Cullen v Dyer

Category: Principal judgment

Parties: Benjamin Shane Cullen (Appellant)
Ian Donald Dyer (Respondent)

Representation: Solicitors:
Mr Cullen for the Appellant
Spice Law for the Respondent

File Number(s): 2023/00432093

JUDGMENT

Introduction

1. Mr. Cullen, the appellant, appeals the decision of a magistrate dismissing his application under s19 of the Crimes (Domestic & Personal Violence) Act ("the Act") for an apprehended personal violence order. He also appeals the making of a costs order against him. The defendant on the application was Mr Dyer, the respondent.

2. Such an appeal is conducted pursuant to the provisions of section 18 of the Crimes (Appeal and Review) Act 2001 (CARA). The basis of such an appeal is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and can be summarised as follows (the following summary has been adopted from various previous judgments; see eg McMahon v R [2024] NSWDC 693):

(a) An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) CARA. CARA permits further evidence by leave per ss 18(2) and 19. (b) The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18] (c) The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24] (d) The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. (e) The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44].

3. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1 as the “correctness standard” which was his Honour’s way of describing the standard being spoken of in Fox v Percy.

4. It is instructive to note what was said by Bell P as he then was from the case of McNabb at [25]:McNabb [2021] NSWCA 298

“the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant’s guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance.”

5. His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit “some legal factual or discretionary error” citing Allesch.

6. The material relied on for the appeal was agreed between the parties and became exhibit A and also includes the transcript of 21 August 2025 when the matter was heard and decided.

7. As is often the case in these matters the notice of appeal does not disclose the grounds of appeal. When the matter was heard it became apparent that the appellant wished to challenge a ruling by the magistrate that certain text messages he tendered at the hearing were irrelevant and inadmissible. I permitted the appellant to forward copies of those messages following the hearing to allow me to consider their relevance and whether I considered the magistrate’s decision in rejecting them as being the correct decision. Those messages have been marked exhibit B on this appeal.

8. What the appellant was required to prove on the balance of probabilities was that, pursuant to s19 of the Act, that he had reasonable grounds to fear and in fact feared violence or intimidation by the respondent, and that the conduct in question, in the opinion of the court, is sufficient to warrant the making of the order.

The parties position on appeal

9. The appellant provided some written submissions, both in chief and in reply. In this case, it is simplest to deal with these submissions prior to outlining the evidence.

10. The appellant is acting for himself and I make some allowance for that, however some of the submissions are simply not relevant, referring for example to an earlier case of assault involving someone other than the respondent. More relevantly he criticises a statement of a Ms. Robbie Pateman asserting it contains falsehoods such as that he suffers an undiagnosed psychotic disorder contrary to hospital records. A submission is also made about a statement by a witness named Cheryl Coleman. The submission does not really extend to a challenge to some part of the magistrate’s reasoning but rather seeks to assert that prior to the events in question the appellant was friendly with Ms Coleman. In assessing the evidence, and in considering the magistrate’s reasoning, this submission will be taken into account. In relation to the witness Ms Pateman the appellant complains that a text was omitted from her witness statement. The appellant clearly knows of this text, and there is nothing to suggest he could not simply seek to cross examine on it. The submission does not assist him.

11. The appellant criticises the magistrate for allowing the lawyer for the respondent to open and call witnesses first. He also criticises the magistrate for confining answers to yes and no and says the defendant’s lawyer was prepared for this and he was not. A reading of the transcript shows the applicant’s evidence was taken first, and that there was then cross examination of the applicant.

12. There is reference in the appellant’s submissions to the magistrate commenting on the “cheap” hourly rate of the respondent’s solicitor in the course of the cost application, so after the judgment had been given on the AVO application. There is nothing in this.

13. Reference is made to section 316 of the Crimes Act 1900 and section 136 of the Police Act 1990*.* The first of these provisions creates the offence of concealing a serious indictable offence; the second deals with the conduct of an investigation by police. Whilst in the material there is some reference to a complaint to police, there is no submission based on these provisions seeking to impugn the magistrate’s decision.

