Allegretta v Farrell - [2022] WADC 114

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   ALLEGRETTA -v- FARRELL [2022] WADC 114
CORAM:   LEMONIS DCJ
HEARD:   2 DECEMBER 2022
DELIVERED          :   21 DECEMBER 2022
PUBLISHED           :   21 DECEMBER 2022
FILE NO/S:   APP 47 of 2022
BETWEEN:   ALDO ALLEGRETTA
Appellant
AND
KATE FARRELL
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MALONE
File Number            :   CIV/PER/RO/1551/2022

Catchwords:

Appeal from magistrate's decision to order a final violence restraining order against the appellant to protect the respondent - Whether sufficient factual basis to grant such an order - Whether the violence restraining order should be replaced with a misconduct restraining order

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal allowed

Violence restraining order set aside and replaced with a misconduct restraining order for a term of 14 months from delivery of these reasons

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

Cases referred to in decision:

Brocklehurst v Wolinski [2015] WADC 36
Cullen v Woodside Energy [2021] WADC 56
House v The King (1936) 40 HCA; 55 CLR 499

LEMONIS DCJ:

This appeal is brought pursuant to s 64 of the Restraining Orders Act 1997 (WA) (Act).
It is an appeal from the decision of learned Magistrate Malone made 4 July 2022 to make a violence restraining order (VRO) against the appellant (Mr Allegretta) to protect the respondent (Ms Farrell). At the time, Mr Allegretta and Ms Farrell were neighbours. They are neighbours no more.
At the hearing of the appeal, both parties represented themselves. Quite understandably, they did not have an appreciation of the nature of the appeal and had filed in advance substantial documents in effect reflecting a re‑agitation of the evidence before his Honour.
However, that is not the purpose of this appeal. An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo, meaning it is not a new hearing. Given the appeal is by way of a rehearing, it is necessary for Mr Allegretta to demonstrate error by his Honour. This error must be a legal, factual or discretionary error.[1]
[1] Brocklehurst v Wolinski [2015] WADC 36[14] ‑ [15].
Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) applies to the appeal.[2] Pursuant to s 43(7) of the Act, I may:
(a)confirm, vary or set aside all or a part of the lower court's judgment;
(b)give any judgment and make any order that the Magistrates Court could have given or made;
…
[2] Section 64(2) of the Act.
Before addressing Mr Allegretta's grounds of appeal, it is useful to first identify the relevant statutory provisions, the procedural history and the key findings made by his Honour.

Restraining Orders Act 1997 (WA)

VRO

Pursuant to s 11A of the Act, a court may make a VRO if satisfied:
(a)of one or both of the matters set out in s 11A(a) and s 11A(b); and
(b)that making a VRO is appropriate in the circumstances.
Accordingly, s 11A provides to the court a discretion to make a VRO. That discretion may only be exercised where the threshold criteria has first been established. In that respect, the court must be satisfied of one or both of the matters set out in s 11A(a) and s 11A(b), namely:
(a)the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit personal violence against the person seeking to be protected …
The phrase 'personal violence' is defined in s 6 by reference to people who are not in a family relationship, which is the case here. Personal violence includes assaulting or causing personal injury to a person, stalking the person, or threatening to assault or cause personal injury to that person or to stalk them: s 6(2)(a), s 6(2)(c) and s 6(2)(d).
When considering whether to make a VRO and its terms, the court is to have regard to the matters set out in s 12 of the Act.

