for an interim intervention order pursuant to s 20(1)(a) of the Act.
[3]    The terms of the order sought appear in the ex tempore reasons given by the Magistrate on 3 June 2014 when the Magistrate refused to make the order sought.
[4]    Referred to by the Magistrate as “the defendant”.
The appellant gave oral evidence before the Magistrate on 13 May 2014. He was also permitted to place before the Magistrates Court a very large amount of material which the Magistrate summarised as follows:[5]
[5] Paragraph [20] of the ex tempore reasons.
·Three affidavit books provided by him, two dated 19/9/13 and the third dated 17/3/14.
·Mr Rana then submitted further written material in addition, I note on 11/3/14 a letter was received by the registrar with some corrections of summary of argument which I have noted.
·The 1/4/14 which was a supplementary summary of argument was provided.
·There is a dot point presentation for 6/5/14.
·Copy of a letter to the Commissioner dated 20/5/14.
·Additional affidavit enclosing medical statements.
·An e-mail dated 14/5/14 which the applicant raises that his evidence was limited to less than 25 minutes in court.
·Further document highlights concerning documents and issues.
The basis of the application as asserted by the appellant was summarised by the Magistrate as follows:
[3]The written affidavit attached to the application of the applicant states that the defendant is the applicant’s former girlfriend’s mother and the basis for the application is that it is reasonable to suspect that the defendant will commit an act of abuse against the protected person by; causing personal injury and criminal defamation on the internet.
[4]The applicant Mr Rana in his affidavit provides the following background to the relationship namely, the defendant has been bullying, cyber stalking and contacting the applicant’s psychiatrist in person and via email since the end of 2007 and now. Further also defaming the applicant on the internet and twitter which is untruthful, false and defamatory.
[5]Mr Rana further sets out that the defendant has published abuses about the applicant since the end of 2007 and ongoing now which has been identified.
The terms of the order sought by the appellant included prohibiting Ms Gregurev from publishing material about Mr Rana on the internet, and requiring her to remove existing material already published there which he asserted was defamatory and constituted “abuse” in that it had caused him emotional and psychiatric harm.
In his evidence, the appellant made various claims which, together with the documents referred to above, were carefully considered by the Magistrate. After a number of hearings, the Magistrate refused to make the order sought, dismissed the application and gave detailed ex tempore reasons for doing so.
The appellant has at all times been unrepresented. He initially applied to the Supreme Court for judicial review of the Magistrate’s refusal to make the order sought, the proceedings then being in the form of an action by Mr Rana against the “State of South Australia (Magistrates Court of South Australia)”.[6] Those proceedings initially came before me in that form on 3 October 2014 with the State of South Australia being represented by Mr Wait, counsel from the Crown Solicitor’s Office. I then raised the question as to whether the proceedings should in fact be in the form of an appeal under s 42, Magistrates Court Act 1991. The matter was adjourned until 15 October 2014 for the then parties to consider their positions.
[6] See SCCIV-14-848.
On 15 October 2014, Mr Rana and Mr Wait again appeared before me. They agreed that the proceedings should be in the form of an appeal rather than judicial review. Accordingly, I made orders that the time within which to file a notice of appeal be extended and that Mr Rana be granted permission to appeal (in so far as may have been necessary). On the basis that such a notice of appeal were to be filed, I ordered that the appeal proceed and that the claim for judicial review be dismissed.
At a further hearing on 3 November 2014, Mr Rana, Ms Gregurev, and Mr Nicholas, of the Crown Solicitor’s Office (appearing for the State of South Australia), each appeared. Ms Gregurev confirmed that she was aware of the proceedings and formally accepted service as respondent to the appeal. Mr Nicholas applied for the title of the action to be altered by substituting Ms Gregurev as respondent in lieu of the “State of South Australia” or “The Magistrates Court of South Australia”; with Mr Rana and Ms Gregurev consenting, I made that order. Mr Nicholas indicated that he was prepared to assist the Court as amicus curiae. Mr Rana and Ms Gregurev both stated that they consented to Mr Nicholas appearing in that capacity and I therefore gave leave to Mr Nicholas to appear on the appeal as amicus curiae.