14. There is then a further document in a different type which would appear to be further submissions possibly as at the hearing from the appellant which in effect makes submissions as to why certain statements of different witnesses are misleading. Again there is absent any reference in the submissions to how it connects with the magistrate’s reasoning.

15. Other evidence included a number of E records of police, and the AVO application of Ms Pateman which also sets out a version of events of 2 October 2023. In other words Ms Pateman, a witness called by the respondent, sought an AVO against the appellant due to the same event the subject of these proceedings. The papers suggest that AVO application was withdrawn. To the extent this may be relevant, it would be the subject of cross examination of Ms Pateman, referred to below.

16. There was also evidence of a complaint made by the appellant to the Law Enforcement Conduct Commission concerning police behaviour. The complaint concerns the events of 2 October 2023. This case of course needs to be decided by the evidence before the magistrate and whilst that evidence appears to have included this letter it would be more reliable to consider the statement of the appellant as tested in cross-examination.

17. The respondent in his submissions says the decision to dismiss the AVO was plainly correct for the following reasons: the appellant’s evidence did not identify that it was the respondent that allegedly assaulted him and that three witnesses including the respondent gave consistent accounts of markedly different circumstances to those alleged by the appellant, and which were of the appellant being the aggressor and to the effect that any force used by the respondent was defensive and moderate. It was submitted that there was no pattern of ongoing behavior and this was an isolated incident and no conduct had been established to support the assertion of the appellant being fearful.

18. The evidential rulings are said to be correct for evidence of other proceedings and complaints are irrelevant.

19. As to the costs matter the respondent says the magistrate was correct to find the proceedings frivolous or vexatious given her findings of failing to make out the assault and the attempt by the appellant to use the proceedings to leverage a settlement of $7000.

20. The appellant in reply makes some irrelevant submissions, for example referring to the other party, the respondent, as being represented by the same solicitor on some other occasion relating to an assault.

21. It helps to understand this matter to realise that the events occur on what is referred to as a multiple occupancy in the hinterland region not far from Murwillumbah, and the evidence discloses that at the time of the alleged assault there had been a deterioration in the relationship of the appellant and other members of the community, including as between the appellant and Ms Coleman and Ms Pateman.

22. In his reply submissions the appellant challenges the finding that he was not relevantly in fear of the respondent. He factually challenges the finding that he attempted to break into the relevant property. In that regard he relies on “medical reports that were set aside”; there are some medical documents in evidence including a doctor’s letter of 12 March 2021 as to the health of the appellant but whether that is what is being referred to is not clear. The date of the events relied on by the appellant for the AVO was 2 October 2023, some 2 ½ years later, so without some elaboration in the submissions, it is difficult to see how that would assist.

23. It is said there was a finding of the magistrate that the respondent had not been identified as the assailant on the version of events given by the appellant, and that finding is challenged.

24. He disputes the finding concerning his demand of the respondent for $7000 which he asserts was an amount he would accept under the victims of crime legislation.

25. The appellant asserts that the magistrate should not have found that she could trust the police. It is not clear just what this is referring to, and no reference is given to the transcript. It is difficult to see how trusting or not trusting the police could be a factor in determining a case where the evidence consisted only of lay, non police, witnesses.

26. There is a reference to what is referred to as the “silverside” complaint which would appear to be a separate occasion and where the appellant expresses dissatisfaction with police behavior in that regard. That similarly is irrelevant.

The appellant’s case

27. The appellant relied on a statement dated 13 May 2024. The practice of the Local Court is that the statement of evidence is adopted in the witness box and becomes the evidence in chief, and cross examination follows.

