Hastings v Cassells - [2025] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HASTINGS -v- CASSELLS [2025] WADC 49
CORAM:   GILLAN DCJ
HEARD:   5 JUNE 2025
DELIVERED          :   21 AUGUST 2025
FILE NO/S:   APP 7 of 2025
BETWEEN:   MARK WARREN HASTINGS
Appellant
AND
ELIZABETH ALICE CASSELLS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MILLINGTON
File Number            :   MC/CIV/MID/RO/556/2024

Catchwords:

Violence restraining order - Whether errors of fact or law - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Kioa v West (1985) 159 CLR 550
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Wise v Keilo Jane Wise as executrix of the estate of Audrey Vera Wise [2025] WASCA 98

GILLAN DCJ:

These are my reasons for dismissing an appeal from the decision of the learned Magistrate Millington made 7 January 2025 to make a violence restraining order (VRO) against the appellant (Mr Hastings) to protect the respondent (Ms Cassells).

Background against which the application for the VRO was made

It is common ground that Ms Cassells and Mr Hastings are each associated with properties on Swan Street, Henley Brook.
Swan Street is a dead‑end road which runs off West Swan Road and ends in a cul‑de‑sac. Ms Cassels and her husband, through a company, operate a dog daycare business, Wookie Dogs, on a property on the west side of Swan Street (the Cassells' property). The driveway access to the Cassells' property is from the cul‑de‑sac. The Cassells' property is either owned by a family member or a corporate entity associated with a family member but nothing turns on that.
The Cassells' property is not zoned for residential and does not have a house on it. It does have on it a number of shipping containers which are variously fitted out to provide office space, airconditioned kennel space for dogs who are attending Wookie Dogs daycare and for other business purposes. There are also fenced off areas in which the dogs can run around and socialise with each other.
Mr Hastings' mother owns property on Swan Street between 600 m and 800 m away from the Cassells' property and closer to West Swan Road. Mr Hastings' mother does not live at her property, but Mr Hastings visits his mother's property regularly. Mr Hastings accepts that he does not have to travel to and turn around at the cul‑de‑sac in order to either access or leave his mother's property.
There is a road reserve at the cul‑de‑sac end of Swan Street. The road reserve is to the west between Swan Street and current eastern end of Henley Road adjacent to the southern edge the Cassells' property. The road reserve[1] passes close to Henley Brook. Henley Brook may, depending on how much rain there has been, flood onto the rear of the Cassells' property.
[1] Variously referred to in the Magistrates Court by Mr Hastings as Henley Road and his Honour as, inter alia, the lane way or road reserve.
The proximity of Henley Brook, the possibility of regular flooding from the brook together with the proximity of the nearby Swan River means that that the Cassells' property (like other properties on Swan Street) is unlikely to be suitable for further development and it is unlikely that the road reserve will be developed into a bitumen road suitable for vehicle access.
Mr Hastings' interest in the area of Swan Street including the road reserve, his various attendances at the cul‑de‑sac at the end of Swan Street and what actions he took when he did attend at the cul‑de‑sac underlie the application for the VRO and was the subject of evidence at the final VRO hearing. I will come back to the findings made by the learned Magistrate in due course.

Appeal to the District Court

The appeal is brought pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) which provides that an appeal from a judgment in a civil case before the Magistrates Court lies to the District Court.
Section 40 also provides by s 40(3), unless leave is given, appeals must be commenced within 21 days after the date of judgment, by s 40(4A) the appeal must be conducted in accordance with the rules of the District Court and that the District Court must decide the appeal on, by s 40(4)(a) the material and evidence that were before the Magistrates Court, by s 40(4)(b) any other evidence that it gives leave to be admitted. Further, by s 40(5) leave may only be given under s 40(4)(b) in exceptional circumstances.
In considering the appeal I must give consideration to s 64 of the Restraining Orders Act 1997 (WA) (RO Act).
At the hearing of the appeal, both parties represented themselves. Quite understandably, the appellant did not have an appreciation of the nature of the appeal and had filed substantial documentation that, for the most part, invited reagitation of the evidence before his Honour.
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 on the evidence. In an appeal by way of a rehearing it is necessary for Mr Hastings to demonstrate error by his Honour. This error must be a legal, factual or discretionary error.
Part 7 of the MCCPA also applies to the appeal. Pursuant to s 43(7) of the MCCPA, I may:
(a)confirm, vary or set aside all or a part of the lower court's judgment; and
(b)give any judgment and make any order that the Magistrates Court could have given or made.
Before addressing Mr Hastings' grounds of appeal, it is useful to first identify the relevant statutory provisions, a brief summary of the procedural history and the key findings made by his Honour.

Relevant statutory provisions

Relevantly s 11A of the RO Act provides that a court has a discretion to make a VRO if it is satisfied of one or both of the threshold criteria set out in s 11A(a) and s 11A(b) of the RO Act. The threshold criteria are 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 court must also be further satisfied that making a VRO is appropriate in the circumstances.
The phrase 'personal violence' is defined broadly in s 6 of the RO Act. 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) of the RO Act.
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 RO Act.

