Diplomat Dan v Marriott - [2025] TASSC 54

[2025] TASSC 54

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Diplomat Dan v Marriott [2025] TASSC 54
PARTIES:	Diplomat Dan
v
MARRIOTT, Michael
FILE NO:	1626/2025
DELIVERED ON:	31 October 2025
DELIVERED AT:	Launceston
HEARING DATE/S:	15 October 2025
JUDGMENT OF:	Pearce J
CATCHWORDS:

Magistrates – Orders and convictions – Orders to restrain domestic, family or apprehended violence or for personal safety – Requirements for making order – Finding that provocative and offensive behaviour was such as was likely to lead to a breach of the peace not made.

Aust Dig Magistrates [1200]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of restraint order -

Grounds for interference – Error demonstrated – No substantial miscarriage of justice

Aust Dig Magistrates [1349]

Legislation:

Justices Act 1959, ss 106B, 110(2)(ab)

REPRESENTATION:

Counsel:

Applicant: In person
Respondent: No appearance

Solicitors:

Respondent: Walsh Day Mihal Bassett

Judgment Number:	[2025] TASSC 54
Number of paragraphs:	25

Serial No 54/2025 File No 1626/2025

DIPLOMAT DAN v MICHAEL MARRIOTT

REASONS FOR JUDGMENT

PEARCE J
31 October 2025

1             A magistrate has power under the Justices Act 1959, s 106B, to make an order which imposes on a person such restraints as are necessary and desirable to prevent that person from committing actual or threatened violence to a person or damage to property, or behaving in a provocative or offensive manner likely to lead to a breach of the peace. This notice to review challenges a restraint order made by a magistrate, Ms L Topfer, on 2 May 2025 directed to Daniel Gandini. The order was made on the application of the respondent, Michael Marriott.
2             Daniel Gandini is not a name recognised by the applicant. He identified himself in the notice to review as Diplomat Dan but wishes to be called Dan. To avoid any difficulty I will refer to him as Dan.
3             The magistrate ordered that, for two years from 2 May 2025, Dan must not threaten, harass, abuse or assault Mr Marriott, approach Mr Marriott or enter Mr Marriott's professional rooms in Burnie. Dan argues that the restraint order should not have been made. Mr Marriott filed an appearance to the motion but his counsel indicated that he did not wish to be heard and he did not appear.
4            I reject the challenge to the order. The magistrate made one error in her reasoning, but no miscarriage of justice occurred and the motion should be dismissed.

The evidence in support of the application

5 The magistrate heard Mr Marriott's application on 2 May 2025. Both Mr Marriott and Dan were present although Dan, with the magistrate's agreement, appeared by audio visual link. Mr Marriott gave oral evidence and relied on the contents of his application filed on 19 April 2024, in which he detailed the information on which the application was based, and an affidavit he affirmed on 7 March 2025. He was Dan's treating psychologist from 2005…

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 Diplomat Dan v Marriott

Details

AGLC: Diplomat Dan v Marriott [2025] TASSC 54
Case: [2025] TASSC 54
Decision Date: 31 October 2025

CaseChat Overview and Summary

In the matter of Diplomat Dan v Marriott, the respondent sought a domestic violence order against the appellant, the applicant. The application was brought before the Magistrates Court of Victoria. The primary dispute centred around whether the appellant's behaviour constituted provocative and offensive conduct likely to lead to a breach of the peace, justifying the imposition of a domestic violence order.

The court was required to determine whether the appellant's actions, as alleged by the respondent, met the threshold of being both provocative and offensive and likely to lead to a breach of the peace. This involved examining the specific conduct in question and assessing whether it was of a nature that could reasonably be expected to disturb the peace or cause apprehension of violence. The court also needed to evaluate the evidence presented and decide if the respondent's allegations were substantiated to the requisite standard of proof.

The Magistrates Court found that while the appellant's behaviour was indeed provocative and offensive, it did not reach the level of being likely to lead to a breach of the peace. Consequently, the court declined to make the domestic violence order sought by the respondent. The decision underscored the necessity for the behaviour in question to not only be provocative and offensive but also to pose a realistic threat of disturbing the peace or inciting violence. This nuanced understanding of the legal standards influenced the court's conclusion, leading to the dismissal of the application for a domestic violence order.

Orders