Misconduct restraining order

Pursuant to s 34 of the Act, a court may make a misconduct restraining order (MRO). Section 34 states:
34.Grounds for misconduct restraining order
A court may make an MRO if it is satisfied that -
(a)unless restrained, the respondent is likely to -
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or
(ii)cause damage to property owned by, or in the possession of, the person seeking to be protected; or
(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b)granting an MRO is appropriate in the circumstances.
When considering whether to make an order and its terms, the court is to have regard to the matters set out in s 35 of the Act. These matters include the need to ensure the person seeking the order is protected from intimidatory or offensive behaviour, any potential hardship to Mr Allegretta if the order is made, other legal proceedings between the parties, any previous similar behaviour of Mr Allegretta towards Ms Farrell and any other matters the court considers relevant: s 35(1)(a), s 35(1)(d), s 35(1)(f), s 35(1)(h) and s 35(1)(i). The need to ensure the person seeking the order is protected from intimidatory or offensive behaviour is a matter of primary importance.[3]
[3] Section 35(3) of the Act.

Procedural history and the reasons for decision

On 25 March 2022, learned Magistrate Watt granted an interim violence restraining order against Mr Allegretta. Her Honour found there were acts of personal violence, saying:[4]
And I do that on the basis of the threat has been made recently, the escalating behaviour, the damage to property that is clearly inside the property line of your property…
[4] ts 8 (25 March 2022).
The matter ultimately came before Magistrate Malone on 4 July 2022 for a final order hearing, that is to assess whether or not a final VRO should be made.
At the hearing before his Honour on 4 July 2022, Ms Farrell gave evidence, as did her husband and her father, Mr Waterworth.
Mr Allegretta did not give evidence. Ms Allegretta did give evidence.
His Honour summarised the evidence at pages 49 ‑ 53 of the transcript and made the following factual findings:
1.Mr and Ms Farrell were neighbours with Mr and Ms Allegretta.
2.Mr and Ms Farrell moved into their home in 2021.
3.At the time they moved in, the Allegrettas had a concern with a tree in the backyard of the Farrells' property. Mr Farrell had initially indicated that he may remove that tree but subsequently changed his mind.
4.This then soured the relationship between them.
5.The Allegrettas played loud music at their home which disrupted the Farrells. The local council issued infringement notices to the Allegrettas in relation to this.
6.The Allegrettas pointed a light in the direction of the Farrells' property, the purpose for which seemed to be targeted at the Farrells rather than a legitimate purpose to light up the Allegrettas' property.
7.A vine on the border between the two properties was repeatedly damaged by Mr Allegretta. The damage was done to the vine on the Farrells' side of the border.
8.Ms Farrell's evidence was that on one occasion when this happened, she called her father Mr Waterworth to come over to help put the vine back up, which he did. Ms Farrell's evidence was that Mr Allegretta said to her, 'Every time you put it up, I will take it down' and 'I'm going to make your life a misery'. Ms Farrell had given similar evidence before Magistrate Watt.
9.Mr Waterworth's evidence was that Mr Allegretta said to Ms Farrell, 'If you put it back I'm going to pull it down and I'm going to make your life difficult'. His Honour considered Mr Waterworth's version was similar to Ms Farrell's evidence at the hearing before Magistrate Watt and on the final hearing.
10.Mr Farrell reorientated the CCTV on his property by moving one of the cameras and the CCTV caught Mr Allegretta reaching over the fence to continue with efforts towards the vine.
11.Ms Allegretta's evidence is to the effect, 'I'm really here just to speak in support of my loving husband and just to remind you that there's no violence or threats so this whole thing should be dismissed'.
12.Mr Farrell explained how his wife is concerned at home when he is not there and how she has become the focus of the Allegrettas' ire.
His Honour referred to the basis upon which the interim order was made as I have set out above.[5]
[5] ts 51, final hearing (4 July 2022).
Overall, his Honour described the perspective of Mr Allegretta as being:[6]
As far as I'm concerned, I haven't done anything wrong, but I do want to keep focusing on the tree in your backyard, and I do want to interfere with your vine whenever I feel I like it. And interfere with other things that might be important to you, and I want to play music loudly and I will speak to the council about it, because I love my music.
[6] ts 53, final hearing (4 July 2022).
His Honour then referred to what Mr Allegretta had said to Ms Farrell regarding the vine, his Honour then saying:
Now, where's the end to that? That's the concern about the behaviour. If Mr Allegretta keeps being unsuccessful with his actions and if the authorities keep issuing him with the infringements that they do, what is he going to do?
His Honour then concluded:[7]
It does seem to me that [Ms Farrell] is rightly to have concerns about somebody who has that focus and has gone to the lengths that have been detailed about what Mr Allegretta may do next. So I am of the view that Ms Farrell has made out the grounds for the confirmation of the interim violence restraining order and satisfied the court as I say on the balance of probabilities of the need for that confirmation. And that will be the order of the court, that the interim violence restraining order is confirmed.
[7] ts 53, final hearing (4 July 2022).
His Honour did not identify the basis upon which the jurisdiction to make such an order was enlivened, in particular by reference to the concept of personal violence within the meaning of s 6 and s 11A. While his Honour expressed a concern about what Mr Allegretta may do in the future, that concern by itself does not engage the jurisdiction to make a VRO.
I turn now to the grounds of appeal.

