Slack v Hayes - [2020] WADC 108

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   SLACK -v- HAYES [2020] WADC 108
CORAM:   LEMONIS DCJ
HEARD:   24 JANUARY & 19 MARCH 2020
DELIVERED          :   31 JULY 2020
FILE NO/S:   APP 74 of 2019
BETWEEN:   MATTHEW PHILLIP SLACK
Appellant
AND
TRUDY HAYES
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE FLYNN
File Number            :   PER/RO/CIV/3427/2019

Catchwords:

Appeal from dismissal of application for final violence restraining order - Error by learned magistrate in making findings of fact

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal allowed in part
Parties to provide further submissions directed to what orders should now be made

Representation:

Counsel:

Appellant	:	Mr M L Bennett
Respondent	:	Mr A McDonald

Solicitors:

Appellant	:	Bennett & Co
Respondent	:	Pragma Legal

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

Absolute Analogue Inc v Sundance Resources Ltd [2015] WASCA 168
Brocklehurst v Wolinski [2015] WADC 36
Woodley v Woodley [2018] WASCA 149

LEMONIS DCJ:

This appeal is brought pursuant to s 64 of the Restraining Orders Act 1997 (WA). It is from a decision of the learned magistrate declining to make a violence restraining order (VRO) in favour of the appellant, Mr Slack, against the respondent, Ms Hayes.
At the time of the hearing before the learned magistrate, Mr Slack was the chief executive officer of the Buurabalayji Thalanyji Aboriginal Corporation RNTBC (BTAC), which position he had held since March 2016. Ms Hayes is a former director of BTAC and is a member of it. Since Mr Slack's appointment as chief executive officer he and Ms Hayes have continuously been in disagreement regarding BTAC's operations.
The principal matters relied upon by Mr Slack in support of his application related to events which occurred at an anniversary dinner of BTAC held at Fraser's Restaurant in Kings Park on 15 September 2018, and at the annual general meeting of BTAC held on 19 October 2018. The events relied on comprise alleged verbal threats made, or instigated, by Ms Hayes towards Mr Slack. There is no suggestion of any physical act having been committed by Ms Hayes, or by anyone at her instigation, against Mr Slack.
On 17 October 2018, Mr Slack obtained an interim VRO against Ms Hayes. Ms Hayes objected to the interim order becoming a final order and a final order hearing was heard before the learned magistrate on 2 September 2019. The learned magistrate delivered oral reasons for decision on 3 September 2019. The learned magistrate dismissed Mr Slack's application.
The learned magistrate held that he was not satisfied that the threshold criteria for the making of a VRO set out in s 11A of the Restraining Orders Act had been established.[1] In coming to this finding, the learned magistrate was not satisfied Ms Hayes made, or instigated, the threats to Mr Slack which he described in his evidence.
[1] ts 9; Reasons for decision, first paragraph.
The learned magistrate held that the threshold criteria for the making of a misconduct restraining order (MRO) as set out in s 34 of the Restraining Orders Act had been established.[2] However, his Honour ultimately concluded that it was not appropriate to make a MRO.[3]
[2] ts 9; Reasons for decision, second paragraph.
[3] ts 9 - ts 11; Reasons for decision.
Mr Slack appeals by appeal notice dated 24 September 2019. Mr Slack contends that:
The Learned Magistrate should have made the interim violence restraining order granted 17 October 2018 in the terms of a final violence restraining order.
Mr Slack relies upon six different grounds of appeal. Those grounds relate to the making of a VRO. Mr Slack does not contend the learned magistrate erred in not making a MRO.
An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo. Given the appeal is by way of a rehearing it is necessary for Mr Slack to demonstrate error by the learned magistrate. This error must be a legal, factual or discretionary error.[4]
[4] Brocklehurst v Wolinski [2015] WADC 36[14] - [15].
Before addressing the grounds of appeal it is useful to first identify the relevant statutory provisions, the procedural history and the key findings made by the learned magistrate.

Restraining Orders Act

Pursuant to s 11A of the Restraining Orders Act, a court may make a VRO if satisfied:
(a)of one or both of the matters set out in s 11A(a) and s 11A(b); and
(b)that making a VRO is appropriate in the circumstances.
Accordingly, s 11A provides to the court a discretion to make a VRO. That discretion may only be exercised where the threshold criteria has first been established. In that respect, the court must be satisfied of one or both of the matters set out in s 11A(a) and s 11A(b), 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 phrase 'personal violence' is defined in s 6. Relevantly to this case, personal violence includes assaulting or causing personal injury to a person with whom the respondent to the application is not in a family relationship, or threatening to assault or cause personal injury to that person: s 6(2)(a) and s 6(2)(d). Furthermore, a person who procures another to commit personal violence is taken to have also committed the personal violence: s 6(3). Thus, a person who procures another to threaten to assault, or threaten to cause personal injury, to another person commits an act of personal violence against that person.
Section 12(1) sets out the matters which a court is to have regard in considering whether to make a VRO, and also as to the terms of such an order. Section 12(1)(a), s 12(1)(b) and s 12(1)(c) are directed to the protection of the person seeking to be protected by the order, and also the wellbeing of any affected children. Pursuant to s 12(2), a court is to have regard to the matters set out in s 12(1)(a), s 12(1)(b) and s 12(1)(c) as being of primary importance.
As the learned magistrate was not satisfied that Mr Slack had established either of the threshold criteria set out in s 11A, the learned magistrate did not consider whether the making of a VRO was appropriate in the circumstances. Thus, the learned magistrate did not have regard to s 12 of the Restraining Orders Act.
The learned magistrate did however consider whether a misconduct restraining order was appropriate having regard to the matters set out in s 35 of the Restraining Orders Act.[5] Section 35 sets out those matters to which a court is to have regard in considering whether to make a MRO, and the terms of such an order.
[5] ts 9; Reasons for decision, first paragraph.
Whilst certain matters set out in s 35 are similar to those set out s 12, there are matters of significant difference, in particular, the absence of those matters which are of primary importance as referred to in s 12(1)(a), s 12(1) (b) and s 12(1)(c).