Brief background of procedural history

Prior to commencing her application for a VRO, at the suggestion of the police, Ms Cassels first bought an application for a misconduct restraining order the underlying criteria for which differ to a VRO. That application came on for a mention on 20 May 2024[2] at which time Ms Cassels was represented by a community legal service. Mr Hastings was present at that hearing. The application was adjourned without an interim order being made. Something occurred later in the day on 20 May 2024 which I will come back to.
[2] ts 8 (Magistrates Court, 21 May 2024); Matter Book (MB) page131.
On legal advice, Ms Cassells' application for a VRO was filed on 20 May 2024 and an interim VRO hearing was held before Magistrate MacLean on 21 May 2024. On 21 May 2024 Magistrate MacLean described Mr Hastings' behaviour during the earlier hearing on 20 May 2024 as being 'very dismissive and disrespectful to [Ms Cassells]. Called her a ''dog lady'' and tried to pretend that was just a description rather than an implicit insult'. On the basis of the affidavit material Magistrate MacLean granted an interim VRO and the application for misconduct restraining order was withdrawn on the basis that any magistrate hearing the application for final orders on the VRO application had the discretion to make a misconduct restraining order if it were appropriate to do so.
Western Australian Police encountered difficulties in effecting personal service of the interim VRO on Mr Hastings and, on a police application, an order for substituted service by SMS was made by Magistrate Millington on 29 July 2024.
Personal service was eventually effected either, as reflected in the Magistrates Court's file, on 29 July 2024, as admitted by Mr Hastings by August 2024 but, at the latest, by September 2024.[3] The application for a VRO came on for final hearing before Magistrate Millington on 7 January 2025. At that hearing Mr Hastings represented himself.
[3] ts 120 (Magistrates Court, 7 January 2025); MB page 277.
At the hearing on 7 January 2025 Magistrate Millington made final orders imposing the VRO.
Mr Hastings had 21 days after the date of judgment in which to commence his appeal. On my calculation, the last day to appeal was 29 January 2025. Mr Hastings did not file his notice of appeal until 27 February 2025 and so his appeal was 28 days out of time. One of the matters I must consider is whether Mr Hastings should have leave to bring the appeal.
Mr Hastings bought an application dated 1 April 2025 for leave to rely on additional evidence. That application was heard and dismissed by his Honour Ritter DCJ on 29 April 2025.

Key Findings made by his Honour Magistrate Millington

The key findings, summarised, are that:
1.As the parties are not in a family relationship, his Honour would need to consider s 11A and s 12 of the RO Act.
2.His Honour also needed to be mindful that restraining orders should not be made against people lightly, firstly, because of the restraints a VRO puts onto the person restrained and, secondly, because the VRO depicts that the person protected needs protecting from the person restrained.
3.His Honour identified that to grant a VRO he had to be satisfied that there had been an act of personal violence as defined in the RO Act. That definition included, relevantly, acts of assaulting or causing personal injury to a person. His Honour found that there had been no physical assault or personal injury to Ms Cassells.
4.His Honour identified that any basis for making an order lie in an allegation of stalking and adopted the definition of stalking in s 338(d) of the Criminal Code. He, relevantly, identified that definition extended to intimidating and pursuing. In relation to pursuing a person, the definition included repeatedly communicating with the person, whether directly or indirectly, and whether, in words or otherwise, repeatedly following the person, repeatedly causing the person to receive unsolicited items, watching or besetting the place where the person lives or works or happens to be, or approaching such a place. He identified that 'watch' and 'beset' have their normal definitions.
5.His Honour's role was to consider the evidence before the court in order to determine whether the behaviour fell within those relevant definitions. He set out the respective positions of each of Ms Cassells and Mr Hastings.
6.Mr Cassells' and Ms Cassells' evidence was that more recently Mr Hastings had on many occasions driven to and parked at the cul‑de‑sac on Swan Street and while there had been taking photographs of the Cassells' property which included them.
7.His Honour referred to Mr Hastings' evidence that he had attended at the cul‑de‑sac on Swan Street but he had not taken photographs, other than from a distance away or from the road reserve and his evidence was that he was entitled to do so.
8.His Honour identified that, sitting in court, he had the benefit of watching and listening and observing people giving their evidence. His Honour found that there was more going on here than just people in a street not getting on.
9.His Honour accepted the evidence of Ms Cassells and Mr Cassells, that Mr Hastings had been repeatedly going out of his way to go to the cul‑de‑sac at the end of Swan Street, parking out the front of the Cassells' property either in front of the entry to the road reserve or on the roadside, and their evidence that Mr Hastings was taking photographs of the Cassells' property. He found there was a reasonable basis for them to believe that they were in the frame of those photographs. His Honour found, in those circumstances, that no one is entitled to stand out front of someone's property or sit outside of someone's property to take photographs of their property which photographs may include that person.
10.His Honour found that Mr Hastings was interested in the ongoing development of the road reserve that runs down the side of the Cassells' property, he did not approve of, had an interest in and was obsessed with the activities of the Wookie Dogs business.
11.In making the finding that Mr Hastings did not approve of the Wookie Dogs business his Honour relied on numerous references made by Mr Hastings in court, along with exhibits that Mr Hastings provided to the court, where Mr Hastings asserted the business was operating illegally, where Mr Hastings referred to there being no approval for the business and to the retrospective application for approval but also relied on Mr Hastings referring to Ms Cassells as the dog lady, or dog pound [sic] lady, and that Mr Hastings took any chance that he had to be derogatory towards the Wookie Dogs business.
12.His Honour accepted that Mr Hastings may have been compiling a record of Swan Street over a period of time including taking photographs especially at times when Henley Brook flooded. He also accepted that Swan Street was a public street which along with the road reserve was open to the public.
13.Nevertheless, his Honour found on the balance of probabilities Mr Hastings had been going out of his way to go to the end of Swan Street outside the Cassells' business property to take photographs of the Wookie Dogs business when there was no need for him to do so.
14.His Honour found and placed weight on the fact that on the same day and after the misconduct restraining order was adjourned[4] Mr Hastings had driven to the end of the cul‑de‑sac on Swan Street for the purpose of inflaming the situation. He found that action was consistent with someone who will not listen to orders and an example of how Mr Hastings would act if he is not restrained.
15.With respect to a video that Mr Hastings had introduced into evidence, which showed other people not being happy with Mr Hastings taking photographs of them and their property, his Honour found this gave the court some insight into the type of behaviour that was going on in the street.
16.His Honour was satisfied, on the evidence and on the balance of probabilities, that Mr Hastings taking photographs of the Cassells' property and the Wookie Dogs business which photographs may capture Ms Cassells in the photographs amounted to an act of personal violence. That behaviour amounted to watching and approaching the Cassells' property when there was no need for it.