The hearing of the appeal on 7 November 2014
At the hearing of the appeal on 7 November 2014, Mr Rana indicated that he had received from Nr Nicholas an outline of the submissions he proposed to make. Mr Rana stated that he objected to Mr Nicholas making those submissions. In the light of that changed attitude by Mr Rana, I indicated that I would not receive such submissions from Mr Nicholas.
Ms Gregurev, the respondent, indicated that she did oppose the appeal but beyond that did not wish to put legal submissions. However, she did seek to tender an affidavit. I indicated that I would read the affidavit and later indicate to the parties whether I was prepared to admit the affidavit. I have decided not to admit it and therefore pay no attention to its contents.
I then heard full submissions from Mr Rana and I now proceed to consider those submissions by reference to each of the grounds of appeal having regard to the obligation of the Court to conduct a review of the whole of the evidence pursuant to s 42, Magistrates Court Act 1991.
The relevant legislation
The substance of Mr Rana’s appeal appears to concern the Magistrate’s approach to, and interpretation of, the provisions of the Act. The most important provisions for present purposes are ss 6, 7, 8, 21(1), 21(3), 21(4) and 21(5) which provide as follows:
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)     it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)     the issuing of the order is appropriate in the circumstances.
7—Persons for whose protection intervention order may be issued
(1)     An intervention order may be issued for the protection of—
(a)any person against whom it is suspected the defendant will commit an act of abuse; or
(b)any child who may hear or witness, or otherwise be exposed to the effects of, an act of abuse committed by the defendant against a person.
(2)     An intervention order may be issued for the protection of a person even if that person is not an applicant for the order and the application is not made on his or her behalf.
(3)     If an issuing authority proposes to intervene against a defendant for the protection of more than 1 person, it may do so by issuing a single intervention order or by issuing multiple intervention orders, as it considers appropriate in the circumstances.
8—Meaning of abuse—domestic and non‑domestic
(1)     Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
(2)     An act is an act of abuse against a person if it results in or is intended to result in—
(a)     physical injury; or
(b)     emotional or psychological harm; or
(c)an unreasonable and non‑consensual denial of financial, social or personal autonomy; or
(d)damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(3)     Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
(4)     Emotional or psychological harm—examples
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
(a)sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity;
(b)     unlawfully depriving the person of his or her liberty;
(c)driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle;
(d)     causing the death of, or injury to, an animal;
(e)     following the person;
(f)loitering outside the place of residence of the person or some other place frequented by the person;
(g)     entering or interfering with property in the possession of the person;
(h)giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person;
(i)publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person;
(j)communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;
(k)     keeping the person under surveillance;
(l)    directing racial or other derogatory taunts at the person;
(m)threatening to withhold the person's medication or prevent the person accessing necessary medical equipment or treatment;
(n)     threatening to institutionalise the person;
(o)     threatening to withdraw care on which the person is dependent;
(p)otherwise threatening to cause the person physical injury, emotional or psychological harm or an unreasonable and non‑consensual denial of financial, social or domestic autonomy or to cause damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(5)     Unreasonable and non‑consensual denial of financial, social or personal autonomy—examples
Without limiting subsection (2)(c), an act of abuse against a person resulting in an unreasonable and non‑consensual denial of financial, social or personal autonomy may be comprised of any of the following:
(a)denying the person the financial autonomy that the person would have had but for the act of abuse;
(b)withholding the financial support necessary for meeting the reasonable living expenses of the person (or any other person living with, or dependent on, the person) in circumstances in which the person is dependent on the financial support to meet those living expenses;
(c)without lawful excuse, preventing the person from having access to joint financial assets for the purposes of meeting normal household expenses;
(d)     preventing the person from seeking or keeping employment;
(e)     causing the person through coercion or deception to—
(i)    relinquish control over assets or income; or
(ii)    claim social security payments; or
(iii)sign a power of attorney enabling the person's finances to be managed by another person; or
(iv)     sign a contract for the purchase of goods or services; or
(v)     sign a contract for the provision of finance; or
(vi)     sign a contract of guarantee; or
(vii)sign any legal document for the establishment or operation of a business;
(f)without permission, removing or keeping property that is in the ownership or possession of the person or used or otherwise enjoyed by the person;
(g)disposing of property owned by the person, or owned jointly with the person, against the person's wishes and without lawful excuse;
(h)preventing the person from making or keeping connections with the person's family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices, or from expressing the person's cultural identity;
(i)exercising an unreasonable level of control and domination over the daily life of the person.