Relevant procedural history

On 17 October 2018 Mr Slack applied for, and was granted, an interim VRO. The interim VRO was served on Ms Hayes on 18 October 2018.[6]
[6] ts 3; Reasons for decision, third paragraph.
Mr Slack's application identified the grounds as being:
Behaving in a way that could reasonably be expected to cause the person seeking to be protected to apprehend that personal violence will be committed against him or her.
The application identified the details of Ms Hayes' alleged behaviour as being:
Repeatedly threatened physical harm, escalating to threats of death to Mr Slack and his family.
The application was supported by an affidavit of Mr Slack sworn 16 October 2018. The affidavit became exhibit 1 in the hearing before the learned magistrate.
The affidavit identified two incidents in support of the grant of the order sought. The first incident is in respect of words which it is alleged Ms Hayes said to Mr Slack during the course of an anniversary dinner for BTAC held on 15 September 2018.[7] The second incident is in respect of words which it is alleged Ms Hayes' son, Mr Anthony Benjamin Huckerby,[8] said to Mr Slack at the anniversary dinner.[9]
[7] Affidavit of Mr Slack, pars 11 - 22.
[8] Who is variously called Anthony or Ben. In these reasons, I will use the descriptor Ben for consistency with the learned magistrate's reasons.
[9] Affidavit of Mr Slack, pars 36 - 41.
In respect of the first incident, Mr Slack stated in his affidavit that when he walked past the table at which Ms Hayes was sitting, the following occurred:
15.While I was walking past that table, I heard [Ms Hayes] say words to the effect of 'hey Matthew, you better watch yourself. My sons and I are going to hurt you and your family, we have told you this before'.
16.I understand that the sons [Ms Hayes] referred to are Marlon Hayes (who did not attend the event) and Anthony Huckerby.
17.I turned to [Ms Hayes] and said words to the effect of 'Sorry, what was that?'.
18.[Ms Hayes] said words to the effect of 'I have told you before, the Thalanyji men are going to sort you and your family out'.
19.I asked [Ms Hayes] words to the effect of 'Are you threatening me?'.
20.[Ms Hayes] said 'Yes'.
21.After this I walked away from the table and I heard [Ms Hayes] say words to the effect of 'my son is going to bash you'.
22.I understand that the son [Ms Hayes] was referring to was Anthony Huckerby as he was sitting next to [Ms Hayes] at the table.