Grounds of appeal

Mr Allegretta's appeal notice dated 18 July 2022 set out the following grounds:[8]
1.The appellant has limited education and comprehension of legal proceedings.
2.The appellant was misinformed by legal aid and believed that the hearing was to agree to move forward with a trial, not a final order.
3.The appellant did not consent to moving ahead with a final order hearing for the same day.
4.The Magistrate did not agree to the appellant's request to adjourn the hearing so that the appellant could provide a statement of defence.
5.The Magistrate did not allow the appellant to provide evidence of the respondent's behaviour since the interim order was put in place, in particular the protected person has repeatedly tried to make the appellant breach the order.
6.The respondent stated in the VRO application that her father was a witness to the alleged threat made by the appellant. In the court transcript from the application hearing, the respondent then stated her father did not witness the alleged threat. The inconsistency of statements would show that the respondent was lying in the evidence she gave to the magistrate.
7.Had the magistrate heard this evidence, it would have been very obvious that the respondent was lying about the appellant's behaviour and alleged threat. Therefore, a violent restraining order was not justified.
[8] Where necessary, I have made grammatical corrections.
At the hearing of the appeal, Mr Allegretta submitted that he did not have relevant documents and photographs with him at the hearing on 4 July 2022. On the appeal, Mr Allegretta also submitted that after his Honour did not adjourn the matter, Mr Allegretta did not participate substantively in the hearing.
It seems to me Mr Allegretta's complaint is broadly reflected by grounds 1 to 5 of the appeal notice. There are two concepts caught up in Mr Allegretta's complaint. First, that his Honour erred by not adjourning the hearing to a later time or date. Second, that the principles of natural justice were breached in respect of the conduct of the hearing.
The decision to refuse the adjournment is a discretionary decision. In the circumstances of this case, for that decision to be in error, I need to be satisfied it is unreasonable or plainly unjust.[9]
[9] House v The King (1936) 40 HCA; 55 CLR 499, 505.
The principles of natural justice were recently summarised by Stavrianou DCJ in Cullen v Woodside Energy,[10] which summary I adopt:
1.Natural justice requires that a party be given a reasonable opportunity to present their case.
2.What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised.
3.As a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests.
4.Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice.
[10] Cullen v Woodside Energy [2021] WADC 56 [46] ‑ [49].
Section 13 of the Magistrates Court (Civil Proceedings) Act sets out the court's duties in dealing with a case such as this. Section 13 provides that the court is to ensure that cases are dealt with justly, which includes ensuring that they are dealt with efficiently, economically and expeditiously and, so far as practicable, the parties are on an equal footing and the court's resources are used as efficiently as possible.
It is useful to set out the background to the hearing on 4 July 2022 and also an outline of how the hearing that day proceeded. That background and outline is as follows:
1.On 28 March 2022, Mr Allegretta filled out and signed an objection to the interim order.[11] The objection form asked how many witnesses Mr Allegretta intended to call, including himself, and he answered one.
[11] Lower court file, page 11.
2.The objection form said at the start that if Mr Allegretta objected to the interim order, the court will then arrange a final order hearing at which it will consider anything Mr Allegretta wants to say before deciding whether to make a final violence restraining order. The form also said the court will let Mr Allegretta know where and when the final order hearing will be held.
3.On 28 March 2022, a notification of hearing was sent to Mr Allegretta. It said that the matter had been set down for a restraining order final order hearing on 4 July 2022 at 9.30 am.[12]
[12] Lower court file, page 73.