28. The appellant states he lives in a multiple occupancy in Bray’s Creek. He says he has two brain injuries which contribute to memory loss. He has known the respondent for 10 years due to the property and they had been close friends. He had also been friendly with Cheryl Coleman who also lives at the property. The respondent’s lot is 200 m from the appellant’s. The appellant drove to the respondent’s lot on 2 October 2023 and stopped 50 m from the front door. As he did so he says he was told to “fuck off” by the respondent, that the appellant continued to walk up to the closed door and knocked on the door. He then stepped to the left to be in front of the window and could see the respondent and asked what was going on. He says he turned around and started to walk away when he felt a weight like someone on his shoulders which caused him to fall forward onto the timber walkway, with his arm hanging over the walkway. He says his shirt was ripped off as someone lifted him up and he yelled help four times. He says he got up and staggered to his car but didn’t make it and sat on the ground. The respondent walked past him and placed the appellant’s phone on a timber post about 10 m from the appellant; in other words he seems to be returning the phone that presumably fell on the ground. As the appellant walked to his mobile phone he saw Ms.Pateman standing in the middle of the respondent’s driveway. The appellant rang for an ambulance and as he was doing so he says Ms. Pateman came up and yelled that the appellant was making things up. The operator wanted Ms. Pateman’s details and the appellant gave the phone to her to do so which she did, and then handed the phone back to the appellant.

29. The police arrived with one officer allegedly saying stop “bunging it on”. At hospital the appellant says he was treated for several small cuts on his arms, armpit and left leg. He returned home after a week.

30. Also in the bundle (exhibit A) is what seems to be a chronology (first date referred to is 12.8.23, apparently the AGM for the multiple occupancy company) prepared by the appellant of events predating 2 October 2023 and postdating it. Prior to October 2023 there is no reference to the respondent.

31. As to the issue of the rejected text messages the documents provided after the appeal hearing (now exhibit B) by the appellant are dated from 1 August 2023 and end on 2 October 2023, the day of the incident, and there is then a further three pages of messages starting on 10 November 2023 and appear to go to 12 November 2023 and then they deal with the month of October specifically the 17th and 18th of October and then some dates in August and June, before ending on 9 November 2023 with all dates being 2023. The first of these messages in August 2023 concerns the person Robbie who did not press her AVO and would appear to at first reflect some consensus between “Robbie” (Ms Pateman) and the appellant concerning some issues of the community. The texts then reflect some deterioration in relations as Robbie says “stop your abusive attacks and treat me with respect”. The note of 2 October 2023 is timed to be 12:42:27pm and appears to be written before the incident as it makes no reference to it.

32. Subject to what may be disclosed by the transcript it is difficult to see how these text messages are relevant other than to demonstrate that there was some ill feeling by Ms Pateman and the appellant towards each other and may perhaps give some weight to the suggestion that the person who jumped on the appellant, as he alleges, was not the respondent at all, if indeed that is what happened.

33. The next pages in the material appear to be messages sent by the appellant to a man named Coriban and seems to be discussing the business of the board of the property so far as it related to the difficulties the appellant was having with Robbie, ie, Ms Pateman, amongst other things. These messages perhaps give some context of the dynamics of the community's governing board. In that regard they may have some peripheral relevance and I would admit them as evidence. I would note that the problem may be for the appellant is that it really just shows that he is something of a antagonist rather than a victim.

34. A further series of texts of one page involving “Cheryl” (Ms Coleman) is then annexed which is in the same vein as the earlier messages concerning the person referred to as Coridon, and which other evidence shows is a Mr Coridon Bliss.

