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The nature of an appeal under s 85 of the Act

15. The nature of an appeal under s 85 of the Act is identified in Chelsey (a pseudonym) v Goodwin (a pseudonym) (No 2) [2022] ACTSC 364 at [4]: An appeal under s 85 of the Act is in the nature of a rehearing: see CM v TM [2011] ACTSC 53 at [14], per Refshauge J and TS v DT [2019] ACTSC 295 at [53], per Crowe AJ. As the decision appealed from is discretionary in nature, it is necessary to demonstrate error of the nature described in House v The King [1936] HCA 40; 55 CLR 499. The grounds of appeal

16. The notice of appeal identifies four grounds of appeal: 5(a). Ground One: The Magistrate erred in finding that the Appellant used personal violence in relation to the Respondent. 5(b). Ground Two: The Magistrate erred in finding that the Appellant may engage in personal violence in relation to the Respondent during the time the order was proposed to operate if the order was not made. 5(c). Ground Three: The Magistrate erred in being satisfied that it was necessary to make a final order. 5(d). Ground Four: The Magistrate erred in conducting the proceedings in a manner that was inconsistent with achieving justice.

17. Grounds three and four were not pressed.

18. The relief sought in the notice of appeal in relation to grounds one and two is that the final personal protection order be set aside and the application for that order be dismissed. Counsel for the appellant indicated at the hearing that the appellant also sought an order for the costs of the appeal. The decision of the magistrate

19. The magistrate gave her decision orally on 30 October 2024. The reasons extend over 14-and-a-half pages of transcript. Her Honour indicated that she had heard evidence earlier on 2 July and 5 September, some of which was relevant to her decision but a lot of which was not relevant. She referred to the fact that under s 10A of the Act, she was not required to comply with the rules of evidence and, if required to make a finding, she must make it on the balance of probabilities.

20. The magistrate made reference to the matters that she was required to consider under s 11 of the Act. She then identified that there was an issue in the matter as to whether or not the appellant had engaged in personal violence towards the respondent. She identified that only the limb of the definition of “personal violence” that referred to “harassing, intimidating or offensive behaviour” was relevant. The magistrate identified that she had discretion as to whether or not she should make a personal protection order, referring to the decision of the Supreme Court in Chelsey. The magistrate identified that she was entitled to accept or reject evidence wholly or in part, must bring an unbiased and open mind to the evidence, and could apply her own common sense and life experience in assessing the probabilities of particular human behaviour.

21. The magistrate identified that there were essentially two contested questions: first, whether the conduct of the appellant constituted personal violence and second, whether, in the absence of an order, the appellant may engage in personal violence during the time that would be the subject of the order.

22. The magistrate referred to dictionary definitions of “harassing”, “intimidating” and “offensive”. So far as “offensive” was concerned, the reasons provide: And in terms of what the word ‘offensive’ means, the Cambridge definition defines it as the condition of having your feelings hurt, especially because someone has been rude or showed a lack of respect. The Oxford Concise Dictionary describes it as ‘aggressive, intended or used for attack’. In my view that definition is not the primary definition in the context of family violence. Further defines ‘offensive’ as giving or meant to give offence, or insulting. And the other aspects of the definition are not, in my view, relevant. And given ‘offence’ [this should be ‘giving offence’] is defined as attacking or aggressive, taking of the offensive, wounding of the feelings, annoyance or umbrage, transgression, misdemeanour or illegal act.

23. She then turned to identify matters described in the evidence which she said “have ultimately not been relevant in my determination of the matter”. She identified that evidence and her reasons for treating it with caution or finding it not relevant to her ultimate determination.

24. Next, the reasons identified that there appeared to have been an amicable relationship between the parties between about 2020 and 2022. However, in August 2022, there became an issue between the parties in relation to water pooling adjacent to the appellant’s garage. The appellant was permitted by the respondent to dig a trench so as to be able to place a waterproof membrane against his garage. This took longer than expected and this “seems to have created an additional issue”.

