Colleoni-Vanotti v Sirna - [2001] WASCA 184

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COLLEONI-VANOTTI -v- SIRNA

CORAM: PIDGEON AUJ

HEARD: 23 APRIL 2001

DELIVERED : 23 APRIL 2001

FILE NO/S: SJA 1242 of 2000

BETWEEN: PAUL WILLIAM COLLEONI-VANOTTI
Appellant
AND
SARINA SIRNA
Respondent

Catchwords:

Appeal from Court of Petty Sessions - Restraining orders - Whether sufficient evidence to support a restraining order - Turns on own facts

Legislation:

Restraining Orders Act 1997, s 34

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Respondent: Mr P T Arns

Solicitors:

Appellant: In person
Respondent: Arns & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

PIDGEON AUJ : On 30 November 2000 his Worship Dr M S King SM, made a restraining order against the appellant under section 34 of the Restraining Orders Act 1997. The facts found by his Worship related to three incidents. The first was an incident that was alleged to have occurred on Friday, 27 April 2000, being the first incident in the summons issued by the respondent.
His Worship's finding was that it was an incident that occurred at a hearing in the Small Claims Tribunal where it was said that the appellant and the respondent were present in the hearing room after others had left. The appellant pointed his finger at the respondent, who was the complainant, and said, "You are in very, very serious trouble. If I was you, I would be very careful." His Worship found that this incident took place.
The next incident, which his Worship was satisfied took place, occurred on 25 September 2000, being the other matter specifically referred to in the summons issued by the respondent as complainant. The respondent's evidence was that the appellant came to where she was working, the premises of an association, and the appellant demanded his banner and I understand that the banner was there. The respondent said that she would give the items to the lawyer and that they could be collected from the lawyer.
The appellant said that if the matter was not completed in a few days he would have the respondent arrested for theft and it was also claimed that when he was leaving the premises he said to the respondent, "If we can't settle this in the proper way, then we can settle it in the Sicilian way." There was other evidence to show words to that effect were used and his Worship so found.
There was a third incident that was not mentioned in the respondent's complaint. It was alleged to have occurred after the summons for the restraining order issued and after it was served. It occurred when the appellant was serving a writ for defamation which he had issued against the respondent. He went to her place of work to serve it. There was evidence as to concern by other persons present at the place of employment when the appellant served the writ. The thrust of the complaint before his Worship in respect of this matter was that, after it was served, the appellant came back to the premises and started banging on the door. There was other evidence that the appellant rattled the door. There was some reference to hammering and banging on the door and his Worship found this took place. His Worship then said:
"All these incidents have occurred over a number of months in the context of ongoing civil litigation between the parties and the recent issue of defamation proceedings in the Supreme Court. It would appear that there is ongoing ill-will between the parties and that being the case, I consider, given the respondent's action and I have found on the evidence, that there is a likelihood that unless restrained those actions could continue. I am therefore satisfied that section 34 subsection (a) of the Restraining Orders Act has been satisfied."
The appellant obtained leave to appeal that decision on the following ground:
"The learned Magistrate erred in making a misconduct restraining order against the applicant in that there was no evidence, or alternatively insufficient evidence of any behaviour by him that had caused a breach of the peace in the past or was likely to cause a breach of the peace in the future or that he behaved in an offensive or intimidating manner towards the complainant, nor that he had caused damage to any property owned by the complainant."
That is the ground that is before me and the ground that I must judge. The appellant at the commencement of today's hearing raised a number of matters which he said were amongst the main matters. One of the matters raised was that counsel for the respondent at the hearing before Dr King told his Worship that there were police officers in the court who would not be witnesses and who would have no interest in the matter. The appellant was cross‑examined on the basis that he had come to this state as a protected witness. He said that he had no criminal convictions. He claims that the inference was that he was connected with some criminal activities to get himself in the position of being a protected witness. I am not certain if I would ever make that inference. The general nature of this submission, is that those matters were prejudicial matters.
Leave has not been granted to argue that matter before me and it is not a matter before me, nor would it be a matter that I would make inquiries in to see if I would go further and examine whether or not leave ought to be granted because I do not consider that there would be any arguable case that that would affect his Worship's decision. If it could be said to be prejudicial, I do not consider that there would be an arguable case that his Worship would allow that to affect his decision. It was said that the complainant ought to have called the police as witnesses by reason of there having been mentioned in the way I said, but there could be no basis that I see where that could be done because those police did not witness the critical incidents the subject of the complaint.
The next matter referred to before the ground before me was argued was that there would be prejudice in dealing with the third incident, which was not in the complaint and was not raised in the grounds of appeal. I would see that the third incident would play a very minor part. If it stood alone it would not, in my view, be a ground to make a restraining order. At the most it would be disorderly behaviour at the premises.
I have not heard counsel for the complainant on this point, but I do not think there was really evidence that people were upset by the actual rattling of the door. I think what upset the whole staff was serving a writ at the place of business and that would be disturbing, not possibly unlawful, but people would be concerned if a person came in, having regard to what passed between the appellant and respondent, served the writ and said what it was. The employers would not like it. That would be upsetting. But the final rattling of the door, while it might be upsetting, I do not consider would of itself come into intimidation. If it were found to have occurred it would be no more than being disorderly. So I would see this third incident as playing very little part and in my judgment would play no part. The important matters for me to examine are the first two incidents.
I must look at the actual grounds before me to judge them. The grounds claim that there was no evidence or alternatively insufficient evidence to justify the making of an order under section 34. The first matter is that there was evidence to prove the facts that his Worship found, the facts that I have outlined. The complainant gave evidence and there was a person who was present who gave evidence. In particular there was the corroborating evidence about the words I have used of having a matter "settled and dealt with in the Sicilian manner".
There was evidence that the words were used and the appellant today is not seeking to set those findings aside. As the appellant himself recognises, it would be very difficult for an Appeal Judge to set aside findings of fact of that type when witnesses have testified to it. It could not be said that his Worship has misused his position as the Judge of facts.
The important question that arises is whether those incidents are sufficient to ground a restraining order. The first incident of waving a finger in an intimidating manner and saying what was alleged to have been said, that "You would be in trouble" - again, if that stood alone, I would have had grave doubts and I think his Worship might have had grave doubts. It may be arguable it may be intimidating, but I could see a very strong argument that that would not be sufficient.
But it did not stand alone. We have here the next finding as to the following words being used, "If we can't settle this in the proper way, then we can settle it in the Sicilian way."
The evidence before his Worship was that that conveyed the connotations of the Mafia and I consider generally is that that does of itself indicate a threat.
Subparagraph (a) refers to behaving in a manner that can reasonably be expected to be intimidating or offensive or would in fact offend the applicant or behave in a manner likely to lead to a breach of the peace. The question is whether those words come within that section.
My view is that having regard to the whole of the evidence and having regard to the first incident that occurred and what was said, that when one weighs that up, then one weighs the evidence of those words that were said, together with the general background of other matters to which I have not referred. It is my judgment that it was open to his Worship to reach the view that the combined behaviour did come within the section and I consider it was open to him to say in that paragraph that I read out about ongoing ill‑will, that there is a likelihood that the actions would continue and I would see that they can in that sense be expected to be intimidating or offensive to the respondent within the meaning of subsection (a). I consider it was open to his Worship to come to that view and for those reasons I would dismiss the appeal.