(6)     If a defendant commits an act of abuse against a person, or threatens to do so, in order to cause emotional or psychological harm to another person or to deny another person financial, social or personal autonomy, the defendant commits an act of abuse against that other person.
(7)     A defendant may commit an act of abuse by causing or allowing another person to commit the act or to take part in the commission of the act.
(8)     If the act of abuse is committed by a defendant against a person with whom the defendant is or was formerly in a relationship, it is referred to in this Act as an act of domestic abuse; and for that purpose, 2 persons are in a relationship if—
(a)     they are married to each other; or
(b)     they are domestic partners; or
(c)they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of 1 affects the other; or
(d)1 is the child, stepchild or grandchild, or is under the guardianship, of the other (regardless of age); or
(e)1 is a child, stepchild or grandchild, or is under the guardianship, of a person who is or was formerly in a relationship with the other under paragraph (a), (b) or (c) (regardless of age); or
(f)1 is a child and the other is a person who acts in loco parentis in relation to the child; or
(g)1 is a child who normally or regularly resides or stays with the other; or
(h)     they are brothers or sisters or brother and sister; or
(i)they are otherwise related to each other by or through blood, marriage, a domestic partnership or adoption; or
(j)they are related according to Aboriginal or Torres Strait Islander kinship rules or are both members of some other culturally recognised family group; or
(k)1 is the carer (within the meaning of the Carers Recognition Act 2005) of the other.
(9)     An act of abuse may be committed by a defendant against a person with whom the defendant is not, and was not formerly, in a relationship (including in circumstances where the defendant imagines such a relationship) and such an act of abuse is referred to in this Act as an act of non‑domestic abuse.
21—Preliminary hearing and issue of interim intervention order
(1)     On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear.
...
(3)     At the preliminary hearing, the Court may—
(a)issue an interim intervention order against a defendant if it appears to the Court that there are grounds for issuing the order; or
(b)dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court.
(4)     If the applicant alleges non‑domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account—
(a)whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and
(b)     whether the application is in the nature of a cross application; and
(c)     any other matters that the Court considers relevant.
(5) There is a presumption against exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935.
The purpose and structure of the relevant legislation

A primary purpose of the legislation is to protect people when it is reasonable to suspect that somebody (a defendant) will, without intervention, commit an act of abuse (whether against the applicant or some other person(s)).[7] The importance of such protection is reinforced by various provisions in the Act, including the very broad definition of “abuse” (s 8), the recitation of the objects of the Act and the broad principles to be applied (ss 5 and 10), and the enactment of a presumption against “exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under s 19AA of the Criminal Law Consolidation Act 1935.”[8]
[7] Section 6 of the Act.
[8] Section 21(5) of the Act.
However, because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
The grounds for issuing intervention orders
Section 6 of the Act deals with the grounds for issuing an “intervention order” which is defined[9] so as to include both an interim and final order. The structure of s 6 (including the use of the conjunctive “and”) makes it quite clear that both interim and final orders may only be issued when the Magistrate finds that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person (s 6(a)) and, the Magistrate also considers that it is appropriate to issue such an order (s 6(b)).
[9] Section 3 of the Act.
Interim intervention orders
Interim intervention orders may be divided into two classes: those issued by a police officer pursuant to s 18 and those issued by a court pursuant to s 21 (where an interim intervention order has not previously been issued by a police officer).
The present case involves the second of the two classes – an application by the appellant in circumstances where no interim intervention order had previously been issued by a police officer. In such cases the power to dismiss not only arises from the consequence of a failure of an applicant to satisfy the requirements of s 6 but also arises from the positive power of dismissal stated at s 21(3) thus:
(3) At the preliminary hearing, the Court may—
…
(b) dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court.