25. The magistrate then referred to a number of other incidents. One occurred on 21 March 2023, and involved the appellant coming onto the respondent’s property in order to speak to a tradesman who was working on that property. The appellant did so without first speaking to the respondent. The magistrate found “there is some degree to which there is a sense of entitlement by [the appellant] to be able to speak to the worker at [the respondent’s] property at that point”. In the subsequent conversation with the respondent and her husband, the magistrate found that the appellant was emotional. As he was leaving, he said that the parties’ respective children were not going to play with one another from then on. The magistrate found: “This does appear to have been an emotional exchange between the parties and with the benefit of hindsight could have been conducted in a more appropriate way”. The magistrate found that the respondent did find the conversation intimidating, but that it was the first incident of real conflict between the parties. She was not satisfied that it amounted to intimidating, harassing, or offensive behaviour as an isolated incident. However, it did disclose that the appellant had “personal feelings towards his neighbours, including such strength of feelings that he had determined that the children could no longer play together”. The magistrate found that speaking to the worker without first obtaining agreement of the respondent and her husband transgressed an appropriate boundary between neighbours, and involved acting with a degree of entitlement. She said: “And, in my view, that did transgress a normal boundary. And in that sense I do find that that was offensive”.

26. The magistrate then referred to incidents involving a pizza oven on the property of the respondent which occurred in mid-April and again on 3 June 2023. The magistrate was not satisfied those incidents were harassing, intimidating or offensive. She also referred to a conversation between the appellant and another witness which the magistrate was not satisfied involved a racist comment by the appellant.

27. There was then a discussion about the situation after these incidents where there was “clearly by this point personal animosity between the parties or, perhaps, emotions from [the appellant] that had been expressed, although in a controlled way in the March incident”.

28. During the construction of a fence between the two properties, the appellant was observed to be peering over the fence on two occasions. The magistrate was not satisfied that this, in the context of construction works, amounted to personal violence.

29. The magistrate then turned to the issue of photography by the appellant of the respondent’s side of the courtyard and backyard. The magistrate said: It appears to me that there was extensive photography of [the respondent’s] side and back yard. The photographs that have been provided to me in the course of this hearing were, as I understand that, provided by [the appellant] as part of the ACAT [ACT Civil and Administrative Tribunal] matter. As I understand [the respondent] did not know before the ACAT hearing that these photographs have been taken of her back yard.

30. The reference to the ACAT matter is to proceedings in the ACAT brought by the appellant, making a claim of nuisance against the respondent and her husband, which were on foot from May to September 2023 and then again from September 2023. The claim of nuisance was based upon the pooling of water on the respondent’s property during rain events.

31. The magistrate referred to the content of photographs taken in March and June 2023 and on 18 November 2023. The reasons then continued: Photographs are taken in a variety of weather. They are taken on rainy days. They are taken on a day with hail. They are taken on sunny days. They are taken – there’s a photograph on the 8 August which appears to be taken into the back courtyard from the side street. Photographs appear to be taken from within the fence line, and although it’s difficult to assess for some of the photographs to what extent they’ve been zoomed in the CCTV footage from the [respondent’s premises] does depict [the appellant] with his arm over the fence line taking photographs into [the respondent’s] back yard. These photographs were taken by [the appellant] in circumstances where for many of them he was taking the photograph over the fence by getting a ladder and climbing up to the 2.3 metre high fence line and reaching his hand over to take photographs. These photographs occurred at various times of the day. Some were at 5.30, 7.00 am. Some were at 12.01 pm and 12.05 pm. There is also a photograph which depicts an observation made by [the respondent and her husband] from their child’s bedroom of a device coming over the fence to take a photograph from that position into their yard.

32. The magistrate then addressed the submission made on behalf of the appellant that it was perfectly legal for him to take photographs in the manner that he did in circumstances where he had an interest in the water flow from the respondent’s backyard, which was the subject of ACAT proceedings. She recorded the submissions made by the solicitor for the appellant that regard should be had to where the photograph was taken from, what use was intended of it and the existence of the ACAT proceedings. The magistrate’s reasons continued: I accept that in some of the photographs [the respondent] is taking photographs of matters which look as though they would have a bearing on water but these photographs are also taken in a manner where areas of the [respondent and her husband’s] back yard and into their houses were not obstructed, where people are visible in the photographs in the [respondent and husband’s] back yard, and where portions of the internal parts of their home are clearly visible. So the photographs have not been taken to confine themselves just, for example, to the gutter but to the gutter and the other context and the context involves taking the photograph over the fence and depicting what is really their private side courtyard and back yard.

