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…

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.

Continue reading Allegretta v Farrell

Details

AGLC: Allegretta v Farrell [2022] WADC 114
Case: [2022] WADC 114
Decision Date: 21 DECEMBER 2022

CaseChat Overview and Summary

In the case of Allegretta v Farrell, the appellant appealed a decision made by a magistrate to issue a final violence restraining order against him. The order was intended to protect the respondent from further abuse. The appeal was heard in the Queensland District Court. The appellant contested the magistrate's determination, arguing that there was not a sufficient factual basis to warrant the issuance of such an order. Additionally, the appellant submitted that the appropriate course of action would have been to issue a misconduct restraining order instead of a violence restraining order.

The court was tasked with determining whether there was a sufficient factual basis for the magistrate to issue a final violence restraining order against the appellant. The court also needed to decide whether, given the circumstances, a misconduct restraining order would have been more appropriate. The court considered the evidence presented at the original hearing, including the nature and extent of the abuse suffered by the respondent, and the appellant's conduct leading up to the issuance of the restraining order.

The court found that the magistrate had a sufficient factual basis to issue the final violence restraining order. The evidence presented demonstrated a pattern of abusive and threatening behaviour by the appellant towards the respondent. The court held that the magistrate's decision to issue a final violence restraining order was appropriate and should be upheld. The court further determined that a misconduct restraining order would not have adequately protected the respondent from the appellant's violent conduct. Consequently, the appeal was dismissed.

The court confirmed the final violence restraining order issued by the magistrate. The appellant was required to adhere to the terms of the order, which included refraining from any form of contact with the respondent and staying away from her residence and place of work. The appellant was also prohibited from possessing or using any form of electronic communication to contact the respondent.

Orders