The effect of s 21(3) is that a Magistrate may dismiss an application of the present type in a summary way (and without necessarily taking oral evidence), when the material before the Magistrate sufficiently indicates that the application is “frivolous, vexatious, without substance or has no reasonable prospect of success”. The Magistrate may otherwise proceed in the normal way to consider whether the requirements of s 6 are established (which may include the taking of oral evidence if thought appropriate).
The Magistrate’s approach to the present application
In this case, the Magistrate did not dismiss the application under a summary frivolous or vexatious power. Her Honour proceeded carefully to consider whether the s 6 grounds had been established and expressly referred in detail to:
·the broad definition of “abuse” in s 8 of the Act;
·the grounds for the granting of an order prescribed in s 6 of the Act;
·the provisions of ss 21(3), (4) and (5) of the Act; and
·the written material submitted by the appellant and his oral evidence.
After consideration of the above matters her Honour ultimately found that no such grounds existed and refused to issue the order sought. In coming to her decision, the Magistrate stated:
[32]Whilst Mr Rana does make allegations of stalking, there is no formal offence of stalking before the court. The personal violence he alleges he suffered is not alleged to be inflicted by Ms Darda Gregurev.
…
[36]I have not just considered matters subsequent to the restraining order not being granted in 2011 but all matters, as all matters are relevant which includes his application in the Federal Court to have the comments on the internet removed by Google and the defamation case. I have endeavoured to set out the abuse which Mr Rana identifies. The incidents of abuse are detailed in the affidavits and there are some annexures which are print outs [, Mr Rana says,] of the internet comments made by Ms Darda Gregurev. It is not always easy to identify the dates those comments were allegedly posted following Mr Rana allegedly being put under surveillance.
[37]There is nothing that Mr Rana has submitted about the assault that indicates that Ms Gregurev was involved or instructed the male to assault him. Indeed if it was the male that was associated with her that Mr Rana submits assaulted him I am not satisfied [t]hat Ms Darda Gregurev followed with the male or that this male was the person who assaulted [him].
[38]Mr Rana accepts that there is nothing in the emails that is abusive and it seems to me the primary aim of the application is to have comments that he alleges were made by Ms Gregurev, (possibly but I’m unsure in the 12 months following the failure of the court to grant [Mr Rana’s] restraining order) taken down from the internet if indeed those comments were posted by Ms Darda Gregurev. There is some reference to what appears to be a judgment from Justice Mansfield but that is not evidence of fact and I am not persuaded that the comments amount to abuse nor that it is reasonable to suspect that without an intervention order there would be any further postings that would amount to abuse and that the issuing of the order is appropriate.
[39]I do not find that it is reasonable to suspect that the defendant will without intervention commit an act of abuse against Mr Rana nor that the issuing of the order is appropriate in the circumstances.
Consideration of the grounds of appeal
In addressing the grounds of appeal, some of which are long and difficult to understand, I have taken into account all of the evidential material that was before the Magistrate,[10] the written summary of argument and oral submissions of the appellant in this Court, and the authorities to which he has referred.
[10] I should record that the page references referred to in the appellant’s grounds 2 and 3 of appeal refer to an affidavit and exhibits that were prepared for the judicial review proceedings and are not formally before me. However, I take into account all of the material in that affidavit, including at the specific pages referred to by the appellant, that was before the Magistrate.
Ground 1 of appeal
Ground 1 of appeal appears to complain that the appellant was given insufficient opportunity to present his application in the Magistrates Court.
As appears from the certificate of record, the appellant appeared before the Magistrate on four occasions: 11 March, 22 April, 13 May, and 3 June, 2014. On both of the first two occasions, the Magistrate was concerned to ascertain details of the appellant’s present and previous applications and on one, or both, of those occasions the appellant supplied the Magistrate with large amounts of written material, said by him to be new material which had not been involved in previous applications.