33. The magistrate pointed out that although the photographs had not been posted publicly on social media or anything like that, they had been provided to the respondent and her husband with the consequence that “it has been communicated to them that they have been effectively surveyed [probably surveilled] in their back yard over an extended period of time”.

34. The magistrate recorded the submission made by the solicitor for the appellant that the respondent’s response was “entirely and utterly out of proportion and that his client was entitled to protect his rights and that he was doing so in a very reasonable and limited way”. There was then a discussion of the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199. The magistrate recorded that the fact that conduct may have been otherwise lawful did not mean that it could not amount to personal violence.

35. The magistrate identified the issue that she needed to consider as follows: … What I have to consider is whether there was a reasonable basis for [the respondent] to feel offended by the course of conduct that was engaged in by [the appellant] of taking photographs into her back yard.

36. Her reasons continued: … Ultimately, this is an issue which members in the community may have views about, about whether this conduct amounts to intimidating, harassing or offensive behaviour. My view is that even if the photographs that were taken by [the appellant] of the [respondent’s] private court yard were incidental to his primary purpose, he is still photographing into their – what is objectively their – a private area of their back yard. The manner in which those photographs were taken were, in all the circumstances, in my view harassing and offensive, in the sense that the [respondent and her husband] had no knowledge of the photographs being taken. They were taken into a private area, beyond their gate, into their side and back courtyards. There was no notice provided to [the respondent and her husband], through a lawyer or any other communication about the taking of the photographs. There was extensive photography in various conditions. It’s not a case where [the appellant] took one or two photographs to depict the water pooling but the photography was much more extensive than that and involved photographs of various things, including the decking work, the oven, the vegetable garden being made and other types of matters. There were numerous photographs that were taken and the photographs – the taking of the photographs involved putting his hand over the fence and standing on a ladder at a high point, at a 2.3 metre photograph. [The respondent] has given evidence that the impact of finding these photographs, having been taken has been harassing and intimidating to her and has affected her children. And, in my view, it is reasonable to imagine these impacts would occur in circumstances where one is not sure when one’s neighbour is going to be standing on a ladder and taking photographs into the back yard, including photographs that depict the windows where particular parts of the inside of the house are visible on those photographs. So, ultimately, I am satisfied that at least that conduct was offensive in the sense that it did give offence and caused annoyance and umbrage, and insult really by [the respondent]. And, in my view that was, as I say, reasonable when I consider what reasonable community expectation is about the privacy of the person’s back area of their yard which is, of course, not to say that [the appellant] may have an interest in the course of water flow from one property to another he may have an interest in that issue.

37. The magistrate considered the position following the service of the interim personal protection order on either 8 or 9 December 2023. She found that there were photographs taken on 19 December 2023 and 13 January 2024. In relation to the appellant’s explanation for those photographs, she said: … I did not find [the appellant’s] explanation of why he continued to take photographs, in particular, from the front street to be compelling.

38. She referred to the various aspects of the appellant’s explanation. She then referred to the evidence given by the respondent, recording that in some respects “her evidence has been quite emotional”.

39. The reasons then continued: But, ultimately, this case really requires me to be satisfied that there has been personal violence and I am satisfied, in particular, in relation to the photographs. And that’s an issue which there is independent records of and I place weight on that and I have given consideration to [the solicitor for the appellant’s] arguments that his client was entitled to take those photographs because of the water issue. And I, ultimately, do reject that because, in my view, the community does expect that a person’s back yard is private and that a person’s house will not be photographed. Inside their house will not be photographed through the windows and their property will not be photographed without some kind of process that is agreed on beforehand where a person understands when the photographs will be taken and understands the purpose and has some control over whether they are, in fact, being surveyed in their back yard. So, ultimately, I am troubled by the explanation that I heard from [the appellant] about taking photographs afterwards I found to be convoluted and there were various things that were explained as the reasons why he insisted on taking the photograph. Ultimately, though, at the point that that photograph was taken in January, [the appellant] was aware that [the respondent] and her family were very concerned by his photography of their premises, and I ultimately do not think that taking that photograph was justified in circumstances where I find that it is offensive to take a photograph of their personal property, and he was certainly aware of their subjective view and the subjective impact of that. So I am troubled by those two occasions on which after the interim personal violence order was made there were photographs taken.