The learned magistrate's findings

The learned magistrate identified four specific allegations relied upon by Mr Slack in support of the application. In summary, they were:
1.Ms Hayes had made disparaging comments about him, particularly pejorative comments about his Indigenous heritage, referring to him in disparaging terms as a white man.[10]
2.At the anniversary[11] dinner held on 15 September 2018, as Mr Slack walked past the table where Ms Hayes was sitting by herself, she said the words 'I'm going to hurt you and your family. My son is going to bash you'.[12]
3.Later that evening at the annual dinner, one of Ms Hayes' sons, Mr Ben Huckerby, said to Mr Slack words to the effect 'we are still going to kill you'.[13]
4.At the annual general meeting held on 19 October 2018, Ms Hayes was seated inside a vehicle. Mr Slack alleged the location of the vehicle had the effect of being intimidating to him in the context of points 1 and 2 above. Further, during the meeting, Ms Hayes' sons, Mr Huckerby and Mr Hayes made threats, saying to Mr Slack 'you shouldn't be here, a white man' and, these words were said whilst one or both of them were on the telephone to Ms Hayes.[14]
[10] ts 3; Reasons for decision, third paragraph.
[11] The learned magistrate used the phrase celebratory dinner.
[12] ts 3; Reasons for decision, fourth paragraph.
[13] ts 3; Reasons for decision, fifth paragraph.
[14] ts 4; Reasons for decision, second and third paragraph.
The learned magistrate then addressed the witnesses' evidence as follows.
Mr Ireland, who attended the meeting on 19 October 2018 and helped set up the venue for the meeting.[15] Mr Ireland gave evidence there was heated debate involving two groups within the meeting. One group was arguing for Ms Hayes to be allowed inside. Mr Ireland gave evidence that this group was very hostile towards Mr Slack and also gave evidence that this group included Mr Marlon Hayes.[16] Mr Ireland gave evidence that someone from that group made a threat to 'bash Mr Slack'. Mr Ireland was unable to say who this person was. Mr Ireland also gave evidence that after the meeting either Ms Hayes or her sister, Frances Hayes, made a threat to Mr Ireland that they or members of their family would come after him, as long as he remained a loyal employee of Mr Hayes.[17] I understand the reference here to 'Mr Hayes' is a reference to Mr Cyril Hayes, being Ms Hayes' brother and who the learned magistrate described as Ms Hayes' 'enemy'.[18]
[15] ts 4; Reasons for decision, fourth paragraph.
[16] ts 5; Reasons for decision, first paragraph.
[17] ts 5; Reasons for decision, second and third paragraphs.
[18] ts 5; Reasons for decision, second last paragraph.
Mr Ireland was clear that Ms Hayes had adopted the threat, whether or not she had used the words or the words were used by her sister. The learned magistrate was satisfied Mr Ireland gave a reliable account of the conversation.[19] The learned magistrate also held that the conversation revealed the depth of antipathy from Ms Hayes towards Mr Slack.[20] The learned magistrate held this cast doubt on the reliability of Ms Hayes' evidence on other matters.
[19] ts 5; Reasons for decision, third paragraph.
[20] ts 5; Reasons for decision, second last paragraph.
In respect of Mr Slack, the learned magistrate stated that his impression was it was difficult for Mr Slack to get past the grief that he perceived Ms Hayes had unjustifiably caused him.[21] The learned magistrate observed that Mr Slack was argumentative in cross‑examination and wanted to state his case at some length. The learned magistrate referred to how Mr Slack responded to questions about his qualifications. The learned magistrate held that Mr Slack's inability to answer clearly apparently innocuous questions raises questions about his evidence on other matters.[22] The learned magistrate described this as being of 'some significance'.
[21] ts 6; Reasons for decision, first paragraph.
[22] ts 6; Reasons for decision, second and third paragraphs.
The learned magistrate was satisfied that Ms Hayes had made disparaging comments pejorative of Mr Slack to both him and other parties many times in the period up until October 2018.[23] Further, the learned magistrate held Mr Slack was entitled to feel offended by these comments.[24]
[23] ts 6; Reasons for decision, second last paragraph.
[24] ts 6; Reasons for decision, last paragraph.
In relation to the anniversary dinner held at Fraser's Restaurant on 15 September 2018, the learned magistrate noted the evidence of a number of witnesses that Ms Hayes was never alone at the table that evening. The learned magistrate noted that they were giving evidence about an event which was almost a year ago.
The learned magistrate held that he was satisfied that there was an opportunity for Ms Hayes and Mr Slack to have some verbal altercation at the dinner.[25] The learned magistrate stated that he was unable to say whether or not the altercation was at the table as Mr Slack alleged, or at some other location. Further, he was unable to make specific findings on the words that were used.
[25] ts 7; Reasons for decision, second paragraph.
The learned magistrate then made the following finding:[26]
I noticed that Mr Slack is quite specific about the words that were used, but I have also noted some reservations about his evidence and the reliability of his evidence, and he is, generally. (emphasis added)
In the end though, I'm able to make findings that Ms Hayes was verbally aggressive towards Mr Slack on the evening of 15 September 2018 at Frasers. The precise words, I do not know that she used. I'm certainly not satisfied that if she did make any threatens - threats that were of a violent - or made reference to violence, that they should have been construed reasonably as anything other than Ms Hayes venting, as she is - had done on previous occasions.
[26] ts 7; Reasons for decision, second and third paragraphs.
In relation to the phrase 'and he is, generally' in this portion of the reasons, the parties were not able to clarify whether the learned magistrate had used any additional words after saying 'generally'.
In respect of the meeting on 19 October 2018, the learned magistrate took account that Ms Hayes did not get out of the car when Mr Slack arrived to enter the building.[27] The learned magistrate held that one of Ms Hayes' sons said words to Mr Slack that 'you shouldn't be here white man' and that she encouraged comments along those lines.[28] The learned magistrate was not satisfied that Ms Hayes encouraged any specific threats of violence and noted that Mr Ireland was unable to identify who used these words.[29]
[27] ts 7; Reasons for decision, last paragraph.
[28] ts 8; Reasons for decision, first substantive paragraph.
[29] ts 8; Reasons for decision, first substantive paragraph.
Finally, the learned magistrate referred to allegations that Mr Slack made about Ms Hayes being present close to where he lived and where his children attended school. The learned magistrate noted that those allegations were not included in Mr Slack's affidavit and that Ms Hayes denied them. The learned magistrate held that he was not satisfied as to those allegations.[30]
[30] ts 8; Reasons for decision, second substantive paragraph.
The learned magistrate then set out the applicable test, being that:[31]
Mr Slack … has reasonable grounds to apprehend that Ms Hayes will commit personal violence against him.
[31] ts 8; Reasons for decision, second last paragraph.
The learned magistrate then referred to the definition of personal violence as being set out in the Restraining Orders Act. The learned magistrate concluded that:[32]
There's no evidence of any of those other than the allegation of Mr Slack that Ms Hayes has threatened to assault or cause personal injury to him. It will be apparent from my findings that I am not satisfied that Mr - Ms Hayes has made that threat. I have made clear that Ms Hayes has made verbally pejorative and abusive comments, that those comments have been heated. Insofar as there may have been references to violence, I'm not satisfied that they could reasonably be taken as anything other than Ms Hayes venting, without reasonably being taken to be a threat of actual violence.
[32] ts 8; Reasons for decision.
These were the reasons why the learned magistrate held he was not satisfied that the threshold criteria provided for by s 11A had been satisfied.
In respect of the possible grant of an MRO, the learned magistrate held that unless restrained, Ms Hayes is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to Mr Slack.[33] Further, Ms Hayes' behaviour would intimidate or offend Mr Slack.[34]
[33] ts 9; Reasons for decision, second paragraph.
[34] ts 9; Reasons for decision, third paragraph.
The learned magistrate held it was not appropriate to make an MRO having regard to the length of time the VRO had been in place, the nature of the relationship between the parties and the complexity of the various issues, and that there was no finding of a breach of the order.[35]
[35] ts 11; Reasons for decision, last paragraph.

Grounds of appeal

The hearing of the appeal did not proceed by way of direct correlation to the grounds of appeal set out in the appeal notice. In saying that, I am not being critical of the parties. Rather, it is a reflection of how the hearing could most efficiently be conducted.
It seems to me the issues raised by the appeal can best be distilled as follows:
1.Did the learned magistrate err in finding he was not satisfied that at the anniversary dinner Ms Hayes spoke to Mr Slack in the terms set out in his affidavit?
2.Should this court now make findings of fact to the effect that Ms Hayes spoke to Mr Slack at the anniversary dinner in the terms set out in his affidavit?
3.In the alternative, did the learned magistrate err by not finding that the threshold criteria set out in s 11A of the Restraining Orders Act was satisfied by reason of his Honour's finding that Ms Hayes was verbally aggressive towards Mr Slack at the anniversary dinner, or by reason of His Honour's acceptance of Mr Ireland's evidence?
4.Did the learned magistrate err in the exercise of his discretion that the making of a final VRO was not appropriate in the circumstances?