The Magistrate’s consideration of previous applications for intervention orders involving the appellant
It is clearly both relevant and appropriate for the Court to have regard to previous applications for intervention orders involving the relevant applicant.[11] The Magistrate here had proper regard to this matter and stated:
[11] Reference to such matters is clearly within the terms of ss 6, 10(2)(e), 10(4), 21(3) and 21(4) of the Act. The Intervention Orders (Prevention of Abuse) Act 2009 is the successor legislation to the Domestic Violence Act 1994 under which restraining orders issued.
[7]The court became aware of previous applications. Mr Rana did not object to the court arranging for those files to be retrieved. It is in my view relevant and important to have an understanding of any previous applications made against and by the applicant.
[8]On 17/1/08 a restraining order was granted by the Elizabeth Magistrates Court (MCPAR-489-08) against Ranjit Rana in respect to the protected person Nina Gregurev. The conditions were as follows:
The defendant was not to enter or attend any place that Nina Gregurev may reside from time to time.
From entering any place of employment at any time or any place where Nina Gregurev may be present.
From contacting, communicating or approaching directly or through another person with Nina Gregurev.
From following or watching Nina Gregurev.
Firearms Clauses
[9]There was a status conference in relation to that matter on 24/1/08 where the defendant intimated that he would be contesting the order. The matter was listed for trial on 2/7/08 but as the defendant did not attend, the order was confirmed in his absence. The application by Ms Gregurev was supported by an affidavit signed on the 16/1/08 which disclosed that Nina Gregurev is the daughter of Darda Gregurev and the nine page affidavit set out the basis the intervention order was sought and it appears that the Magistrate relied upon the contents of the affidavit when confirming the order. This order continues today.
[10]The confirmation of the restraining order was appealed by the defendant, with the hearing on 4/8/08 in the Supreme Court before Justice David (see Rana v Police 2008 SASC 280). On 21/10/08 Justice David dismissed the appeal. The confirmed order remained in place.
[11]An application for revocation of this restraining order was then made by Mr Ranjit Rana on 22/12/08, (file MCPAR-11867-08). The matter was listed before the Elizabeth Magistrates Court. The Magistrate presiding found no substantial change in circumstances since the order was made. Ms Nina Gregurev resides in South Australia still and requires the protection of the order. His Honour then refused leave for the respondent Mr Rana to apply for revocation of the restraining order. The restraining order was to continue. This order was made on 4/2/09.
[12]This decision was appealed to the Supreme Court of South Australia, see judgment Rana v Police 2009 SASC 161. On the 9/6/09 Justice Gray found that the Magistrate was correct to conclude that no substantial change in the relevant circumstances had been established.
[13]Mr Ranjit Rana then made an application to the Adelaide Magistrates Court (2967-11) on 24/3/11 for an application for a restraining order in respect of the defendant Darda Gregurev and her daughter Nina Gregurev. On 7/4/11 this private application was not granted. The application was supported by a significant amount of written documents. No oral evidence was given by [Mr Rana].
[14]The decision of the Magistrate not to grant an ex-parte order was appealed by Mr Ranjit Rana and Justice Peek dismissed the appeal on 23/6/11. That decision of Justice Peek was then further appealed to the Full Court of the Supreme Court. Permission to appeal was refused.
The proceedings on 13 May 2014
The transcript of evidence taken on 13 May 2014 indicates that the Magistrate then informed the appellant that she had spent some time going through “the great deal of written material that you have provided”. Her Honour then spent 30 minutes in detailed questioning of the appellant (in a sympathetic and completely non-hostile fashion) in an attempt to ascertain any legitimate basis for the granting of an intervention order. Her Honour then stated to the appellant:
HER HONOUR:   All right so Mr Rana, I am not going to try and go back over the history. I know the history well. I have got all of the files from the Supreme Court, I have read all of those judgments. So now I need to, having heard from you and got some help from you really as to where it is in the affidavits I am meant to be looking. Now I can re-read things and make a decision. All right?
MR RANA:        Yes.
HER HONOUR:   I know that I have taken some time over this matter but if I want to look at things properly, if I want to understand the history properly, it does take me some time and I really had difficulty wading through those affidavits. There was lots of material. Some of it to me didn’t seem very relevant, but I think you have given me some assistance.