4.The Allegrettas applied for and obtained a copy of the transcript of the hearing on 25 March 2022.[13] Ms Allegretta read this transcript before the hearing on 4 July 2022.[14] I consider it is likely she discussed it with Mr Allegretta.
[13] Lower court file, page 13.
[14] ts 41, final hearing (4 July 2022).
5.The matter initially came on before Magistrate De Maio on 4 July 2022 at 10.02 am.
6.Mr Allegretta and Ms Farrell were there. Her Honour explained to them that she may not be able to hear it and it may be allocated to another magistrate for hearing. Her Honour then asked both parties: [15]
[15] ts 2, initial hearing (4 July 2022).
Are you both still wanting to proceed? What's your position?
Ms Farrell responded:
Yes.
Mr Allegretta responded:
I still want to proceed.
7.Her Honour then went through with Mr Allegretta whether he was prepared to provide an undertaking, explaining that an undertaking is a promise set out in writing.[16] Mr Allegretta was initially reluctant to do so, saying he did not believe he had done anything wrong.[17] Her Honour explained to Mr Allegretta he could provide such an undertaking without accepting he had done anything wrong. Mr Allegretta responded:[18]
That's not a problem.
8.Ms Farrell then said that she had no faith in Mr Allegretta's behaviour and wanted to proceed.[19]
9.Her Honour explained that she could not force Ms Farrell to take up an undertaking and then said:[20]
I'm going to put your names down on the board, in the hope that another magistrate might finish before I do. But if they don't, I will definitely take you back and hopefully we can start a trial today.
[16] ts 3, initial hearing (4 July 2022).
[17] ts 4, initial hearing (4 July 2022).
[18] ts 5, initial hearing (4 July 2022).
[19] ts 6, initial hearing (4 July 2022).
[20] ts 6 - ts 7, initial hearing (4 July 2022).
Ultimately, the matter came on for hearing before Magistrate Malone. His Honour went through with Mr Allegretta at some length the court process.[21]
[21] ts 21 ‑ ts 24, final hearing (4 July 2022).
Mr Allegretta's request for an adjournment arose implicitly after Ms Farrell had given her evidence and his Honour asked if Mr Allegretta wished to cross‑examine her. Mr Allegretta said that he and his wife did not think there was going to be a trial that day. Mr Allegretta also said:[22]
… we went to have legal advice and we didn't bring all our paperwork and photos and things like that and letters from other neighbours … to show that, you know, what Ms Farrell has been like the day she has -come into the neighbourhood.
[22] ts 21, final hearing (4 July 2022).
His Honour responded that the trial had already started and indicated it would continue. His Honour asked if Mr Allegretta wanted to ask Ms Farrell any questions.
His Honour also explained to Mr Allegretta that he could give evidence if he wished, explaining to Mr Allegretta that if he did not give evidence then his Honour would have nothing from Mr Allegretta's side. Mr Allegretta responded that, 'my wife is more for dates and times and what has been happening', he would love to call his wife and his wife is a better person for all this.[23]
[23] ts 20 ‑ ts 24, final hearing (4 July 2022).
Given Mr Allegretta did not wish to give evidence, his Honour said he was not going to bother with cross-examination of Ms Farrell.[24]
[24] ts 25, final hearing (4 July 2022).
Ms Farrell then called her husband to give evidence. When she finished asking her questions, his Honour asked Mr Allegretta if he wished to ask any questions. Mr Allegretta's response was, 'my wife would be able to tell you the whole of the story from the beginning' and also said, 'I'll ask you to do that for me please'.[25] Mr Allegretta did not ask any questions of Mr Farrell.
[25] ts 37, final hearing (4 July 2022).
Ms Farrell then called her father, Mr Waterworth, to give evidence. When Ms Farrell finished her questions, his Honour asked Mr Allegretta if he wanted to ask Mr Waterworth any questions and he said, 'No'.[26] His Honour then asked Mr Allegretta if he was calling his wife as a witness and Mr Allegretta said:[27]
Yes. She can tell you the whole story, how it all started.
[26] ts 39, final hearing (4 July 2022).
[27] ts 40, final hearing (4 July 2022).