[4] On 20 May 2024.

Grounds of appeal

Mr Hastings' Notice of Appeal runs to some 60 pages in length, with 24 grounds of appeal which are further broken down into sub‑grounds of appeal and, what I have taken to be, detailed references to the evidence and comment in the nature of written submissions in support of those grounds. In addition, Mr Hastings filed a document dated 27 May 2025 entitled Grounds for Appeal - Submission 2 which is five pages long and contains an additional four grounds of appeal which are consecutively numbered following on from those in the Grounds of Appeal.
It is unnecessary for me to reproduce the grounds in their entirety. The grounds can be grouped into the following categories:
1.Grounds 1, 2, 3, 4, 5, 10, 12, 14, 15, 20, 21, 25 and 26 ‑ assert error by reference to various attacks on the credibility and reliability of Mr and Ms Cassells' evidence, the lack of independent supporting evidence, a refusal to accept Mr Hastings' evidence and the attribution of sinister motive or obsessive behaviour to Mr Hastings.
2.Ground 6 ‑ asserts error as there was an absence of intimidation and harm to Ms Cassells.
3.Grounds 7, 8, 9, 11 and 25 ‑ assert procedural unfairness.
4.Ground 13 ‑ asserts error in not accepting Mr Hastings' evidence of historical documentation of lower Swan Street.
5.Grounds 13.6, 16 and 17 ‑ assert error in the Magistrate's reliance on the video introduced by Mr Hastings, in not properly taking into account any legitimate purpose for the use of travel to lower Swan Street, the use of the cul‑de‑sac or the taking of photographs.
6.Ground 19 ‑ asserts that no weight should have been placed on Mr Hastings having attended on the cul‑de‑sac at Swan Street after the hearing on 20 May 2024 or on alleged breach of the interim VRO.
7.Ground 22 - asserts error as to Mr Hastings' future intention.
8.Ground 23 and 28 ‑ asserts error in consideration of what amounts to watching.
9.Grounds 24 and 28 ‑ asserts failure to take into account the effect of the restraint on Mr Hastings.
Turning to those grounds.

Grounds 1, 2, 3, 4, 5, 10, 12, 14, 15, 20 , 21, 25 and 26 - Assert error by reference to various attacks on the credibility and reliability of Mr and Ms Cassells' evidence, the lack of independent supporting evidence, a refusal to accept Mr Hastings' evidence and the attribution of sinister motive or obsessive behaviour to Mr Hastings

As set out above, for the purpose of an appeal by way of rehearing it is necessary for Mr Hastings to establish that there has been a legal, factual or discretionary error.
Grounds of appeal which assert errors arising out of findings on the basis of the assessment of the credibility of witnesses, the independence of a witness and how an absence of independence affects the credibility of a witness, the absence of supporting evidence, for instance, of any photographs taken by Mr Hastings, the motivation of any witness whether Mr and Ms Cassells or Mr Hastings are all grounds which assert an error of fact.
Recently the Court of Appeal discussed the approach to be taken by appellate courts when there are allegations of errors of fact in Wise v Keilo Jane Wise as executrix of the estate of Audrey Vera Wise:[5]
[5] Wise v Keilo Jane Wise as executrix of the estate of Audrey Vera Wise [2025] WASCA 98 [18].
18The remaining grounds of appeal allege errors of fact. The approach to be taken by an appellate court in respect of such allegations has been mentioned a number of times recently in this Court. The principles were summarised in Sampey v Doherty. The court said that the proper approach to be taken on appeal involving allegations of factual errors made by the trial judge was as follows:
(a)An appellant who challenges a primary judge's finding of fact must demonstrate that the finding was wrong, not merely that an alternative finding was open.
(b)The principles of appellate restraint do not apply only to credibility based findings. Appellate restraint in relation to interfering with a primary judge's findings applies when a finding is likely to have been affected by impressions the judge has formed about the credibility and reliability of a witness as a result of seeing and hearing the witness give evidence.
(c)Where an assessment of the reliability of a witness involves the kind of issues and the approach to fact finding that apply to the assessment of the credibility of a witness, an appellate court will not interfere with a primary judge's finding of fact, unless the finding is demonstrated to be wrong:
(i)by reference to incontrovertible facts or uncontested testimony;
(ii)because the finding is glaringly improbable or contrary to compelling inferences; or
(iii)because the primary judge failed to use, or has palpably misused, his or her advantage as the primary judge.
(d)The nature and extent of a primary judge's advantage over an appellate court informs both what must be demonstrated to establish error in the primary judge's findings and the extent of appellate restraint in relation to those findings. For example, there is a distinction between a finding based on the credibility of a witness and a finding based on inferences drawn from undisputed facts or facts as found. Accordingly, the nature of the challenged finding and the process of reasoning by which the finding was made affect what must be demonstrated in order to establish appellable error.
(e)The principle of appellate restraint is derived from the 'natural limitations' of the appellate process and the degree of 'comparative advantage' or 'relative advantage' possessed by a primary judge as a result of the primary judge having seen and heard the witnesses. Those advantages have been described as many and varied and may vary from case to case.
(f)Where a primary judge's finding concerns an issue involving impression or judgment, the primary judge's 'comparative advantage' or 'relative advantage' in making that finding should be given 'proper weight'.