40. She said that she was “not satisfied that the first two incidents necessarily amounted to … personal violence”. This appears to be a reference to the 21 March incident and the pizza incident on 3 June 2023. However, she said that the photography “demonstrates a disregard for his neighbours’ privacy”. The reasons then continued: So I am satisfied there has been personal violence. The next question is whether he may engage in personal violence if the order is not made. [The appellant] did give some sworn evidence agreeing there was no reason to have contact with [the respondent], but he did also give evidence that if he needed to, if there was rain and there were relevant water flow issues then he would take photographs. And that it was necessary to get on the ladder in order to do so from his property. Ultimately, in determining whether he may engage in personal violence I do place weight on the fact that despite the fact that there was an interim order there have been two occasions on which photographs have been taken. I understand that the second set of photographs was taken from the front street, rather than over the fence in the way the other photographs had primarily been taken. But, ultimately, I am satisfied that he may engage in personal violence during that time if I don’t make the order, so I am going to make a protection order today. And I intend to make it for a period of 12 months. I don’t know if the parties want to be heard about the conditions of the order …

41. There was then a discussion with the parties over nine pages of transcript before the terms of the restrictions in the order were pronounced and the proceedings ended.

Abuse of process argument

42. The respondent submitted that the maintenance of the appeal amounted to an abuse of process, because the order in relation to which the appeal had been brought had expired well in advance of the hearing of the appeal. The appellant submitted that the appeal was not an abuse of process because whether or not there had been a valid protection order in place would be relevant as a matter to be considered in relation to any future application for a protection order. That was because s 11 of the Act provides that, in deciding whether to make a protection order, the Magistrates Court must consider, inter alia, “any previous protection order made in relation to the respondent”. Further, it was submitted that the existence or otherwise of a protection order may be significant for the respondent in the event that he was required to obtain or maintain a security clearance. The evidence disclosed that he was an Executive Level 1 in a Commonwealth government agency.

43. I accept that although the utility of any appeal is limited, it could have some practical significance for the appellant and respondent because of its potential relevance to the making of future orders, and because of the potential for it to affect the appellant’s employment or prospects of employment.

44. The case is distinguishable from TS v DT [2025] ACTSC 215. In that case, there was an attempt to re-agitate legal issues that had been previously determined by the Court of Appeal and the expired order which was the subject of the appeal had been replaced by a subsequent order. There was therefore no prospect of relief being granted, even if an error could be identified: see TS at [22].

45. For those reasons, I do not dismiss the appeal on the ground that it is an abuse of process.

Statutory provisions

46. The statutory provisions most relevant to the grounds raised in the appeal are the definition of “personal violence” in s 8 of the Act, and the identification of the grounds for making a personal protection order in s 26 of the Act.

47. Section 8 provides: 8 Meaning of personal violence (1) In this Act: personal violence means any of the following behaviour by a person in relation to another person: (a) physical violence or abuse; (b) sexual violence or abuse; (c) threatening behaviour; (d) stalking; (e) harassing, intimidating or offensive behaviour; (f) damaging property. …

48. Section 26 provides: 26 Final orders—grounds for making The Magistrates Court may, on application, make a final order if satisfied that the respondent— (a) for a personal protection order— (i) has used personal violence in relation to a person; and (ii) may engage in personal violence in relation to the person during the time the order is proposed to operate if the order is not made; or (b) … Note 1 The court must consider the matters mentioned in s 11 in deciding whether to make the final order. Note 2 This section does not apply to consent orders (see s 25 (2) (b)). Ground one

Submissions

49. The appellant submitted that it was not reasonably open for the magistrate to conclude, in the circumstances of the case, that taking photographs for civil litigation purposes could amount to “harassment, intimidation or be offensive behaviour”. He submitted that the conclusion of personal violence was arrived at by a “narrow view of privacy without considering all of the circumstances”. The circumstances pointed to were that the photographs were taken “only for use in civil proceedings” and any photographs which incidentally captured a window were not such as to make their taking offensive.