The hearing

35. Notable aspects of the transcript are as follows:

(a) The magistrate identified with the appellant his documentary evidence. Some evidence was identified by the magistrate to be irrelevant such as his letter to the Law Enforcement Complaint Commission concerning the Ms. Pateman matter. (b) The magistrate read without apparent objection the statement of the appellant dated 13 May 2024 and noted that he does not identify the respondent as the person who he says jumped onto him from behind. That said I would note the statement says the first person he says he actually saw after that happened was the respondent walking past him to place his mobile phone on a timber fence post about 10 m from where he was or had come to sit. He then at the same time but shortly after sees Ms Pateman. (c) Some documents were rejected for example a document referring to an alleged assault at a subsequent time about which nothing has been said on this appeal. Photographs were allowed but do not appear in the appeal bundle. A complaint to New South Wales police was held to be irrelevant. A photo of a bushfire warning notice board which is in the bundle was allowed because in addition to being a bushfire warning the notice board displays a reference to extortion which as I understand it is the respondent’s response to the appellant asking for $7000 to settle the “AVO claim”. (d) At the conclusion of going through the documents at T12 the magistrate summarises the appellant’s evidence position, namely, in effect, that what it amounted to was the statement from the appellant asserting he had been struck from behind and that he thinks it was the respondent (which I note is something not said in the statement but said at the hearing). (e) In the exchanges between the appellant and the magistrate it diverged to discussing whether he could appeal a different magistrate’s decision refusing him leave to issue an application against Ms. Patemen which then progressed to the discussion as to the texts referred to above. That issue is not raised in this appeal. (f) The general medical history of the appellant which he sought to rely on was rejected as irrelevant though I would note the photographs showing the purported injury were allowed, but they are not in the appeal papers. No mention was made of this at the appeal hearing. (g) The magistrate at T15 summarised the appellant’s case by reference to the statement he made to police detailing him standing more or less on his veranda or near “his” place being a reference to the respondent’s place, that the appellant turned to walk away, and someone pushed him over. The appellant does not name that person in the statement and there are some photographs of the injuries suffered. (h) The respondent then indicated he would rely on statutory declarations from himself, Ms. Pateman, Ms. Coleman, Chananporn Dyer (his wife), Coridon Bliss and a further statement of Ms Pateman. Those documents were not in the appeal bundle. Amongst the court file I have located the two statutory declarations of Ms. Pateman dated 21 January 2025 and 5 August 2025, a statutory declaration of Mr. Bliss dated 30 July 2025, and statutory declarations of Mr Dyer, Ms Coleman and Mrs Dyer, which appear to have all been marked MFI or exhibit 2.

36. I note that the submissions of the appellant do not refer to all of these statements, but only the statements of Ms Coleman and Mrs Dyer and one of the statements of Ms Pateman. The respondent referred only to the statements of Mr and Mrs Dyer, and Ms Coleman.

37. I note part of the evidence included an audio recording at a time shortly after the alleged event and was tendered through the evidence of Ms. Pateman. That audio was not provided for the appeal.

38. The appellant was then cross-examined. He agreed he was at the property and agreed that he had been told to “fuck off” but then proceeded to knock on the door and asked what’s the problem.

39. It was put to him that he then shoulder-barged the door and he denied it; that he tried to get his arm inside the door and succeeded to the point that he grabbed the respondent by the back of the neck, all of which he denied. It was put that the respondent pushed him off to stop him entering which he denied. He denied that they both fell down and said only he fell down.

40. He denied that his phone had been later picked up and returned to him by the respondent and said that the respondent picked it up and put it on the first post at his gate. The issue seems to be not whether the phone was returned, but whether it was returned to him, or placed nearby.

41. He denied staying on the driveway and shouting. He says he saw Ms. Pateman but that it was he on the phone to 000 not her.

42. He accepted that he made an offer to settle the case for money namely $7000 which he said was based on the criminal compensation you can get in these situations. He went so far as to say that he was trying to get $7000 from each of the respondent and Ms. Pateman. A number of considerations arise from the fact of the appellant seeking to “settle” the AVO application for money; for present purposes one consequence of it is that it suggests the appellant does not consider he needs the protection of the order, and is not relevantly fearful as required by s19 of the Act for an order to be made.

43. The appellant was asked whether he had any contact with “them”, people who I infer include Mr Dyer, and he said he did not believe so. The evidence was a bit confused as to just what was being answered here, for he did also say that “they” had contacted him.

44. This evidence obviously has a credit problem for Mr. Cullen given the money issue. He did however deny the contrary case put to him so that so far as he is concerned the matter in his case was as set out in his statement as noted above.