These grounds of appeal and the submissions contained in them while detailed essentially rely on a re agitation of the issues before his Honour. They do not establish that his Honour's findings of fact were wrong:
(a)by reference to incontrovertible facts or uncontested testimony;
(b)because the findings were glaringly improbable or contrary to compelling inferences; or
(c)because the primary judge failed to use, or has palpably misused, his advantage as the primary judge.
I have set out above the principal findings his Honour made but, relevant to these grounds, there was also evidence before his Honour which he did not expressly reject but he either did not rely upon or placed limited weight on for the purpose of granting the VRO. That evidence included:
1.Evidence of Ms Cassells to the effect that on a number of occasions, perhaps as many as a dozen times, in the evening as she left her business in her car, Mr Hastings had followed her up the road to the T‑junction at the intersection of Swan Street and West Swan Road, had turned to follow her and on a couple of occasions he had continued to follow her towards her home. In cross‑examination, Ms Cassells conceded that given that there was only one way out of Swan Street it was possible Mr Hastings was simply travelling in the same direction as she was.
2.Ms Cassells' evidence that she had been told by her husband that he had also been followed by Mr Hastings. Mr Cassells did not give evidence to that effect at the trial.
3.Ms Cassells' evidence that there was an occasion when she was standing at the front of her business premises talking to another woman and she saw Mr Hastings taking photographs. She had shouted out mentioning privacy and in return had been verbally abused by Mr Hastings from a distance away. During the trial, Ms Cassells conceded that the shouted exchange between them occurred only after she had first shouted at Mr Hastings and Mr Hastings eventually conceded that he had been there, had been taking a photograph or photographs and there had been a loud verbal exchange. I will say a little more about this below.
As part of his assessment of each witness' evidence, his Honour naturally had to determine if each witness was telling the truth or a lie if they were mistaken or inconsistent about some matters and if, after the witness' evidence was tested by way of cross‑examination, their evidence could be accepted or should be rejected on a point.
As I said above, his Honour clearly did not rely on every part of Ms Cassells' evidence to found his decision. In essence, he found there was stalking in its extended sense, on the evidence that Mr Hastings had attended at the cul‑de‑sac on Swan Street on a number of occasions, parked in the vicinity and had taken photographs of the Cassells' property in which both Mr and Ms Cassells were in the frame.
Other than in one respect, his Honour did not rely on the finding that on an occasion Mr Hastings had verbally abused Ms Cassells. He did not rely on a finding that there were occasions when Mr Hastings had deliberately followed Ms Cassells' car when she left her business in the evening.
Any trier of fact is entitled to accept the whole of a witness' evidence, to reject the whole of a witness' evidence or to accept some of a witness' evidence. A great many things might impact on an assessment of a witness' credibility, for example, inconsistencies in a witness' evidence or prior inconsistent statements, inconsistencies between witnesses, embellishments of evidence but whether those inconsistencies in fact impact on the credit is a matter for the trier of fact. Further, even evidence which is accepted may be given little weight in the decision which is reached.
His Honour was entitled to put aside some of Ms Cassells' and Mr Cassells' evidence. Once he had done that, the question for his Honour's consideration was whether Ms Cassells had, on the evidence he did accept, satisfied him that there had been an act of personal violence and that a VRO should be made.
In this case there was evidence from the following witnesses which his Honour was entitled to accept to the effect that:
Ms Cassells
1.She and her husband operated the Wookie Dogs business. Her husband would be at the business in the morning and again in the evenings while she was there, on her own, for most of the day.
2.Mr Hastings had originally been taking photographs of the street with which she had no issue.
3.There was an escalation of the taking of photographs which she described as eventually becoming constant.
4.It became apparent to her that Mr Hastings was parking out the front of her property and taking photographs of it multiple times a week.
5.Ms Cassells knew he was taking photographs because he always had his phone and the transcript records that she demonstrated the use of a phone to take a photograph. She said she was around the property, towards the front of the property when he was taking photographs but she could not say 100% that the photographs were directly taken of her.
6.By reference to the Exhibit 1 photographs she indicated where Mr Hastings would park, not directly in front of her gate but to the side.
7.In cross-examination, the most regular days on which Mr Hastings came to the bottom of the cul‑de‑sac were Thursdays and Fridays and this had increased at the end of 2023 through January to March 2024 when the application was made.
8.In cross-examination, Mr Hastings parked in proximity to her gate but mostly parked in front of the gate to the road reserve. When Ms Cassells said park, this meant that Mr Hastings' vehicle would cease motion.
9.In answer to a question from his Honour, as to why she thought she was in the frame of the photograph her answer was because she is around the property when Mr Hastings was taking photographs and, on the occasion of the verbal exchange between them, she viewed him taking photographs for some time.
10.In cross-examination, she accepted that she could not be seen from the road when inside her office but in re-examination said that she was not in her office and was out and about on the property including at the front of the property for about half the day.
Mr Cassells
11.That he had seen Mr Hastings around the vicinity maybe 50 times or more and on multiple times (clarified to be maybe a dozen) parked at the front of the Cassells' property. Mr Hastings was parked about 2 m from the gate.
12.That normally Mr Hastings would be taking photographs, he would see the flash of the camera and that Mr Hastings would be pointing a phone out the window of his car directly at the property.
13.In cross-examination, the parking and taking photographs occurred during January ‑ April (of 2024), that Mr Hastings was usually there for more than a minute, a substantial amount of time. Mr Cassells saw a flash through the tinted window of the car and he saw a phone pointed at the property when Mr Cassells was exiting.
Mr Hastings
14.Mr Hastings has been interested in the area since the 1980s and he had photographed the area from about 2016. He had many photographs of the land where Mr and Ms Cassells operated the business in particular when the brook was flooding. Mr Hastings produced photographs of the area on a USB to the court and a video which he said showed his continued interest in the street.
15.Mr Hastings denied taking photographs of or being interested in the people on the land, he asserted that he did not photograph people but only photographed changes in the landscape and did not monitor day to day activities. That evidence, while part of the narrative, was not accepted by his Honour.
16.In cross-examination Mr Hastings said that he had an interest in every block on the street and that he would track the changes, for instance in buildings and agriculture, every couple of weeks.
17.Mr Hastings admitted that he had no need to travel via the cul‑de‑sac in order to drive away from his mother's property and to go to the cul‑de‑sac was a deliberate decision. He said there had been massive changes in the other properties over the last 12 months, but he would not know what those changes were unless he went and checked.
18.Mr Hastings was interested in the development of the road reserve. The documents he produced suggested the development he favoured was a walking track.
19.He asserted that he was entitled to take photographs of another person's property and that he had never asked permission to do so.
20.He said that there were seven occasions when he stopped at the bottom the cul‑de‑sac in December 2023 to see and document what was happening with the Wookie Dogs business. This occurred after he had found out that there was an application for planning approval for the business. When there, he admitted he took extensive photographs of the property but asserted no one was present on the property when he did so.
21.He admitted that he used his mobile phone to take photographs and asserted that he had the right to do so but denied that there was anyone on the property.