50. Quite a number of the submissions made on behalf of the appellant are critical of the reasons and the extent to which the magistrate tied her conclusions back to particular aspects of the evidence. There was, however, no ground of appeal relating to adequacy of reasons.

51. The submissions addressed the pizza oven incidents, the workman incident, and the photographs taken by the appellant.

52. So far as the pizza oven incidents were concerned, the submissions noted that the magistrate was not satisfied that the incidents amounted to conduct which was harassing, intimidating or offensive.

53. So far as the workman incident is concerned, the appellant submitted that the finding that the entry without permission into the premises transgressed a normal boundary and “in that sense” was offensive was not reasonably open. The submissions noted that it was not clear what role this conclusion played in the magistrate’s ultimate finding, as it was not subsequently mentioned and the express finding of personal violence was “in particular in relation to the photographs”.

54. The appellant then dealt with the issue of the photographs which the submissions framed by reference to the ACAT hearing. That hearing took place on 28 May 2024, and the decision by the ACAT that the appellant’s application be dismissed was made on 17 June 2024. So far as the photographs were concerned, the submissions of the appellant made the following points: (a) The appellant had concerns about matters on the respondent’s premises that may have caused water problems. (b) The taking of the photographs which were disclosed proximate to the ACAT hearing could not have caused any harassment, intimidation or offence until they were disclosed. This could not be harassing because it was not continuous. Nor could it have met the definition of intimidation. (c) Having conceded that she did not have sufficient information to fully understand the relevance of the photographs, the magistrate made some observations about their content without identifying which photographs were being referred to. (d) If the magistrate found that taking some photographs would not be offensive, then she was obliged to identify which ones were and which ones were not. (e) Insofar as the magistrate relied upon the impact on the occupants of the respondent’s house in that they were not sure when the appellant would be taking photographs, that could not amount to personal violence. It could not be harassment, intimidation or offensive to possibly take photographs. (f) The reasons did not clearly identify the basis for the ultimate conclusion that the conduct was offensive. (g) The conclusion that the community expects that a person’s backyard is private and that their house will not be photographed through the windows was not a reasonable conclusion to reach in the context of a civil dispute over water damage.

55. In oral submissions, counsel for the appellant also pointed to the fact that a security camera in the backyard of the respondent’s property captured private areas at the rear of the appellant’s property in addition to the rear courtyard of the respondent’s property. Before the magistrate, the submission was made that there was a double standard at work in the use of the security camera on the one hand and the complaint about the appellant taking photographs on the other.

56. The respondent contended that the appellant’s submissions were inconsistent with the actual findings made by the magistrate that the appellant had taken extensive photography in various conditions and that, even if the conduct was lawful, that did not mean that it could not amount to personal violence. The respondent’s submissions also disputed the proposition that the taking of photographs which were not disclosed could not amount to personal violence. The respondent invited the court to examine the videos and photographs taken so as to understand the extent of the footage of her property. She submitted that the appellant had never asked for permission to take photographs of the house or of visitors, had never informed her of his intention to take the photographs and videos, had done so on clear, fine days that had no relevance to the civil dispute concerning drainage, and had taken photographs as early as 5:30am. She also pointed out that following the service of the interim personal protection order, the appellant was proven to have been taking photographs or videos covertly by sliding his phone over the fence. The respondent also pointed to the outcome of the ACAT proceedings which involved the appellant’s claims being dismissed by the ACAT and the ACAT Appeal Tribunal.

Decision

57. At the level of overview, the relevant chronology is as follows: (a) 21 March 2023: workman incident; (b) mid-April 2023: first pizza oven incident; (c) 3 June 2023: second pizza oven incident; (d) on at least 10 August, 12 and 14 September, 8 October, and 13, 29 and 30 November 2023: photographs and videos evidencing conduct of the appellant taking photographs or videos of the rear areas of the respondent’s property; (e) 7 December 2023: respondent applies for personal protection order; (f) 8 December 2023: interim personal protection order made; (g) 19 December 2023 and 13 January 2024: appellant takes photographs from the front of the respondent’s house; (h) 28 May 2024: hearing in the ACAT (49 photographs of the respondent’s rear yard disclosed by the appellant sometime prior to this hearing); (i) 17 June 2024: ACAT decision dismissing appellant’s application; (j) 2 July 2024: hearing in the Magistrates Court; (k) 5 September 2024: further hearing in the Magistrates Court; and (l) 30 October 2024: final hearing in the Magistrates Court and personal protection order made.