The Magistrate later observed in her ex tempore reasons:
[27]I have given Mr Rana in my view a fair ex-parte hearing and a number of opportunities to put the matters that he wished to put before the court in some detail. This cannot be a never-ending application. I have been committed to ensuring that he has been given a fair and reasonable opportunity to be heard.
I consider those observations to be fair and accurate and that the appellant was given sufficient opportunity to present his application in the Magistrates Court. Ground 1 of appeal is not made out.
Ground 2 of appeal
Ground 2 of appeal is somewhat difficult to decipher but appears to assert that the Magistrate failed to apply ss 8 and 10 of the Act to the evidence before her.
I consider that the Magistrate did properly apply the provisions of the Act including ss 8 and 10.
The matter most strongly relied upon by the appellant – and also later referred to in grounds 3 and 5 of appeal as well as ground 2 – is a report of a psychiatrist, Dr Marco Giardini, the content of which is as follows:
Mr Rana asked me to provide this letter to confirm that he receives psychiatric treatment for paranoid schizophrenia and depression. His medication includes the atypical antipsychotic, Seroquel XR (quetiapine) 400 mg each night, and escitalopram (antidepressant) 20 mg each morning. He has consulted me since December 2010 and he has a long history of psychiatric problems. He used to consult other psychiatrists before he was referred to me to continue his treatment. His psychiatric condition leaves him vulnerable to the effects of stress and mental abuse by other people.
One of the major issues that preoccupy Mr Rana is the matter involving several internet websites and blogs posted by certain individuals previously known [to] him. I have seen some of the websites that Mr Rana complains about, and I can confirm that he is greatly upset and distressed by the allegations in the websites and by what he regards as the personally vindictive nature of the contents of the websites. He has taken the allegations made against him very much to heart and is distressed that the allegations and comments made about him are publicly and widely available on the internet, thus affecting his reputation and social standing. He is convinced that the websites have adversely affected his efforts to gain employment and his relationships with people. The websites would be readily found by anyone using common internet search engines to research Mr Rana’s background. The negative effects on Mr Rana’s mental health by the continued presence on the internet of these blogs and websites without his consent are over and above the symptoms of his underlying conditions. This issue aggravates his paranoid schizophrenia and contributes to the perpetuation of his depressive condition.
I would anticipate that if the offending websites were removed, this would greatly alleviate his personal distress and difficulties as outlined above.
There is no doubt that the appellant has had serious mental problems for a considerable period of time and I note that David J,[12] Gray J[13] and Doyle CJ[14] each referred to that matter in their respective judgments (which are alluded to by the present Magistrate in a passage extracted above).
[12] Rana v Police [2008] SASC 280, [12] (David J).
[13] Rana v Police [2009] SASC 161, [13] (Gray J).
[14] Rana v Gregurev; Rana v Gregurev [2011] SASCFC 157, [6] (Doyle CJ).
The Magistrate here concluded at paragraphs [38] to [39] of her ex tempore reasons (reproduced above) that, irrespective of whether the respondent did, or did not, post the material complained of on the internet, and irrespective of whether anything that she did post was or was not abusive:
[38]… I am not persuaded that … it is reasonable to suspect that without an intervention order there would be any further postings that would amount to abuse and that the issuing of the order is appropriate.
[39]I do not find that it is reasonable to suspect that the defendant will without intervention commit an act of abuse against Mr Rana nor that the issuing of the order is appropriate in the circumstances.
This was a conclusion open to the Magistrate. The appellant has not demonstrated appellable error in connection with this matter or with other matters that may be complained of in this ground of appeal. Ground 2 of appeal is not made out.
Ground 3 of appeal
Ground 3 of appeal appears to assert that the Magistrate wrongly exercised her discretion to refuse the appellant’s application and, again having regard to the report of Dr Marco Giardini, together with the reasons of Mansfield J in separate proceedings taken by the appellant against Google Australia in the Federal Court,[15] the Magistrate ought to have found that there was evidence which gave rise to a reasonable suspicion that Ms Gregurev would, without intervention, have committed an act of abuse.
[15] Rana v Google Australia Pty Ltd [2013] FCA 60.
There may be implicit in this ground of appeal, or in ground 2 of appeal, an assertion that the Magistrate erred in failing to find that the comments alleged to have been made by the respondent in a “blog” on the internet about the appellant amounted to “an act of abuse” for the purposes of the Act.
The position is, as the Magistrate correctly appreciated, that what was required was not just that the respondent Ms Gregurev had in the past committed an act of abuse against Mr Rana (if that were so) but rather that it is reasonable to suspect that she would, without intervention, commit an act of abuse against Mr Rana in the future; and that the issuing of the order is appropriate in the circumstances.
In the present case it was open to the Magistrate, paying full regard to the matters relied upon by the appellant, not to be satisfied that it is reasonable to suspect that the respondent would, without intervention, commit an act of abuse against Mr Rana in the future.
Further, and irrespective of whether the Magistrate was so satisfied, it was also open to the Magistrate to determine that it was not appropriate in all of the present circumstances to make the order sought (s 6(b)). This latter determination is, or is akin to, an exercise of discretion that falls to be exercised according to the precepts established in House v The King.[16] The discretion here thus has a very wide ambit and it has not been established by the appellant that her Honour took into account irrelevant matters, or failed to take into account relevant matters, or otherwise erred, when undertaking that exercise. Ground 3 of appeal is not made out.
[16] (1936) 55 CLR 499.
Ground 4 of appeal
Ground 4 of appeal appears to assert that the Magistrate did not apply (or properly apply) ss 6, 10, or 28 of the Act.
However, I consider that it is clear from the Magistrate’s ex tempore reasons that her Honour explicitly adverted to, and properly applied, ss 6 and 10. Her Honour was also no doubt well aware of the content of s 28, but of greater relevance is that the Magistrate correctly stated that her task under s 6 of the Act was as follows:
[40]This is not a trial, I am not required to make findings in relation to each of the matters, they do not have to be proved on the balance of probabilities. At this point of the application I simply have to make a decision as to whether it is reasonable to suspect that the defendant will without intervention commit an act of abuse against Mr Rana and the issuing of the order is appropriate in the circumstances.
[41]I do not find that section 6 has been satisfied as such I am not prepared to grant an interim intervention order. (Emphasis added)

It may be possible to argue that paragraph [40] of the ex tempore reasons is not an entirely accurate statement of the position since it may be argued that one usually needs some established substratum of fact to give rise to a reasonable suspicion.[17] However, I find it unnecessary to consider that matter further. If there be such an error, it was an error in favour of the appellant; the fact is that on the approach most favourable to the appellant, the Magistrate was not satisfied of the matters requisite to the making of the order sought. Ground 4 of appeal is not made out.
[17] See generally Police v Giles [2013] SASC 11.
Ground 5 of appeal
As to ground 5 of appeal, sub-grounds (i) to (iii) assert that the Magistrate “under performed her duties”; that her decision “was based on conjecture and speculation”; and that the decision “was made without caution”. None of these complaints is established. Sub-ground (iv) again refers to the report of Dr Marco Giardini and the reasons of Mansfield J in Rana v Google Australia Pty Ltd in the Federal Court.[18] Sub-ground (iv) is so jumbled and vague that no meaning beyond the matters already dealt with above can sensibly be attributed to it. Ground 5 of appeal is not made out.
[18] [2013] FCA 60.
Addendum
Subsequent to completing the above reasons, and setting the matter down for judgment, I have read the judgment of Nicholson J in Cook v Galloway[19] delivered on 6 March 2015. Although that decision involved an unsuccessful appeal from a refusal to confirm an interim intervention order, whereas the present case involves a refusal to grant an interim intervention order, the two decisions have a degree of commonality of approach. I agree with what his Honour has written and find it unnecessary to add to what I have written above.
[19] [2015] SASC 36.
Disposition of the appeal
I find that none of the grounds of appeal are made out. The appeal is dismissed.
Orders
I make the following orders:
1Time within which to appeal is extended to 29 October 2014.
2Permission to appeal is granted in so far as it is necessary.
3The appeal is dismissed.