I am satisfied that these issues are sufficiently encapsulated within the grounds of appeal as follows: issue 1 is encapsulated within ground 1, issue 2 is encapsulated within ground 2, issue 3 is encapsulated within grounds 1 and 3 and issue 4 is encapsulated within grounds 4, 5 and 6.
Before addressing the issues directly, I make the following introductory observations.
I have set out at [23] the significant aspects from Mr Slack's affidavit as to what he contends Ms Hayes said to him at the anniversary dinner. There can be no doubt that the words attributed to Ms Hayes, if said, constitute personal violence within the meaning of the Restraining Orders Act, being a threat to assault or cause personal injury to Mr Slack. Furthermore, such words if spoken:
1.would constitute Ms Hayes having committed personal violence against Mr Slack and thus satisfy the criteria set out in s 11A(a) of the Restraining Orders Act.
2.are likely to constitute reasonable grounds for Mr Slack to apprehend that Ms Hayes will commit personal violence against him and thus satisfy the criteria set out in s 11A(b) of the Restraining Orders Act.
Further, while Mr Slack alleges Ms Hayes said the words during one conversation between them, there are four separate passages in the conversation which convey a threat from Ms Hayes to Mr Slack. Respectively, they are set out at pars 15, 18, 20 and 21 of Mr Slack's affidavit. Also, the conversation set out in Mr Slack's affidavit comprised three separate stages: first, when Mr Slack walked past the table; second, when Mr Slack engaged with Ms Hayes at the table; third, when Mr Slack walked away from the table. Ms Hayes gave evidence in effect saying that nothing was said to Mr Slack[36] and that Mr Slack was telling lies.[37] While the learned magistrate held Mr Ireland's evidence of his conversation with Ms Hayes at the AGM revealed Ms Hayes' antipathy towards Mr Slack and cast doubt on the reliability of her evidence on other issues, the learned magistrate did not make any express finding as to Ms Hayes' credibility in respect of the alleged critical conversation.

Issue 1

General principles

[36] Hearing 2 September 2019; ts 67.

[37] Hearing 2 September 2019; ts 68.

In Woodley v Woodley,[38] the Court of Appeal in a joint judgment observed:
It is well established that an appellant who seeks to overturn credibility-based findings of fact faces a high hurdle. An appellate court is, in some respects, at a disadvantage as compared to a trial judge who sees and hears the witnesses giving their evidence. Generally, the trial judge's credibility-based findings of fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the trial judge has failed to use, or has palpably misused, their advantage as trial judge.
[38] Woodley v Woodley [2018] WASCA 149 [154].
Furthermore, credibility based findings of fact may be overturned if they are not rationally or reasonably open on the evidence.[39]

Issue 1 – learned magistrate's findings

[39] Absolute Analogue Inc v Sundance Resources Ltd [2015] WASCA 168 [105].