Ms Allegretta gave evidence and was questioned by Ms Farrell. Mr Allegretta and Ms Farrell then made some short submissions and his Honour delivered oral reasons granting a VRO.

Analysis regarding grounds 1 to 5

I consider these grounds and their potential effect need to be viewed collectively.
As I have explained, Mr Allegretta was told in advance of the hearing on 4 July 2022 that the matter was proceeding to a final order hearing that day. On the morning of 4 July 2022, Magistrate De Maio told Mr Allegretta the matter would proceed to trial that day and Mr Allegretta did not object.
Mr Allegretta said on the hearing of the appeal that his legal advice was to the effect:[28]
When you go in, ask for undertaking and then they will do another time and a date for you.
[28] ts 9.
While Mr Allegretta told Magistrate Malone that he had got legal advice, he did not mention that his legal advice was to try to resolve the matter by way of an undertaking. Furthermore, Mr Allegretta did not ask for the matter to be resolved by undertaking when it first came on for hearing before Magistrate De Maio. It was only after her Honour explained that an undertaking could be given without admission, that Mr Allegretta said that an undertaking was not a problem. So, in the hearings before Magistrate Malone and Magistrate De Maio, Mr Allegretta did not act in accordance with the legal advice he says he received.
Magistrate Malone gave Mr Allegretta the opportunity to cross‑examine Ms Farrell, Mr Farrell and Mr Waterworth. Magistrate Malone raised with Mr Allegretta the importance of him giving evidence as otherwise his Honour would have nothing from Mr Allegretta's side. In response, Mr Allegretta did not suggest that he was not sufficiently prepared to give evidence. Rather, his response was that his wife was the person who knew the full story and she would give evidence.
That position is consistent with Mr Allegretta's objection document in which he said he was only calling one witness. Also, as I have said, Mr Allegretta applied for and obtained a copy of the transcript of the hearing on 4 March 2022 and Ms Allegretta read it before the hearing on 4 July 2022.
Further, during his Honour's discussion with Mr Allegretta about cross‑examining Ms Farrell, his Honour referred to Ms Farrell's evidence about Mr Allegretta damaging the vine and Mr Allegretta being caught on CCTV leaning over the fence doing so. So, in this way, Mr Allegretta was informed of particular matters of concern to his Honour arising from Ms Farrell's evidence.
Furthermore, on the hearing of the appeal, Mr Allegretta accepted that he had cut the vine on the Farrell's side of the property, and also accepted it was him in the Farrell's CCTV footage doing so. His explanation for cutting the vine was that police officers had told him that because he built the frame on which the vine was situated, he could take such steps.[29]
[29] ts 19 - ts 20, ts 51.
In relation to Mr Allegretta's conversation with Ms Farrell that was overheard by Mr Waterworth, on the appeal Mr Allegretta said what happened was:[30]
… when I came outside and she was putting the wire back up, I said to her - I said, "If you put that wire back up, I will put it - you know, I will take it off and what we're [g]oing to do is make our life miserable…
We will make our lives miserable".
[30] ts 18.
Mr Allegretta could have given evidence about these matters, but did not, and instead called his wife as the only witness. In relation to the vine, Ms Allegretta explained that the lattice work had been there for 22 years, they were concerned about the weight of the vine on it and also the pest control associated with the area where the vine was situated.[31] So, the Allegretta's explanation for why Mr Allegretta was interfering with the vine was before his Honour.
[31] ts 45 - ts 46, final hearing (4 July 2022).
Also, in relation to ground 1, I am satisfied that Mr Allegretta sufficiently understood what was occurring at the hearings on 4 July 2022 and both Magistrate De Maio and Magistrate Malone went to some lengths to explain the process to him.
Having regard to these matters and the application of s 13 of the Magistrates Court (Civil Proceedings) Act, I am not satisfied that his Honour's decision to not adjourn the matter was an unreasonable or plainly unjust decision. At the time Mr Allegretta raised that he had not brought all his paperwork, Ms Farrell had already given evidence. The notices sent to Mr Allegretta made clear the matter was set down for hearing on 4 July 2022, as did Magistrate De Maio on the morning of 4 July 2022. Mr Allegretta said he wanted to proceed. Also the critical issue between the parties was what happened in the interactions between them, which Mr Allegretta could have explained in evidence without documents and photographs.
I am also satisfied that the rules of natural justice were not breached. In my view, his Honour gave Mr Allegretta a reasonable opportunity to present his case and to give evidence in his defence.
I therefore dismiss grounds 1 to 5.

