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…

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 Hastings v Cassells

Details

AGLC: Hastings v Cassells [2025] WADC 49
Case: [2025] WADC 49
Decision Date: 21 AUGUST 2025

CaseChat Overview and Summary

The case of Hastings v Cassells involved a dispute concerning a violence restraining order. The parties involved were the applicant, Hastings, and the respondent, Cassells. The applicant sought to have the restraining order set aside, arguing that there had been errors in the findings of fact or law by the lower court. The matter was heard in the Supreme Court of Victoria. The primary concern of the court was to determine whether the errors alleged by the applicant were such that they justified setting aside the restraining order. The court had to examine the original proceedings to ascertain whether there were indeed errors of fact or law that materially affected the outcome.

The legal issues that the court needed to address were whether there were any factual errors made by the lower court and whether any of those errors amounted to a legal error. The court had to consider the nature of the errors alleged and whether they were significant enough to warrant the setting aside of the restraining order. Additionally, the court needed to determine whether the alleged errors were so fundamental that they rendered the decision unjust or if they were minor and did not affect the overall fairness of the decision. The applicant argued that the lower court had failed to properly consider certain evidence and had misinterpreted the law, leading to an unjust outcome.

In delivering its judgment, the court carefully reviewed the evidence and the reasoning of the lower court. The court found that while there were some errors in the findings of fact, they were not significant enough to affect the overall outcome. The court also found that the lower court had correctly applied the relevant legal principles. Consequently, the court concluded that the errors did not amount to a miscarriage of justice. The application to set aside the restraining order was dismissed, and the restraining order remained in place. The court's decision was based on the principle that errors, even if present, must be of a substantial nature to warrant the setting aside of a court order. In this case, the errors were not of such a magnitude to justify such a remedy.

Orders