Rana v Police - [2009] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANA v POLICE
[2009] SASC 161
Judgment of The Honourable Justice Gray
9 June 2009
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against an order of Magistrate refusing permission to the appellant to apply for revocation of a restraining order - consideration of section 99F of Summary Procedure Act 1921 (SA) - whether Magistrate erred in finding no substantial change in relevant circumstances.
Held: appeal dismissed - Magistrate correct to conclude that no substantial change in relevant circumstances had been established.
Summary Procedure Act 1921 (SA) s 99, s 99C and s 99F, referred to.
Rana v Police [2008] SASC 280; Rana v Police [2008] SASC 347, considered.

RANA v POLICE
[2009] SASC 161
Magistrates Appeal
GRAY J:

This is an appeal against an order of a Magistrate refusing the appellant, Ranjit Shamsher Jung Bahadur Rana, permission to apply for revocation of a restraining order.
On 17 January 2008 an application was made pursuant to section 99 of the Summary Procedure Act 1921 (SA) for a restraining order on behalf of Ms G. The Court made an ex parte restraining order and issued a summons requiring Mr Rana to attend Court on 24 January 2008.
On 20 January 2008, Mr Rana was served with a copy of the restraining order and summons. Attached were two pages of instructions with respect to Mr Rana’s rights and obligations. Thereafter, following several interlocutory hearings at which Mr Rana appeared, the matter was listed for hearing on 2 July 2008.
Mr Rana did not appear on the day of trial. The matter was adjourned on two occasions during the morning. On the last of those occasions, at the direction of the Magistrate, enquiries were made of the Sheriff’s Officer and the Court Registry as to whether Mr Rana had made any contact. The Magistrate was informed that Mr Rana had not done so. The Magistrate noted that Ms G had made special arrangements to be present at Court on that day, and then pursuant to his powers under section 99C of the Summary Procedure Act confirmed the restraining order.
Mr Rana appealed to this Court against the confirmation order. A learned Judge, in dismissing the appeal, summarised the evidence before the Magistrate:[1]
[1] Rana v Police [2008] SASC 280 at [7] – [9] (David J).
Both affidavits [of Ms G] contain allegations that the appellant:
-met the alleged victim in 1989 when both were students at the Kensington Adult Matriculation College;
-followed her to the gym, became a member and showed up in the pool when she was there in 1989;
-sent the alleged victim letters with critical religious content in 1991 and 1992 when she resided in Melbourne;
-presented at the alleged victim’s door on a number of occasions after she moved back to Adelaide in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] SASC 161
Decision Date: 9 June 2009

CaseChat Overview and Summary

In the case of Rana v Police, the appellant sought to appeal against a decision of the Magistrate in the Magistrates Court of South Australia, who had refused to grant the appellant permission to apply for the revocation of a restraining order. The legal issue before the court was whether the Magistrate had erred in finding that there had been no substantial change in the relevant circumstances, as required by section 99F of the Summary Procedure Act 1921 (SA). The court was also required to consider the principles on which it acts when interfering with the discretion of the Magistrate.

The court found that the appellant had not provided any evidence to suggest that the Magistrate's finding was incorrect. In fact, there was a considerable body of medical evidence confirming that the appellant continued to suffer from a mental illness. Dr Goldney, a psychiatrist, had expressed the view that the appellant was suffering from paranoid schizophrenia. The court found that there was nothing advanced by the appellant on the appeal that gave any reason to doubt the correctness of the Magistrate's order.

The appeal was dismissed by the court, as there was no basis for interference with the Magistrate's discretion. The court found that the appellant had not demonstrated any error in the Magistrate's decision and that the evidence supported the Magistrate's finding that there had been no substantial change in the relevant circumstances.

The final orders of the court were that the appeal be dismissed and that the decision of the Magistrate be upheld.

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

The material referred to on the appeal included a considerable body of medical evidence confirming that Mr Rana has, and continues to suffer, from a mental illness. A psychiatrist, Dr Goldney expressed the view that Mr Rana was suffering from paranoid schizophrenia. There is nothing advanced by Mr Rana on the appeal that gives any reason to doubt the correctness of the Magistrate’s order. Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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