45. The respondent gave evidence. There was his statement referred to above, and he was cross examined. The key point of his statement, which is how the evidence in chief was taken in the Local Court, was as follows:

(a) The appellant drove into the respondent’s driveway at about 12:45 PM. Ms. Coleman was there and said she did not want to see him. The respondent told the appellant this and also to move his car as his wife needed to leave. (b) The accused ignored this and walked towards the house. (c) The respondent walked past the appellant and stood in front of him and told him to “fuck off” several times and then walked into the house and shut the door before the appellant could come in. (d) The appellant shouted aggressively that he wanted to speak to Ms. Coleman. The respondent again told the appellant to “fuck off” several times. (e) Respondent says that the appellant then stepped 4 or 5 metres away from the door and shoulder charged the door and that he was shouting but he can’t remember the words. (f) The respondent used his strength to hold the door shut but the appellant managed to get his arm inside the door so the respondent opened it and tried to force the appellant back. (g) Crucially it is said “Cullen grabbed me on the back of the neck. I was very concerned about my safety and that of the two women so I pushed him quite hard and we both fell to the ground”. (h) Following this the appellant walked back to his car and was shouting abuse. The respondent saw the appellant’s phone on the ground so the respondent picked it up and walked towards the appellant with the phone held out. (i) By this time Ms. Pateman had arrived. It is said she had called earlier about the shouting and noise and that the respondent asked her to call 000 the help which she said she had done. (j) The respondent was abusive to Ms Pateman. (k) The respondent says he handed the appellant his phone who he believes also called 000. The appellant then sat in the driveway refusing to move and shouting abuse. The respondent says he has had no contact with the appellant since 2 October 2023. (l) I note paragraph 4 of the statement refers to all this happening on 2 November 2023 which given the evidence overall, and the date just referred to, is clearly in the nature of a typographical error and about which no comment has been made.

46. In cross-examination it was put to the respondent that he jumped on the appellant’s back and grabbed his shirt and ripped it off and tried to drag him up the walkway. That was denied.

47. The respondent was asked about the phone and it was put to him that he put it on the gate post and he answered that he took it up to where the appellant’s car was to encourage him to leave.

48. It was put that the respondent did not give the respondent his phone and the answer was he did not want to get near him. He was asked if he put it on a guidepost and he answered close to the car, which I read to mean yes he put it on a gatepost, near the appellant.

49. Cheryl Coleman gave evidence and her statement was dated 22 January 2025. She was a retired radiographer aged 77. Ms Coleman had been friendly with the appellant at least until September 2023. In that month there was an incident which caused the appellant to become very angry with Ms. Coleman but she still permitted him in her house to use her computer. On that occasion the respondent was angry when he left.

50. As to the day in question she says she was visiting the respondent and his wife. She heard the respondent tell the appellant that she did not want to see him including telling him to fuck off. And that he was not welcome and that he was blocking the driveway and that Mrs. Dyer needed to leave. Mrs. Dyer was afraid and crying. Ms. Coleman was afraid.

51. The respondent came inside and shut the door. The appellant was pushing against the door and shouting. The appellant shoulder charged the door and she saw the respondent open it, the door opened and both men fell to the ground. They stood up and the appellant retreated back up the driveway. The appellant remained seated or lying on the driveway until police arrived.

52. In cross-examination when asked if she saw the appellant put his arm through the door she said no, saying “I saw an open the door a bit and push you (the appellant) away”. She denied the proposition put that she had promised to show the appellant a video of the respondent striking the front door. She agreed that she did take a video from inside the house that day of the respondent pushing the door. When asked to tell what happened that day she repeated what she had said in her statement namely the door was coming “this way”, she assumed it was being pushed by the appellant, the respondent opened the door and went to push him away and they both went down. She said they went down side-by-side almost and then scurried up and moved up the ramp. She saw the first 5 to 6 feet

53. Ms. Pateman then gave evidence. She is a 58-year-old retired wildlife curator. In her statement made 21 January 2025 she heard loud shouting and banging from her neighbors lot, the neighbor being the respondent. This was 12:50 PM. She rang him and he said call 000 which she did. She says the appellant was trying to get inside the respondent’s house, that the respondent told the appellant to go away, that the appellant tried to open the door where the respondent blocked him and pushed him away from the door.