The learned magistrate's reasons for not accepting that Ms Hayes spoke the specific words alleged by Mr Slack were:[40]
I noticed that Mr Slack is quite specific about the words that were used, but I have also noted some reservations about his evidence and the reliability of his evidence, and he is, generally.
[40] ts 7; Reasons for decision, second paragraph.
Having read the learned magistrate's reasons, it is apparent there are two bases upon which his Honour expressed reservations regarding Mr Slack's evidence. The first basis was the learned magistrate's impression that it was difficult for Mr Slack to get past the grief that he perceived Ms Hayes had unjustifiably caused him. As a result, the learned magistrate considered Mr Slack was argumentative in cross‑examination. The second basis was the learned magistrate's observation that Mr Slack's inability to answer clearly apparently innocuous questions regarding his qualifications raises questions about his evidence on other matters. I interpret the phrase 'answer clearly apparently innocuous questions' such that there is a comma after 'clearly'; so, put another way the phrase conveys that Mr Slack did not answer clearly, questions that were apparently innocuous.
I have read the transcript of Mr Slack's evidence. Mr Slack's evidence proceeded by way of his affidavit sworn 16 October 2018 being received as exhibit 1. This affidavit was treated as Mr Slack's evidence‑in‑chief,[41] which was then supplemented by further questions in examination‑in‑chief.
[41] Hearing 2 September 2019, ts 17; see also ts 24.
Unfortunately, this approach meant that Mr Slack did not give any oral evidence-in-chief concerning the conversation which he alleged Ms Hayes had with him on the evening of the anniversary dinner. In circumstances where the primary conflict between the parties was a dispute of fact as to a particular conversation between them, and Ms Hayes was representing herself, in my view it was plainly preferable that Mr Slack gave oral evidence of the conversation. However, because I consider that to be the preferable course, does not by itself mean the learned magistrate erred by taking evidence in the way in which his Honour did. In this respect, in proceeding in the manner in which the learned magistrate did, I am satisfied his Honour had regard to s 13 of the Magistrates Court (Civil Proceedings) Act (WA) 2004, in particular the dictates of efficiency, economy and expedition which s 13 prescribes.
Ms Hayes' cross-examination of Mr Slack commenced on page 30 of the transcript. The cross‑examination as to the alleged critical conversation between them at the anniversary dinner was very limited. In respect of the words used, at its highest, Ms Hayes put to Mr Slack:[42]
HAYES, MS: The next thing I want to ask Mr Slack about his - Fraser's, did you leave - you said you left early?---Absolutely I did.
Yes. And we will come to the witnesses with that. Threats to your family?--- Yes, and myself.
And yourself. I don't know your family.
[42] Hearing 2 September 2019, ts 33.
In respect of the circumstances in which the conversation took place, the cross-examination was limited to whether Ms Hayes was sitting at a table at the time, and how many people were sitting with her.[43] The learned magistrate intervened in the questioning, to pose one of the questions himself.
[43] Hearing 2 September 2019, ts 32 - ts 33.
Ms Hayes did not question Mr Slack as to the precise words he alleged Ms Hayes said to him. Apart from the cross-examination as to where she was seated, Ms Hayes did not question Mr Slack as to the circumstances in which the alleged words were spoken.
In saying this, I am not being critical of Ms Hayes. I recognise Ms Hayes represented herself at the hearing. As a litigant in person, Ms Hayes is to be afforded some latitude as to the manner in which she conducted the cross-examination.[44] However, even so, the conduct of the cross-examination is a relevant factor in considering whether the learned magistrate erred by not accepting Mr Slack's evidence of the conversation with Ms Hayes at the anniversary dinner. In this respect, it must be kept in mind that the alleged conversation was the key plank of Mr Slack's application.
[44] See Woodley [76].
From my review of Mr Slack's evidence, his oral evidence with respect to the words spoken by Ms Hayes in the critical conversation at the anniversary dinner is limited to that which I have set out at [53]. Further, Mr Slack did not give oral evidence regarding the separate stages of the conversation that I have set out at [46].
Ms Hayes' cross‑examination of Mr Slack regarding his qualifications commenced on page 31 of the transcript. It followed Ms Hayes asking Mr Slack whether he was an honest man.[45] At page 32, Ms Hayes asked:
Three times in the Australian by Andrew Burrell, as everything that you said in your resume was false?
[45] Hearing 2 September 2019, ts 31.
Mr Slack answered:
That's not true.
After some further questions, the learned magistrate then intervened and explained to Ms Hayes that his Honour was happy for her to ask questions which went to Mr Slack's truthfulness as a witness.
On page 38 of the transcript of the hearing on 2 September 2019, Ms Hayes then said she wanted to elaborate more on Mr Slack's honesty and then proceeded to cross-examine Mr Slack on his qualifications. Cross‑examination on this topic continued through to page 49. Mr Slack's counsel objected to the line of questioning. The learned magistrate allowed the questions, saying they seem to be going to credit.[46] The learned magistrate also recognised the questions were not being put very elegantly.[47]
[46] Hearing 2 September 2019, ts 39.
[47] Hearing 2 September 2019, ts 39.
During this further questioning, Mr Slack said that The Australian article was the subject of a defamation action against The Australian newspaper and Mr Burrell.[48] Furthermore, Mr Slack explained in his evidence that his records in respect of having studied a Bachelor of Science and Aviation at Edith Cowan University had been provided to his solicitors and are the subject of the defamation action.[49] I infer from this that Mr Slack's qualifications, at least in so far as they related to Edith Cowan University, was a relevant issue in the defamation proceedings.
[48] Hearing 2 September 2019, ts 39.
[49] Hearing 2 September 2019, ts 39.
The learned magistrate in his reasons referred to a particular line of questioning directed to Mr Slack saying he had studied a particular course, but had not completed it.[50] From what I can discern from Mr Slack's evidence, the passage that formed the basis for this observation is:[51]
HAYES, MS: I would like to ask Mr Slack, do you have a Bachelor of Science from - in Aviation from Edith Cowan University?---I've studied a Bachelor of Science (Aviation) from ECU, yes.
Well - - -?---I didn't complete the course, but I - I didn't complete the course, but I studied it.
[50] ts 6; Reasons for decision, second paragraph.
[51] Hearing 2 September 2019, ts 38.
During the course of Mr Slack's counsel's closing address, the learned magistrate did not raise Mr Slack's response to questions regarding his qualifications as being an issue that might significantly affect Mr Slack's credit as a witness.
A key aspect of the learned magistrate's reasoning regarding the questioning of Mr Slack in relation to his qualifications is as follows:[52]
But what is of some significance to me is that Mr Slack's inability to answer clearly apparently innocuous questions raises questions about his evidence on other matters.
[52] ts 6; Reasons for decision, third paragraph.
In my view, there are a number of difficulties with this finding.
I do not consider the questioning was apparently innocuous. Ms Hayes' primary objective in cross-examining on this topic was to demonstrate that Mr Slack was not an honest man. Further, the learned magistrate allowed the questioning because it went to Mr Slack's credit, that is, to his honesty. It seems to me that extensive questioning directed to Mr Slack's credit (honesty), and in respect of which subject matter Mr Slack had commenced defamation proceedings against a national newspaper, cannot be regarded as innocuous, whether viewed subjectively from Mr Slack's perspective, or viewed objectively. This is so even though the questioning had no direct connection to the critical conversation relied on by Mr Slack. While the questioning was on a peripheral factual matter, the topic was still of importance to Mr Slack and related to a matter of some sensitivity to him.
Further, the learned magistrate accepted that Ms Hayes' questions were not being put very elegantly.[53] Having read the cross‑examination it does seem to me that the questioning on this topic was at times quite confusing, which was capable of giving rise to the confusing nature of the answers. Thus, the lack of clarity in Mr Slack's answers which the learned magistrate observed was contributed to by the style of questioning.
[53] Hearing 2 September 2019, ts 39.
Furthermore, the learned magistrate stated in his Honour's reasons that:[54]
It wasn't apparent that he had ever said anything in the past about his qualifications that was untrue or he had said anything at all about his qualifications in the past.
[54] ts 6; Reasons for decision, second paragraph.
Mr Slack gave evidence that the CV upon which he was hired by BTAC did not contain any statements about his qualifications.[55] However, the cross-examination on this topic commenced with Ms Hayes putting to Mr Slack that The Australian newspaper had reported on three occasions that 'everything that you said in your resume was false'.[56] As I have observed, in the defamation proceedings brought by Mr Slack against The Australian newspaper, the nature of his qualifications was a relevant issue at least in so far as they related to Edith Cowan University.[57]
[55] Hearing 2 September 2019, ts 48.
[56] Hearing 2 September 2019, ts 32
[57] Hearing 2 September 2019, ts 39.
The tenor of Ms Hayes' cross-examination was that she possessed a resume for Mr Slack which contained statements regarding his qualifications which she contended were untrue. In this respect, on page 48 of the transcript Ms Hayes referred to having sighted a resume for Mr Slack.
Accordingly, it was not correct for the learned magistrate to observe in an absolute sense that Mr Slack had not previously made any statements about his qualifications, or that what he had said regarding his qualifications was untrue. At best, on the evidence, the validity of any such observation was limited to Mr Slack's evidence as to the resume (CV) upon which he was hired by BTAC.
For these reasons overall, in my view the learned magistrate's finding that Mr Slack's responses to the questioning on his qualifications raised questions about his evidence on other matters was not reasonably open on the evidence as a whole and the learned magistrate therefore erred.
Furthermore, the learned magistrate described his assessment of Mr Slack's responses to the questioning on his qualifications as being of 'some significance'. Such description is consistent with his Honour's reasons taken as a whole, which make clear that Mr Slack's response to questioning on this topic was one of the primary matters relied upon by the learned magistrate for his Honour's conclusion that he was 'unable to make specific findings on the words that were used'.[58]
[58] ts 7; Reasons for decision, second paragraph.
The questioning on Mr Slack's qualifications did not pertain directly to the critical conversation alleged to have taken place at the anniversary dinner. Further, the learned magistrate only had the benefit of very limited oral evidence from Mr Slack as to what Ms Hayes said in the conversation, and as to the sequencing of that conversation. Thus, in assessing Mr Slack's credit, the learned magistrate was not able to have regard to Mr Slack's demeanour in recounting the conversation, the precision with which he was able to recount the conversation, or whether Mr Slack's recounting of the conversation impressed as being credible.[59]
[59] By way of contrast, his Honour took account of Mr Ireland giving a reliable account of his conversation with Ms Hayes; Reasons for decision, ts 5, third paragraph.
It also must be kept in mind that Mr Slack's case was not dependent on Ms Hayes making an isolated comment to him. Rather, as I have observed at [46], the words which Mr Slack attributed to Ms Hayes comprise four separate threats being made, with the subject conversation comprising three separate stages.
In my view, when regard is had to the following matters, the learned magistrate erred in assessing Mr Slack's responses to the questioning on his qualifications as being of some significance in respect of the issues before the learned magistrate:
1.The questioning on Mr Slack's qualifications did not pertain to the critical conversation. At best, it was background to the nature of Mr Slack's relationship with Ms Hayes.
2.The critical conversation which founded Mr Slack's application as set out in his affidavit involved a degree of detail, comprising ongoing threats effectively made in three different stages of the conversation.
3.The learned magistrate did not have the benefit of observing Mr Slack recount the critical conversation in his oral evidence, nor was the recounting of that conversation in Mr Slack's affidavit significantly tested in cross-examination.
4.In these circumstances, in my view Mr Slack's responses to questioning on what was a peripheral factual matter could not reasonably be regarded as being of some significance in assessing whether the critical conversation had taken place.
In summary, I find that the learned magistrate erred in forming an adverse view of Mr Slack's evidence as a result of Mr Slack's responses to the questioning on his qualifications. I also find the learned magistrate erred in elevating that matter to one of some significance in his assessment of Mr Slack's evidence. I am also satisfied that by reason of these errors the learned magistrate failed to use his Honour's advantage as trial magistrate.
As I have observed at [50], the learned magistrate's assessment of Mr Slack's responses to the questioning on his qualifications was one of the two areas where the learned magistrate expressed reservations as to Mr Slack's evidence. This assessment formed one of the founding bases for the learned magistrate's ultimate finding that he was not satisfied Ms Hayes spoke the words alleged by Mr Slack. I have found the learned magistrate erred in making the assessment, and in elevating it to a matter of some significance. That being so, I am of the view the learned magistrate erred in making the ultimate finding that he was not satisfied that at the anniversary dinner Ms Hayes spoke the words alleged by Mr Slack in his affidavit.
Accordingly, I am of the view that Mr Slack has made out issue 1, to the extent it falls under ground 1 of the grounds of appeal.

