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…

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 Colleoni-Vanotti v Sirna

Details

AGLC: Colleoni-Vanotti v Sirna [2001] WASCA 184
Case: [2001] WASCA 184
Decision Date: 23 APRIL 2001

CaseChat Overview and Summary

The case of Colleoni-Vanotti v Sirna involved an appeal from the Court of Petty Sessions, where the primary issue was the sufficiency of evidence to support a restraining order. The applicant, Colleoni-Vanotti, sought a restraining order against Sirna, which was initially granted by the lower court. The legal issues that the court had to decide were whether the evidence provided was sufficient to warrant the issuance of a restraining order and whether the order should be upheld based on the facts presented.

The court examined the evidence provided to determine whether it was sufficient to justify the restraining order. The evidence included allegations of harassment and threats made by Sirna towards Colleoni-Vanotti. The court considered the credibility and weight of the evidence, including witness statements and any other relevant factors. The court needed to decide if the evidence was compelling enough to establish a clear risk of harm or distress to the applicant, which is a necessary threshold for issuing a restraining order.

In its reasoning, the court found that the evidence did not sufficiently establish the level of risk or harm necessary to justify a restraining order. The court noted that while there were allegations of harassment and threats, the evidence did not clearly demonstrate that these actions posed an immediate or significant risk to the applicant's safety or wellbeing. As a result, the court decided to quash the restraining order granted by the lower court, finding that it was not supported by the evidence presented. The court emphasised that restraining orders should only be issued where there is clear and compelling evidence of a risk to the applicant.

Orders