22.He accepted that he had been there and parked on the day in which he exchanged words with Ms Cassells. Mr Hastings said he was there inspecting the gate at the road reserve and that was when an incident occurred. He also said he was photographing a tractor. He was there on his 'usual check'. He said that he would go to his mother's property once a week.
23.He denied invading anyone's privacy but maintained his right to take a photographic record of the street.
24.He accepted that he went to the property after the misconduct restraining order application was adjourned but said he was entitled to do so.
25.In re‑examination, he said that he is proud of his [photographic] history of the street, accepted that people had objected to him taking photographs and admitted that he did see Wookie Dogs business as having altered the street, increasing traffic.
I do not intend to address each of the grounds individually in detail. These grounds in essence complain that his Honour erred because he accepted the evidence of Mr and Ms Cassells when for various specified reasons he should have found them to be witnesses entirely lacking in credit and that he should not have acted on their evidence without corroboration.
The grounds and submissions while voluminous demonstrate no incontrovertible facts, uncontested testimony, failure to use, or palpable misuse, of his Honour's advantage in hearing the matter that would result in an error of fact about those matters.
By way of illustration, I will mention some specific grounds, but they are not intended to be an exhaustive list:
1.It was submitted that his Honour made a material and serious error in relying on the evidence of Ms Cassells without there being corroborating evidence in the form of other witnesses or objective evidence like surveillance or CCTV video which was, or had been, available. However, oral evidence of what a witness has seen, heard, smelt or felt is given and accepted as true in courts every day, even in cases which require the criminal standard of proof, without independent witnesses or objective evidence confirming that evidence. Further, these grounds fail to take into account that to some extent Mr and Ms Cassells' evidence on the matters that his Honour did accept corroborated each other. For instance, their evidence about Mr Hastings often being parked at the end of the street and that he was taking photographs.
2.In other respects, their evidence was not really in issue, for instance, Mr Hastings admitted multiple attendances at the cul‑de‑sac in December 2023 and that he had taken many photographs on those occasions.
3.It was submitted that Ms Cassells told material and deliberate falsehoods in her affidavit in support of the application for the interim VRO and before the court on the occasion of 20 May 2024, inter alia, about a verbal assault by Mr Hastings towards her and that she had been followed by him. For the reasons given above at [35], his Honour did not rely on parts of this evidence as a basis for granting the final VRO but it should be noted that respect to the shouted verbal exchange Mr Hastings' evidence was largely consistent with Ms Cassells' evidence. There are no incontrovertible facts, uncontested testimony, failure to use, or palpable misuse, of his Honour's advantage in hearing Ms Cassells' evidence which would demonstrate that Ms Cassells was telling material and deliberate falsehoods about any matters that his Honour did accept.
4.It was submitted that there were inconsistencies in both Ms Cassells' and Mr Cassells' evidence as to what constituted parking at the front of Ms Cassells' business property and that their evidence about taking photographs was insufficient to have been accepted. Those submissions split hairs. His Honour was entitled to rely on Mr and Ms Cassells' evidence about the number of times they had seem Mr Hastings at the end of the cul‑de‑sac and to draw the inference, based on common life experience, that if during those attendances Mr Hastings was pointing a mobile phone towards Mr or Ms Cassells in a way akin to taking a photograph, that he was taking a photograph and if they could see him doing that then they may be in the frame. This is particularly so given Mr Hastings admitted to taking multiple photographs of the Cassells' property. Given the evidence which his Honour did have, there are no incontrovertible facts, uncontested testimony, failure to use, or palpable misuse, of his Honour's advantage in hearing the matter that would result in an error of fact about those matters.
5.It is submitted that Mr Cassells was not independent of Ms Cassells. There is no requirement that witnesses be independent of each other. It is simply a matter to be weighed in the balance. In any case, it was not put to them that they had colluded in their evidence and it is evident they did not, because they disagreed on whether Mr Cassells had told his wife he had been followed by Mr Hastings in the car.
6.It is submitted that his Honour was in error in not finding that the operation of the Wookie Dogs dog care business without approval, the application for retrospective planning approval for the business and the development of Henley Street (by which Mr Hastings refers to his proposal for the development of the road reserve between Henley Street and Swan Street) were at issue in the application for a VRO. It was put in cross‑examination to each of Mr and Ms Cassells that they wanted the VRO because they were either opposed to the development of the road reserve or that they were concerned about their own use of the land without approval and their application for planning approval. They each denied they were motivated by those considerations. This was an issue about which the questions were asked and answered. There are no incontrovertible facts, uncontested testimony, failure to use, or palpable misuse, of his Honour's advantage in hearing the matter that would result in an error of fact about those matters.
7.Further, Mr Hastings seeks to rely, in ground 25, on a failure to admit into evidence planning documents which, he believes, impact on Mr and Ms Cassells' evidence about those matters and to independently establish that any view they had of the front of the property must have been obscured. Mr Hastings' application to rely on those documents was dismissed by Ritter DCJ but I do note that even if those documents contain the material which Mr Hasting particularised in ground 25 that information would not, in my view, amount to an incontrovertible fact which would call into question their motivations. Their motivations are subjective and comment in third party documents can do no more than express a third party's view. Further, while the photographs of the front fence and the driveway of the Cassells property show trees they also show a clear view along the driveway and a view through those trees.
8.With respect to the finding that the Wookie Dogs business was an issue that Mr Hastings was deeply interested in, indeed obsessed with, it was submitted that was an error of fact. During the hearing before his Honour Mr Hastings, concentrated in his case on the Wookie Dogs business operating without planning approval, calling it an illegal criminal enterprise, asserted a conflict between the Cassells planning application and his proposal for the road reserve and, although he had never met them, admitted he had assumed that they were hostile to him.
9.Mr Hastings also made many disrespectful references to the business as the 'dog pound', to Ms Cassells as the 'dog pound lady'. He accepted that he had a loud interaction consistent with that described by Ms Cassells in her evidence where he had been taking photographs and during which he heard her refer to 'people's privacy', but, in his evidence about this he was disrespectful to Ms Cassells when he described her voice as a screech, a banshee screech, the sound of someone 'in pain from afar' and 'really shattered glass'. Those matters, including Mr Hastings general attitude the Cassells and Ms Cassells in particular, informed and supported his Honour's finding that Mr Hastings was motivated to attend at the end of the cul-de-sac for the purpose of taking photographs of the Cassells' property and their use of the property in the Wookie Dogs business.
10.Further, it is clear from the grounds of appeal and the submissions contained in them, along with his oral submissions that Mr Hastings remained concentrated on the planning issues at the hearing of the appeal. In those submissions and at the hearing of the appeal, Mr Hastings continued in his discourtesy towards Ms Cassells by reference to her as the dog pound lady, referred to the dog pound business and spoke of her in unflattering terms. There are no incontrovertible facts, uncontested testimony, failure to use, or palpable misuse, of his Honour's advantage in hearing the matter that would result in an error of fact about those matters.