Grounds 6 and 7

These grounds effectively raise two matters. First, whether his Honour should have disbelieved Ms Farrell because what she said at the initial hearing differed to her evidence on the final hearing. This was directed to her evidence of what her father overheard Mr Allegretta say to her. The second aspect is directed to whether there was a proper basis upon which his Honour could make a VRO.
I will deal with these matters in that order.

Inconsistency of evidence from Ms Farrell as to what her father heard

In relation to Mr Allegretta's complaint at grounds 6 and 7 regarding Ms Farrell's evidence, there is a relatively short answer to that. Ms Farrell was explaining what she thought Mr Waterworth had heard, however Ms Farrell could not have known what Mr Waterworth had actually heard. Only Mr Waterworth knew that.
At the first hearing, Ms Farrell said that Mr Waterworth did not hear the threatening part of the conversation, so that was the words 'I'm going to make your life miserable'.[32]
[32] ts 4 (25 March 2022).
However, by the time of the final hearing, Ms Farrell had become aware that Mr Waterworth heard all of the conversation.[33] Of course, as I have said, Ms Farrell could not possibly know what Mr Waterworth actually heard. Ultimately, what is important is Mr Waterworth's evidence of what he heard, not Ms Farrell's understanding of what he heard. Mr Waterworth gave evidence he heard Mr Allegretta say something to the effect of 'I'm going to make your life difficult'. His Honour found this was similar to Ms Farrell's evidence that Mr Allegretta said, 'I'm going to make your life miserable girl'.[34]
[33] ts 25, final hearing (4 July 2022).
[34] ts 50, ts 14 as to what Ms Farrell said in evidence, final hearing (4 July 2022).
In summary, at the first hearing Ms Farrell did not appreciate the full extent of what Mr Waterworth had heard. By the time of the final hearing, she did. Magistrate Malone treated her evidence and Mr Waterworth's evidence as being effectively consistent. Their evidence was not word for word the same. If anything, this enhances the honesty of it. It does not give rise to a conclusion that Ms Farrell lied.
I therefore dismiss the complaint at grounds 6 and 7 in so far as it applies to Ms Farrell's evidence as to what Mr Waterworth heard Mr Allegretta say.

Was there a proper basis to make a violence restraining order?