Issue 2

Issue 2 is directed to whether I can now make a factual finding as to what was said by Ms Hayes to Mr Slack at the annual dinner. In my view, for me to make such a finding would require me to make credibility findings regarding each of Ms Hayes and Mr Slack. In this respect, as I have observed, Mr Slack gave very limited oral evidence at trial in respect of the conversation. Ms Hayes in her evidence denied making the threats. Furthermore, there are no contemporaneous documents which might assist in such an assessment.
In Absolute Analogue Inc, McLure P (with whom Buss JA and Mazza JA agreed) stated in respect of the case before her Honour: [60]
The credibility of the main witnesses … is crucial to the outcome. Without making judgments as to the credibility of the witnesses, I am unable to confidently determine where the weight of the evidence lies. There are too few incontrovertible facts and too little uncontested testimony to reverse the result. Thus the issues are not matters which can be equally validly redetermined by an appellate court.
[60] Absolute Analogue Inc v Sundance Resources Ltd [164].
In my view, these observations apply equally to this case. Specifically, in my view, I would need to make judgments as to the credibility of the witnesses in order to confidently determine where the weight of the evidence lies. That being so, in my view what was said in the critical conversation is not a matter which can be equally validly redetermined by an appellate court.
Issue 2 therefore is not made out.

Issue 3

Before addressing the specific matters relevant to this issue, it is useful to return to the definition of personal violence set out in the Restraining Orders Act and also the basis for Mr Slack's application.