Ground 6 - Assert error as there was an absence of intimidation and harm to Ms Cassells

Ms Cassells said in her evidence that when Mr Hastings was only taking the occasional photograph she had no difficulty with him doing so. Her evidence was that changed when his behaviour escalated. Specifically, she said for most of the day she was at the property on her own and it was very uncomfortable knowing someone was out the front taking photographs of her property. She said that the property was an open property.
It was open to his Honour to find that Ms Cassells was discomforted by Mr Hastings' actions and sufficiently so to apply for a restraining order.
Further, to the extent that this alleged error is said to be one of law, his Honour followed the RO Act which provides that stalking includes stalking within the meaning in the Criminal Code.
That definition of stalking extends to pursuing which in term includes watching or besetting the place where the person lives or works or happens to be, or approaches such a place. He identified that 'watch' and 'beset' have their normal definitions.
Unlike for a misconduct restraining order, there was no requirement that intimidation or that the actions of Mr Hastings be proven to be offensive. As for harm, to the extent that Mr Hastings' submission suggests that physical harm must be proven, that would be contrary to the extended definition of stalking. Further, for stalking behaviour to found the granting of a VRO the legislature can be presumed to consider that stalking is behaviour that is harmful in the broader sense of that word.

The findings made by his Honour were to the effect that Mr Hastings was watching and approaching the place of Ms Cassells' business. That can amount to stalking which is an act of personal violence in the extended definition for the purposes of the RO Act. There is no error of fact or of law in his Honour so finding.