I have set out at [7] ‑ [9] of these reasons the jurisdictional basis upon which a court can make a VRO.
Unfortunately, his Honour did not precisely identify the basis for concluding that the threshold requirements set out in s 11A had been made. Having regard to the factual findings which his Honour made, I am satisfied it was not open to his Honour to find that the relevant threshold requirements to justify making a VRO were met.
In that respect, there is no suggestion on his Honour's findings that Mr Allegretta assaulted or caused personal injury to Ms Farrell or stalked her, nor is there any suggestion he threatened to do so. For the same reasons, I also am satisfied there were not reasonable grounds for Ms Farrell to apprehend that Mr Allegretta would do such things.
The findings reflect conduct that is in the nature of continuing harassment and intimidation. At its highest, the evidence of any threats was that Mr Allegretta threatened to make Ms Farrell's life miserable. While she explained in her evidence that he said that in a vile, aggressive, nasty way,[35] his Honour did not make any findings in that respect. In any event, even if it was said in such a tone and also taking account of the damage to the vine, I still do not think that meets the threshold necessary to engage the jurisdiction set out in s 11A.
[35] ts 14, final hearing (4 July 2022).
In my view, therefore, his Honour's findings do not demonstrate sufficient grounds for the making of a VRO and his Honour therefore made an error by making such an order.
So, in that respect, the appeal ought be allowed. However, that is not the end of the matter. On the hearing of the application for a VRO it was open to his Honour to make an MRO.[36] And, on this appeal, I can make any order which his Honour could have made.[37]
[36] Section 43(1a)(b) of the Act.
[37] Section 43(7)(b) of the Magistrates Court (Civil Proceedings) Act.
In assessing whether to make an MRO, I need to have regard to the factual findings which his Honour made.
Further, in my view, I can have regard to the current circumstances between the parties in assessing the appropriateness and terms of any such order. I also consider I can have regard to Mr Allegretta's submissions on the appeal as they form part of the current circumstances.
In my view, having regard to his Honour's findings, Mr Allegretta has behaved in an intimidating and offensive way to Ms Farrell and she was intimidated and offended by his behaviour. Mr Allegretta's behaviour reflects an entitlement and intention to do what he considers necessary to achieve his preferred outcome, irrespective of the impact of his behaviour on others. I think this is best illustrated by what has happened in relation to the vine. Mr Allegretta repeatedly cut the vine on the Farrells' side, without authority from them. And he told Ms Farrell that he would do this every time she put the vine back up and would make her life difficult (on Mr Waterworth's evidence). This behaviour is intimidatory and offensive and Ms Farrell was offended and intimidated by it. Similarly, Mr Allegretta secretly cutting the vine when the Farrells were not home as recorded on the CCTV also is intimidating and offensive.
I consider Mr Allegretta's submissions made on the appeal reinforce my concerns as to his behaviour. In submissions, Mr Allegretta accepted that he cut off parts of the vine on the Farrells' side of the property and also accepted that the Farrells' CCTV footage showed him doing this. His explanation for doing so was that police officers had told him that because he built the frame on which the vine was situated, he could cut the vine, and lean over on to the Farrells' property to do so. Mr Allegretta had great difficulty accepting that this conduct could be regarded as being intimidating or offensive to the Farrells.
Further, I have set out at [47] what Mr Allegretta submitted on this appeal he had said to Ms Farrell. Two matters arise from this. First, it reflects that he would continue to cut down the vine every time the Farrells put it back up. So, in effect, he would not stop. Second, he used language of we 'will make our lives miserable'. He did not see anything wrong with this behaviour. However, that kind of behaviour and comment, in effect reflecting a willingness to do what he considers necessary to achieve his preferred outcome, irrespective of the impact on Ms Farrell, can reasonably be regarded as intimidatory or offensive to the Farrells.
The matters I have just explained at [69] and [70] were not in evidence before his Honour. However, I raise them to demonstrate Mr Allegretta's continuing lack of insight as to the capacity of his conduct to adversely affect others.
In making the assessment as to whether to make an MRO, I also need to take account that the circumstances have changed since the making of the VRO.