The definition of personal violence does not require that there be an actual assault upon a person. Pursuant to s 6(2)(d), personal violence includes where a person threatens to assault or cause personal injury to another person, with whom they are not in a family relationship. In addition, pursuant to s 6(3) a person who procures another person to commit personal violence is taken to have also committed the personal violence.
Furthermore, the threshold category set out in s 11A(b) is to the effect, relevantly, that the applicant for the order has reasonable grounds to apprehend that the respondent will commit personal violence against that person.
Here, Mr Slack's application for a VRO engaged with s 11A(b), namely that he has reasonable grounds to apprehend that Ms Hayes will commit personal violence against him. This would include Ms Hayes procuring another person to assault or cause personal injury to him.
Mr Slack's submission in respect of issue 3 arises from the learned magistrate's findings that: [61]
In the end though, I'm able to make findings that Ms Hayes was verbally aggressive towards Mr Slack on the evening of 15 September 2018 at Fraser's. The precise words, I do not know that she used. I'm certainly not satisfied that if she did make any threatens - threats that were of a violent - or made reference to violence, that they should have been construed reasonably as anything other than Ms Hayes venting, as she is - had done on previous occasions.
…
Personal violence is defined in the law to mean one of the – one of a certain number of acts, which are set out in the relevant subsection.
There's no evidence of any of those other than the allegation of Mr Slack that Ms Hayes has threatened to assault or cause personal injury to him….
I have made clear that Ms Hayes has made verbally pejorative and abusive comments, that those comments have been heated. Insofar as there may have been references to violence, I'm not satisfied that they could reasonably be taken as anything other than Ms Hayes venting, without reasonably being taken to be a threat of actual violence. (emphasis added for the purposes of Mr Slack's submission)
[61] ts 7 - ts 8; Reasons for decision.
In essence, Mr Slack submits in respect of issue 3 that:
1.The learned magistrate did not apply the correct test prescribed by the Restraining Orders Act as to what constitutes personal violence.
2.If the learned magistrate had applied the correct test his Honour ought to have found that the factual findings as to Ms Hayes' conduct which his Honour did make, met the requisite threshold prescribed by s 11A.

Did the learned magistrate apply the correct test?

Mr Slack submitted that the learned magistrate applied the wrong test because, in the passage set out at [89], the learned magistrate used the word 'violence' and the phrase 'threat of actual violence', not the phrase 'personal violence' as defined in s 6.[62] For convenience, I have underlined these words in the passage at [89].
[62] Hearing 19 March 2020, ts 60 – ts 61.
The learned magistrate's reasons must be read as a whole. As can be seen from the entire passage set out at [89], the learned magistrate referred to the phrase 'personal violence' as being one of a number of acts which are set out in the relevant subsection.[63] In the next sentence the learned magistrate says:[64]
There's no evidence of any of those other than the allegation of Mr Slack that Ms Hayes has threatened to assault or cause personal injury to him.
[63] In addition, the learned magistrate at the commencement of the trial explained to Ms Hayes that a threat of an assault constitutes personal violence; see ts 11 – ts 12.
[64] ts 8; Reasons for decision, last paragraph.
The learned magistrate therefore expressly recognised that a threat to do one of the acts set out in s 6 can by itself constitute personal violence. In my view, it is therefore clear that the learned magistrate was using the word 'violence' and the phrase 'threat of actual violence' as equating to personal violence as set out in s 6.
I therefore reject Mr Slack's submission on this point. Further, to the extent Mr Slack's case may be predicated on an apprehension of future threats of assault, or of personal injury, on the evidence in this case, such an apprehension could only properly be characterised as arising from the continuation of existing threats. Thus, the learned magistrate being satisfied that Ms Hayes made such threats would still be critical.