58. The definition of personal violence is extremely broad. It covers a range of matters which are not “violence” in any ordinary sense. At the broadest reach of the definition is “offensive behaviour”. As offensive behaviour is not defined, the magistrate referred to dictionary definitions. There is no challenge to that approach or the definitions extracted. Relevantly, those definitions included “having your feelings hurt, especially because someone has been rude or showed a lack of respect” or “giving or meant to give offence or insulting”. This has the potential to capture a wide range of conduct. The breadth of the definition of offensive behaviour is such that there is likely to be more room for debate, where it is the only personal violence relied upon, as to whether, as a matter of discretion, the making of a protection order is appropriate than in a case involving, for example, physical or sexual violence. However, that does not detract from the breadth of the definition.

59. The submissions of the appellant do not seek to challenge any of the primary findings of fact made by the magistrate. Rather, the challenge is as to whether those facts are sufficient to permit them to be characterised as offensive behaviour for the purposes of the definition of personal violence.

60. I do not accept the submission that part of the 21 March 2023 incident was found to be personal violence for the purposes of her decision. It, along with the pizza oven incident, were the two incidents which at the end of her Honour’s reasons, the magistrate indicated were not personal violence event though “there was clearly an emotional situation between the neighbours”.

61. Consistent with the approach taken before the magistrate, the appellant characterised the conduct of the appellant photographing and videoing the rear of the respondent’s premises as being entirely within his legal rights and acceptable, having regard to the existence of a civil dispute over water drainage from the respondent’s property. Although the mere photographing of a neighbouring premises may not constitute an actionable infringement of a proprietary right (see Victoria Park Racing and Recreation Grounds Company Ltd v Taylor [1937] HCA 45; 58 CLR 479), that fact does not prevent a course of conduct that involves such photography from being offensive within the meaning of the Act. I do not accept that the appellant’s characterisation of the nature of his conduct is complete or demonstrates any error on the part of the magistrate. The submissions of the appellant failed to give appropriate weight to the following features of the conduct: (a) it involved taking photographs of the private areas at the rear of the respondent’s house without permission from her or her husband; (b) while many of the photographs occurred during rain events, some of them did not; (c) the photographs were taken at various times, including in the early hours of the morning; (d) it included conduct undertaken overtly in the presence of the respondent or her husband even though it was clear, from the circumstances, that it was done without their permission (see videos 9 and 12 and Exhibit 1); (e) the exercise in photography involved the appellant climbing up above the 2.3 m high fence in order to be able to direct his camera down upon the private spaces of the respondent and on occasion leaning over the top of the fence towards the respondent’s house; and (f) the conduct occurred in the context of an acrimonious relationship between neighbours, in which the appellant had demonstrated his anger towards the respondent and had entered the respondent’s courtyard on 21 March 2023 in circumstances which indicated a “degree of entitlement” on his part.

62. Collectively, these features of the appellant’s behaviour permitted the magistrate to conclude that the pattern of conduct in taking photographs of the respondent’s premises was offensive behaviour in the sense that it demonstrated rudeness and a lack of respect, and gave offence to the respondent. The previous provision in August 2022 by the respondent’s husband by text message to the appellant of a single photograph of water pooling in the area adjoining the appellant’s premises did not provide a licence for the course of conduct engaged in by the appellant or change the appropriate characterisation of that course of conduct.

63. It was not essential for the magistrate to identify which photographs amounted to offensive behaviour and which were not offensive. The issue was whether the course of conduct as a whole constituted offensive behaviour, and as I have indicated, that was a characterisation which was reasonably open to the magistrate. It was clear that the magistrate was correct in concluding that “there was extensive photography in various conditions” and correct in the balance of the findings in that paragraph of her reasons which I articulated earlier: see above [36]. That is demonstrated by the photographs which became Exhibit 3. In particular, the photographs include photographs of people in the back garden in clear weather, and photographs which include views towards glass doors and windows. There are photographs taken of the private property of the respondent on 19 December 2023 during the operation of the interim personal protection order. There were 49 other photographs of the respondent’s property put into evidence. Some of those were taken in rainy weather, some of them were taken while the dividing fence was being built, but they all indicate a course of conduct and a lack of respect for the privacy of the rear areas of the respondent’s property.