Grounds 7, 8, 9, 11 and 25 - Assert procedural unfairness

These grounds rely on a failure to accord proper procedure to Mr Hastings.
In Kioa v West,[6] Mason J said:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject‑matter, and the rules under which the decision‑maker is acting ...
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.
[6]Kioa v West (1985) 159 CLR 550, 584 - 585.
In the present context, fairness required that his Honour approach the matter with an open mind, that Mr Hastings be apprised of the allegations against him and be given a fair and reasonable opportunity to answer those allegations in circumstances where he knew of the potential consequences to himself should his answers be rejected and the allegations accepted.
In Rankilor v Circuit Travel Pty Ltd,[7] Newnes JA said:
57It is trite law that the principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement in a particular case cannot be determined in the abstract but only in the context of the case. Thus, as Brennan J pointed out in J v Lieschke (1987) 162 CLR 447, while the principles of natural justice apply to courts:
That is not to say that the content of the principles of natural justice to be applied by a court take no account of the nature of the jurisdiction to be exercised. The nature of the proceedings, the powers to be exercised and the prescribed rules of procedure may affect the extent to which a plenary right to be heard may be qualified, even in curial proceedings. (456)
58See also, for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552 ‑ 553; Koia v West (1985) 159 CLR 550, 584 ‑ 585. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court.
59It is also important to bear in mind that while the appellant was entitled to a reasonable opportunity to present her case, the court was not required to undertake the 'impossible task' of ensuring that the appellant took the best advantage of the opportunity: see Sullivan v Dept of Transport (1978) 20 ALR 323, 343.
[7]Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57] - [59].
Section 13 of the MCCPA is relevant to these considerations. It relevantly requires that in dealing with cases and making rules of court the court is to ensure that cases are dealt with justly and that ensuring that cases are dealt with justly includes ensuring that cases are dealt with efficiently, economically and expeditiously and that the court's judicial and administrative resources are used as efficiently as possible.
In my view, none of these grounds demonstrate a failure to accord Mr Hastings procedural fairness because:
1.His Honour's attempts at the start of the hearing to resolve the matter by agreement to an undertaking is a usual practice in the Magistrates Court and an appropriate use of the court's resources especially as it was fair to Mr Hastings to give him the opportunity to resolve the matter without a final restraining order being made against him.
2.I have read carefully the whole of what his Honour had to say to Mr Hastings about the possibility of an undertaking resolving the matter. His Honour's comments, when taken as a whole, were balanced. A reading of the whole of his Honour's comment show he offered, by way of fair warning, the possibility that if the evidence that Mr Hastings was regularly attending at the premises and taking photographs was substantiated there was a risk that Mr Hastings would find himself the subject of a VRO and he would also be at risk of a costs order against him. When taken as a whole, his Honour's comments do not indicate that his Honour had, prior to hearing the evidence, prejudged the case.
3.Further, soon after discussion about an undertaking were completed and once the trial commenced, his Honour again made it clear that he would be deciding the matter on the basis of the evidence he heard that day, that earlier (when discussing an undertaking) he had simply been putting a potential outcome to Mr Hastings but that he had not come to any final decision. Finally, his Honour's comments did not have a noticeably chilling effect on Mr Hastings' approach to defending the application.
4.In respect of the assertion during his opening address that Mr Hastings was not able to develop a suggestion that the application was affected by Ms Cassells having run an 'illegal business' without planning approval and her desire to obtain retrospective approval, Mr Hastings was, in an opening address, making a legal submission before any evidence was heard and his Honour was entitled to move things along. There is no suggestion that Mr Hastings was later preventing from putting his assertion as to their motivation to Mr and Ms Cassells in cross‑examination or prevented from making the point in closing that was what had motivated the application for the VRO.
5.There is nothing in the transcript which would substantiate the suggestion that there was mocking or unwarranted interruptions on the part of his Honour. Even if a gallery guard may have reacted with amusement to Mr Hastings' closing submissions,[8] Mr Hastings was at the end of his submissions and his Honour clearly paid it no attention to the guard's reaction.
[8] ts 120.
6.With respect to the cross‑examination of Mr Hastings about the breach charge, Mr Hastings said 'I should object, but I will answer that'. He then confirmed that he had been charged with a breach of the interim VRO and was acquitted at trial because there had been no effective service of the interim VRO on Mr Hastings. There is no suggestion that his Honour relied in any way on the allegation of breach in determining to issue the final VRO against Mr Hastings, in fact, the transcript relied on by Mr Hastings at grounds 8.1.2 and 8.1.3 shows that his Honour has accepted that the alleged breach of which Mr Hastings was acquitted was of no relevance.
7.The submissions at grounds 8.2 ‑ 8.4 that his Honour was in some way biased by having, prior to the trial, made the order for substituted service of the interim VRO misconceives the everyday role of a judicial officer in case management of matters before the court. There is nothing to suggest that having made the order that his Honour was thereafter biased or that it was inappropriate for him to preside over the final hearing.
8.The submissions at grounds 9.1 ‑ 9.2 misunderstand the nature of his Honour's role. His Honour was not obligated to ask about the availability of documentary proof, to ask for additional proof of harm or to cross-examine the witnesses called in support of the application. His Honour's role was to consider whether the evidence that was led was sufficient to found the application and the exercise of the discretion to make orders for a final VRO.
9.As to the submissions relating to ground 9.3, Mr Hastings, when discussing the question of an undertaking and in his opening comments, relied on the fact that he had been taking photographs of the property over a long period of time and wanted to continue to do so. Mr Hastings' evidence before his Honour confirmed that in December he had taken a large number of photographs. In those circumstances, his Honour's intervention in what proved to be a largely uncontentious matter did not cause unfairness to Mr Hastings.
10.By ground 9.4 Mr Hastings submits there is a difference between Mr Hastings travelling to the end of the cul-de-sac where he stopped his car for a period of time and travelling to the end of the cul-de-sac, turning off his car and exiting the car and, it seem to be submitted, that his Honour made an error in his reasons by failing to distinguish between the two.
11.There is nothing in this submission. His Honour's decision to make the final VRO did not turn on whether Mr Hastings had left his car to take photographs. It turned his acceptance of the evidence of the frequency of attendance at the cul-de-sac end of the street for no purpose other than taking photographs of the Cassells property, the Wookie Dogs business and her, if she was in the frame when a photograph was taken, in circumstances in which Mr Hastings did not have a legitimate reason to be taking those numerous photographs without permission.

Ground 13 ‑ Assert error in not accepting Mr Hastings' evidence of historical documentation of lower Swan Street

It is incorrect to say that his Honour did not accept Mr Hastings' evidence that he had, historically, documented by taking photographs of lower Swan Street. His Honour expressly accepted Mr Hastings' evidence in that regard but he did not find that to be a compelling justification for Mr Hastings to continue to take photographs of Ms Cassells' property when she objected to him doing so.

Ground 13.6, 16 and 17 ‑ Assert error in the Magistrate's reliance on the video introduced by Mr Hastings, in not properly taking into account any legitimate purpose for the use of travel to lower Swan Street, the use of the cul-de-sac or the taking of photographs

His Honour was invited by Mr Hastings to watch Exhibit 5, a video saved on USB as Documenting Lower Swan Street, for the purpose of bolstering Mr Hastings' evidence that in February of 2024 Mr Hastings had told other people unconnected with Mr and Ms Cassells that he was documenting the street. On my observation of the video Mr Hastings can be heard to say to those other people that he takes photographs of everything along the street, it was part of his history and he was entitled to do so.This was the crux of Mr Hastings' position vis‑à‑vis the application for VRO.
Once Mr Hastings had introduced that evidence his Honour was entitled to use it in his determination. In this case, his Honour took nothing more from the video than that Mr Hastings had photographed other people and other property and his actions in doing so had also upset other people who were or whose property was being photographed.
In his overall consideration of the matter his Honour's observations about the video clearly played little weight compared with his acceptance of Mr and Ms Cassells' evidence. There was no error in the observation which his Honour made about the video that Mr Hastings had introduced.
It is also incorrect to say that his Honour failed to take into account any legitimate purpose of Mr Hastings travelling to the cul‑de‑sac end of Swan Street.
Mr Hastings' position, that he went to the cul‑de‑sac to take photographs as part of his personal interest in keeping a history of the area, was acknowledged by his Honour but it was also the case that his Honour found that more recently Mr Hastings was attending there as a consequence of his interest in and disapproval of the Wookie Dog daycare business which Mr Hastings considered clashed in some way with Mr Hastings' interest in the use of the road reserve.
Mr Hastings did not seek to justify his taking of photographs on the basis that he was duty bound to investigate what was happening at the business, for instance, Mr Hastings was not employed by the council or tasked with an investigative role by any authority. Mr Hastings himself led evidence that his complaints to the council and proposals with respect to the road reserve were considered by the council, although, probably not with the results Mr Hastings desired.
Further, Mr Hastings position before his Honour, and it is the case, at least on my research into the law, that there is no law that specifically prohibits him from taking photographs of private property from a public street.
That is not to the point. If, as here, the actions of Mr Hastings of attending at the cul‑de‑sac for the purpose of taking numerous photographs got to the stage of amounting stalking within the meaning of the Criminal Code or the RO Act then the law does respond either through criminal proceedings or by way of VRO preventing that behaviour continuing.