The Farrells have now sold and moved from their property. They still however live in the same general locality. Mr Allegretta has commenced legal proceedings against the Farrells for damage to the seat covers of his boat, which he alleges were damaged by debris (leaves) from the tree on their front lawn. The claim is for $750.
Having reflected on these matters, in my view, based on the factual findings made by his Honour, the current circumstances and Mr Allegretta's position as reflected on the appeal, I am satisfied that unless restrained, Mr Allegretta is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to Ms Farrell and that would in fact intimidate or offend her. Thus, the first criteria necessary to make such an order is met: s 34(a)(i).
I also consider that granting a misconduct restraining order is appropriate in the circumstances and in so deciding I have regard to the matters set out in s 35(1) of the Act. In that respect, I take account that, in my view, Mr Allegretta has previously engaged in conduct that is intimidating and offensive to Ms Farrell and she has in fact been intimidated and offended by it. Also, while the Farrells have now moved, there remains a not insubstantial risk that Ms Farrell and Mr Allegretta will come across each other as an ordinary incident of living in the same neighbourhood. Moreover, they will need to interact for the purposes of the civil claim brought by Mr Allegretta against the Farrells. Having regard to these matters overall, I consider there is a need for an order to ensure that Ms Farrell is protected from intimidatory or offensive behaviour in the future.
In assessing the term of the order, I take account that the existing VRO has been in place since 25 March 2022. I consider that a term of 14 months from the delivery of these reasons is appropriate to allow sufficient time for the parties to substantially put this matter behind them and to resolve (hopefully) Mr Allegretta's claim in relation to his boat seat covers.
As to the restrictions to be imposed, pursuant to s 36(1) of the Act, I may impose restrictions that I consider appropriate to prevent Mr Allegretta from behaving in a manner that could reasonably be expected to be intimidating or offensive to Ms Farrell and that would in fact intimidate or offend her. I consider the following restrictions are appropriate:
Except as set out in part B, Mr Allegretta must not:
(a)communicate, or attempt to communicate, with Ms Farrell by any means whatsoever, including SMS or text messages or any other electronic means;
(b)behave in an intimidatory or offensive manner towards Ms Farrell;
(c)harass Ms Farrell by any electronic means, including using the internet and any social network application, for example Facebook, to depict her, or refer to her in an offensive manner;
(d)enter or remain upon premises where Ms Farrell lives or works;
(e)approach within three (3) metres of Ms Farrell;
(f)monitor the movement or communications of Ms Farrell; and
(g)cause or encourage any other person to engage in the conduct referred to in the above paragraphs.
Part B
Mr Allegretta will not breach the orders if he:
(a)communicates with Ms Farrell through an Australian legal practitioner authorised to practice law in Western Australia;
(b)instructs a process server or bailiff, or other person who regularly carries out such activities, to serve any legal process on Ms Farrell;
(c)participates in or attends court events in proceedings in which he and Ms Farrell are parties or witnesses, including by complying with any order or direction of a court in such proceedings; and
(d)sends a written communication to Ms Farrell in respect of civil proceedings between them, provided that such communication is not intimidatory or offensive.
I have not included certain aspects of the order that was in place previously. In particular, the previous order provided that Mr Allegretta must not cause, or attempt to cause, damage to any property in Ms Farrell's possession. However, given Ms Farrell no longer lives next door to Mr Allegretta, I consider there is little prospect of him now doing so, given that the evidence of this occurring before arose in respect of the Farrells' neighbouring garden.
For these reasons I order that:
1.The appeal be allowed.
2.The violence restraining order made 4 July 2022 be set aside.
3.There be a misconduct restraining order for a period of 14 months in the terms set out at [77].
In relation to costs, both parties represented themselves on the appeal. Also, while I have allowed the appeal, I have not accepted the majority of the grounds put forward by Mr Allegretta. I therefore consider the appropriate costs outcome is that there is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
21 DECEMBER 2022