64. The magistrate heard all of the evidence, including the evidence of the appellant and the respondent. This gave her the benefit of gaining an impression of the appellant and respondent during the course of their examination in chief and cross examination, particularly when the appellant and respondent addressed each other directly during the course of the cross examination of the appellant. Even though this court, reviewing the evidence, has had the opportunity to watch and listen to the videos that were put into evidence, and hence gain an impression of the attitude and temperament of the parties, it is clear that the magistrate had significant advantages over this court in undertaking the characterisation exercise as to the nature of the conduct engaged in by the appellant. No error has been demonstrated by the conclusion reached by the magistrate. I do not accept the submission that it was not reasonably open in the circumstances of the case to find that the course of conduct engaged in by the appellant amounted to offensive behaviour.

Ground two

Submissions

65. The appellant submitted that there was no reasonable basis for the conclusion reached by the magistrate that the appellant may engage in personal violence in relation to the respondent during the time the order was proposed to operate if it was not made. The appellant submitted that it needed to be more than a remote possibility, and that it was unclear how the magistrate related the two incidents that were said to have taken place during the period of the interim order to her conclusion. Further, he submitted that the incidents took place in January 2024, and the judgment was only given on 30 October 2024. He referred to the statements that he had made to the effect that he had no need to take further photographs for his ACAT appeal. He submitted that it was incumbent upon the magistrate to say why she thought the threshold was met, but she did not do so.

66. The submissions of the respondent identified that the statements made by the appellant as to no longer needing to take photographs for his ACAT appeal were made after the magistrate had given her decision, including recording that she was satisfied that he may engage in personal violence if she did not make the order The respondent contrasted that statement with what he had said under oath in examination-in-chief, to the effect that he may need to take photographs and would get on the ladder to take the photographs. Decision

67. For the reasons that follow, it was reasonably open to the magistrate to reach the conclusion that the conduct which she had found constituted offensive behaviour (and hence personal violence) may continue if the order was not made. She was entitled to reach the conclusion that the appellant “may engage in personal violence in relation to the [respondent] during the time the order is proposed to operate if the order is not made”: s 26(a)(ii) of the Act.

68. That is because the magistrate found that “he did also give evidence that if he needed to, if there was rain and there were relevant water flow issues then he would take photographs. And that it was necessary to get on the ladder in order to do so from his property.” This was based upon evidence that had been adduced from the appellant in re-examination in which he had also indicated that he had lodged an appeal from his unsuccessful ACAT application. The evidence was consistent with an intention to continue to act as he had because he considered he was justified in doing so. The statement as to his justification for acting as he said he would in the future was the very same that he had given for engaging in the course of conduct which the magistrate had found constituted offensive behaviour.

69. The magistrate was addressing a circumstance in which there was an acrimonious relationship between very proximate neighbours and where the underlying source of tension between the neighbours had not been resolved. She also had evidence before her of photographs being taken on 19 December 2023 and 13 January 2024 in relation to which she did not accept the appellant’s reasons for taking these photographs, and she was “troubled” by the explanations she had been given. She therefore placed weight “on the fact that despite the fact that there was an interim order there have been two occasions on which photographs have been taken”. She also had the benefit of observing the conduct and attitude of the appellant as demonstrated in the video evidence that became Exhibit 1 in the Magistrates Court. That evidence tended to demonstrate an entitled attitude on the part of the appellant to the intrusion upon the privacy of the respondent. All of this was sufficient to establish that the appellant “may engage” in such behaviour in the period of the order. There was a very real prospect of such conduct and certainly not only a remote possibility as suggested by the appellant.

70. No error is demonstrated by this ground of appeal.

Orders

71. The two grounds of appeal that were pressed have not been established. The appeal must therefore be dismissed. The respondent was self-represented, did not attend the hearing and her written submissions did not seek any costs order. In those circumstances, there will be no order as to costs and it is not necessary to consider whether and in what circumstances the court could or would order costs in a matter such as this.

72. The orders of the Court are: (1) The appeal is dismissed. (2) There is no order as to costs.

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: