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
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- Rana v Gregurev [2015] SASC 37
- Case
- [2015] SASC 37
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed whether the evidence provided by Mr Rana sufficiently substantiated the grounds for issuing an AVO. The court needed to assess the credibility and sufficiency of the evidence presented regarding the alleged stalking and abuse, and whether there was a reasonable suspicion that without an AVO, Ms Gregurev would commit acts of abuse against Mr Rana. The court also had to consider the relevance and weight of past incidents, including previous applications for restraining orders and related litigation, in determining the likelihood of future abuse.
In its reasoning, the court meticulously examined the evidence submitted by Mr Rana. It noted that while Mr Rana made allegations of stalking and abuse, there was no formal offence of stalking before the court, and the alleged personal violence was not inflicted by Ms Gregurev. The court highlighted the absence of direct evidence linking Ms Gregurev to the incidents of abuse, such as the alleged assault by a male associated with her. Furthermore, the court found no evidence that Ms Gregurev had instructed or followed the male involved in the assault. The Magistrate also considered past applications for restraining orders and related litigation, concluding that these did not sufficiently establish a reasonable suspicion that Ms Gregurev would commit acts of abuse against Mr Rana in the future.
Ultimately, the court upheld the Magistrate's decision to refuse the issuance of an AVO, finding that the evidence did not meet the required threshold for such an order. The reasoning underscored the need for clear and compelling evidence of a reasonable suspicion of future abuse to justify the issuance of an AVO. The court determined that the evidence provided by Mr Rana was insufficient to meet this standard.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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