Ground 19 ‑ Asserts that no weight should have been placed on Mr Hastings having attended on the cul-de-sac at Swan Street after the hearing on 20 May 2024 or on alleged breach of the interim VRO

For reasons I have already outlined, his Honour did not put any weight on the alleged breach of the interim VRO.
With respect to having attended on the cul-de-sac on the afternoon of the 20 May 2024, after the application for a misconduct restraining order had been adjourned, his Honour clearly did not accept Mr Hastings' evidence that he had been at the cul‑de‑sac that afternoon for the sole purpose of visiting 'Tony' who grew grapes on another lot in the street but instead found that Mr Hastings went there deliberately to inflame the situation between him and the Cassells.
Given Mr Hastings' attitude of disrespect towards Ms Cassells and her business during the final hearing for the VRO, his evidence that he had assumed that the Cassells were hostile towards him, along with his ongoing insistence he wanted to continue to take photographs when he chose to do so his Honour was entitled to find that Mr Hastings had acted to inflame the matter. That finding, in turn, informed his Honour's decision to grant the VRO. There was no error of law in his Honour doing so.

Ground 22 ‑ Asserts error as to Mr Hastings' future intention

It is submitted that the learned Magistrate was in an error when he said in his reasons 'Mr Hastings has said that he's not interested in the property. He's not - wants to go down there, and he's not going to take any further photos of it. But I reject that,' At that stage his Honour was dealing with the question of whether a VRO was required or not.
In opening Mr Hastings told the learned magistrate that he had no interest in any person who was at or went to the property. He was only interested in changes in the property itself and changes to it on a 3, 6, 9 and 12‑month basis.
In his final submissions, Mr Hastings said to his Honour 'There has been in fact, if anything, a diminishment of interest, because there's no changes down that end of the street. I've got no interest'. But Mr Hastings also admitted that the Wookie Dogs business had changed the street, 'It has increased the traffic. It has altered the various characteristics' and that his interest in the property arose in the previous December when he became aware of the planning application. Further, Mr Hastings maintained, and still maintains, his entitlement to go to the property and photograph changes to it.
Even if there is something in the submission that in his reasons his Honour misunderstood Mr Hastings position that is not an error which should call his Honour's decision into question because Mr Hastings was and is still asserting his entitlement to go to the cul‑de‑sac at the bottom of Swan Street and photograph any changes to the Cassells' property and document the Wookie Dog business notwithstanding that they clearly did not want him to do so.

Ground 23 and 28 ‑ Asserts error in consideration of what amounts to watching

It is submitted that there is a difference between taking a photograph which is a 'captured visual observation' and watching which is submitted as being as defined in the Oxford English Dictionary as:
To be on the look out; to keep a person or thing in sight, so as to be aware of any movement or change' and 'To keep (a person or thing) in view in order to observe any actions, movements, or changes that may occur.
Of course, there are other relevant limbs to the dictionary definition including 'To be on the watch for opportunities to do something' and 'To be on the watch for (something expected)', which may have informed his Honour's thinking.
The submission draws a distinction without a difference. His Honour found that it was the attendances at the end of the cul‑de‑sac for the purpose of taking photographs of the property which amounted to watching of the property. That behaviour amounts to watching in its ordinary usage. There was no error.

Grounds 24 and 28 ‑ Asserts failure to take into account the effect of the restraint on Mr Hastings amounts to a punishment of him and not a restraint

This submission relies on Mr Hastings' inability to monitor and obtain a history of the flood plain of lower Swan Street for the purpose of opening up the road reserve in some form.
It is true that Mr Hastings cannot personally monitor the flood plain from Swan Street and the road reserve but that does not mean that the City of Swan, the relevant local government authority, cannot keep appropriate records nor that Mr Hastings can rely on any other publicly available information about flooding in the area to engage appropriately about access to Henley Brook and the Swan River via the road reserve and any other developmental considerations which may arise relating to Swan Street. I do note that Exhibits 6 and 7 which were tendered by Mr Hastings would tend to suggest that the City of Swan has considered his suggestion for a new Trekpath and determined not to go in that direction at this time.
His Honour did not give any reason for the extension of the final VRO to a distance of 200 m from the boundary of the Cassells' property up from 80 m in the interim VRO. At the final hearing there was some evidence for his Honour to the effect that the distance between Mr Hastings' mother's property and the Cassells property was some 650 m.
The distance of 200 m will not prevent Mr Hastings from visiting his mother's property, but it does minimise the ability of Mr Hastings to take photographs including zoom photographs of the Cassells' property. In those circumstances I would not interfere with his Honour's discretion.

Leave to appeal

As is evident, I have considered the grounds of appeal and find none of them made out.
Ms Cassells opposed the grant of leave to appeal on the basis that Mr Hastings had not produced any additional evidence to explain and support his assertion that he was too unwell to concentrate on bringing an appeal within time and the prolixity of the grounds of appeal.
I accept that these are valid concerns, but the appeal was not instituted so far out of time that additional prejudice was caused to the respondent.
I would grant leave to appeal and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MH
Associate to the Judge
20 AUGUST 2025