Factual findings made as to Ms Hayes' conduct

The learned magistrate did not find that Ms Hayes made any references to violence in her conversations with Mr Slack. Relevantly from the passage set out [89] above, the learned magistrate held:
I'm certainly not satisfied that if she did make any threatens - threats that were of a violent - or made reference to violence, that they should have been construed reasonably as anything other than Ms Hayes venting, as she is - had done on previous occasions. (emphasis added)
…
Insofar as there may have been references to violence, I'm not satisfied that they could reasonably be taken as anything other than Ms Hayes venting, without reasonably being taken to be a threat of actual violence. (emphasis added)
Accordingly, the learned magistrate's findings are to the effect that if there were references to violence, his Honour was not satisfied they could reasonably be taken as anything other than Ms Hayes venting. Thus, the learned magistrate did not make a factual finding which enabled a further finding to be made that Ms Hayes had threatened personal violence within the meaning of the Restraining Orders Act.
Furthermore, the learned magistrate equated the venting at the anniversary dinner as being consistent with what Ms Hayes had done on previous occasions. As Ms Hayes points out, the learned magistrate's findings in relation to Ms Hayes' conversations with Mr Slack on previous occasions are limited to the following:[65]
I'm satisfied that Ms Hayes has made disparaging comments, pejorative of Mr Slack to Mr Slack and to third parties numerous times in the period up until October 2018. She has, in effect, vilified him on a number of occasions, referring to him in disparaging terms as a white man.
…
He is … entitled to feel offended by being referred to in the language and the tone that I'm satisfied has been used by Ms Hayes on a number of occasions.
[65] ts 6; Reasons for decision, last two paragraphs.
Accordingly, the learned magistrate did not find that in the prior conversations Ms Hayes had made threats of a nature which constituted personal violence. The learned magistrate did however find that Ms Hayes' conduct had in fact intimidated and offended Mr Slack, which is a relevant consideration in respect of the grant of an MRO.[66] Therefore, the learned magistrate expressly turned his mind to the characterisation of Ms Hayes' conduct as found and assessed it as being intimidatory and offensive, but not equating to personal violence.
[66] ts 9; Reasons for decision, first three paragraphs.
I should also add that there appears to be a degree of artificiality to the point Mr Slack seeks to make in respect of issue 3. The matter was argued before the learned magistrate on the basis that Mr Slack's apprehension arose from the matters set out in his affidavit, namely the incidents at the anniversary dinner. In addition, Mr Slack's application was grounded on the basis that Ms Hayes had:
Repeatedly threatened physical harm, escalating to threats of death to Mr Slack and his family.
Mr Slack's case was opened on the basis that at the anniversary dinner:[67]
…on two separate occasions Mr Slack was threatened by both [Ms Hayes] and members of her family and they were threats of violence both to Mr Slack and his family.
There will be evidence led about that and that was of significant concern to Mr Slack that caused him to apprehend potential violence against him. In those circumstances, Mr Slack came to this court, obtained an interim order in late 2018.
[67] ts 6.
Accordingly, the substantive basis upon which the application was brought and run, and upon which Mr Slack's apprehension was founded, was the threats made at the anniversary dinner as detailed at pars 15 to 22 and 39 of his affidavit.
Further, at par 10 of Mr Slack's affidavit, Mr Slack states in respect of conduct prior to the annual dinner that:
The type of comments that the respondent has made to me before have predominantly been racial and cultural attacks.
As can be seen from par 10, Mr Slack distinguished the prior conversations as being predominantly racial and cultural attacks.
In relation to Mr Ireland's evidence, at par 21 of Mr Slack's outline of submissions dated 8 January 2020, Mr Slack submitted that the learned magistrate had accepted evidence given by Mr Ireland that Ms Hayes had caused third parties to make threats of personal violence to him at the annual general meeting. However, this is not what the learned magistrate found.
The learned magistrate stated that Mr Ireland gave evidence that he was unable to say who made the threat to bash Mr Slack.[68] The learned magistrate held that: [69]
I'm not satisfied that Ms Hayes encouraged any specific threats of violence. I note, Mr Ireland's having heard those words used, but he was unable to attribute who was using those words from a group of people.
[68] ts 5; Reasons for decision,, second paragraph.
[69] ts 8; Reasons for decision, first substantive paragraph.
At its highest, the learned magistrate's finding was to the effect that a person within the group including Ms Hayes' sons made the threat. This does not equate to a finding that Ms Hayes caused the unknown person to make the threat.
Mr Slack also submitted at par 27 of the outline of submissions dated 8 January 2020 that the learned magistrate should have held that Mr Marlon Hayes made the threat, Ms Hayes being on the phone to him at the time. Mr Ireland gave evidence in respect of the person who made the threat that:[70]
I don't remember his name unfortunately. I - I know Marlon wasn't happy and there was a couple of other blokes with him as well that weren't happy.
[70] Hearing 2 September 2019, ts 57 - ts 58.
In my view, by Mr Ireland saying: 'I don't remember his name unfortunately' and then: 'I know Marlon wasn't happy', Mr Ireland conveyed that it was someone other than Mr Marlon Hayes who made the threat. Therefore, given that the learned magistrate accepted Mr Ireland's evidence, a finding that Mr Marlon Hayes made the threat was not open.
The balance of par 21 of the written submissions is directed to racial abuse and vilification of Mr Slack, which is subsumed within the issue that I have dealt with above at [95] to [103].
For these reasons, in my view, the learned magistrate did not err by finding that his Honour's factual findings did not meet the threshold criteria set in s 11A.
Finally in respect of issue 3, during argument, Mr Slack's counsel suggested that the reference in s 11A(b) to 'reasonable grounds to apprehend' conveys that the relevant criteria is solely an objective one.[71] Thus, it was submitted s 11A does not require any particular person to hold the apprehension; rather it is sufficient if there are reasonable grounds for an apprehension. Understood in this way, the threshold criteria in s 11A(b) could be met by the establishment of grounds different to those relied on by the applicant for the VRO.
[71] Hearing 19 March 2020, ts 62 – ts 63.
My initial impression of the language of s 11A(b) is that the applicant's perception of the applicable circumstances is a relevant consideration and therefore the section does import a subjective component. However, given the findings I have made in relation to issue 3, I do not need to resolve this issue.
Issue 3 is not made out.

Issue 4

The principal difficulty with issue 4 is that it is directed to error by the learned magistrate in the exercise of the discretion to make a VRO. However, the learned magistrate did not consider the exercise of the discretion to grant a VRO, only considering the exercise of the discretion to make a MRO. As I have observed, the criteria for the making of a VRO and a MRO are different, with different matters of primacy stipulated.
Further, Mr Slack does not by his appeal notice contend that the learned magistrate erred by declining to make a MRO.
In any event, having regard to my findings in respect of issues 2 and 3, the exercise of the discretion to make a VRO does not fall for consideration.
For these reasons, issue 4 is not made out.

Result so far

In summary, I have found that:
1.The learned magistrate erred in finding that he did not accept Mr Slack's version of what Ms Hayes said to him at the annual dinner.
2.In the circumstance of this case, it is not appropriate for me to substitute my own finding of fact as to what Ms Hayes said to Mr Slack at the annual dinner.
3.The learned magistrate did not apply the wrong criteria in assessing Mr Slack's application.
4.The learned magistrate did not err by finding that his Honour's factual findings did not meet the threshold criteria set in s 11A of the Restraining Orders Act.
5.The learned magistrate did not consider the exercise of the discretion to make a VRO and therefore alleged error in the exercise of that discretion does not arise. In any event, when regard is had to my findings in respect of issues 2 and 3, the exercise of the discretion to make a VRO does not fall for consideration.
In light of these findings, I need to consider what orders should now be made. In particular, I need to consider whether I should send the matter back to the Magistrates Court for a new trial of the application. My preliminary view is that the nature and extent of any current relationship between the parties is a relevant consideration in my assessment of what orders should now be made.
I will therefore need to hear further from the parties. Accordingly, I will re‑list the matter for the parties to provide further submissions and any further material referable to the current relationship between them.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Lemonis
29 JULY 2020