54. At the hearing she adopted that statement together with a later statement of 30 July 2025. She gave evidence of an audio recording. That was played at the hearing but not transcribed. The magistrate took the view that the witness did not see what happened on the walkway so that I would infer the evidence outlined above is what she had been told by the respondent. In any event there is no cross examination and her evidence really does not add anything.

55. Next was the evidence of Mrs. Dyer. She was inside the house at the time of the incident. She said that Ms. Coleman said she was worried about the appellant and did not want to see him. She saw the respondent go out to ask the appellant to leave and heard the respondent tell him to fuck off a few times. Her husband, the respondent, came back into the house and shut the door. The appellant was at the window shouting that he wanted to see Ms. Coleman. The appellant moved away and came back and crashed into the door still shouting. The respondent opened the door as the appellant had managed to get his arm through the door and she saw both appellant and respondent fall to the ground and then stand up and saw the appellant walk back to his car.

56. When asked if he had any questions to put to this witness, bearing in mind her version of events is entirely consistent with respondent’s version of events (apart from making no mention of the appellant's hand around the respondent's neck) he stated “well Your Honor for moral reasons I did not subpoena [Mrs. Dyer] and I do not have any questions for her”. The appellant is clearly at a disadvantage in taking this approach. The result is Mrs Dyers evidence is unchallenged.

57. Coridon Bliss then gave evidence. His evidence goes to events after 2 October 2023 which goes to the issue of the appellant seeking money. The texts include statements that the appellant will suggest charges be filed against Ms. Pateman and the respondent in respect of false accusations and assault. After considering the statement the magistrate suggested there was no need for cross-examination because the documents annexed were not disputed to have come from the appellant. The appellant asked for a break and the magistrate said “you don’t have any questions? No I don’t think I could see any myself”, and the witness withdrew.

58. The defendant’s case then closed whereupon the appellant said he had subpoenaed 2 police officers. The magistrate stated that there is no suggestion these officers saw what happened and if evidence was to be given from then this should be in statements so she was not going to take any action about them not answering the subpoena.

59. When asked to put his argument to the magistrate the appellant said he had spoken the truth and had tried his best to get justice. The appellant said the system is dysfunctional and that he wanted protection and that the respondent had previously committed assault causing harm involving a person he named. He said he just wanted to be safe and wanted protection. That was the extent of his argument.

60. For the respondent it was said that the appellant was the person inserting himself into the position uninvited after having been asked to leave and that the respondent acted in response to the appellant’s aggression.

61. As to the appellant’s assertion that someone had jumped onto his shoulders and caused him to fall and then attempted to drag him by the shirt which was ripped, it was submitted there was no evidence to support that. It was said there were four statements that asserted the appellant was the one who went to the door, pushed on the door and then the respondent in an attempt to push him away went down. It was submitted the matter was an abuse of process.

62. In her reasons the magistrate refers to the appellant’s statement and also the recording on which can be heard an allegation by the appellant that “he assaulted me” being a reference to the respondent. On the recording that suggestion was immediately rejected by Ms. Patemen who said it was self-defense but she had not seen anything so that is put to one side. Inferentially, that would also mean the submission of the respondent of 4 statements saying the appellant went to the door, has been accepted as only 3 statements, as Ms Pateman was not there to see it.

63. The magistrate said that the evidence from the appellant’s statement did not assert that it was the respondent who jumped on him.

64. The magistrate then recounts the evidence set out above from the various witnesses namely the respondent, Ms. Coleman and Mrs. Dyer. The magistrate notes that neither Ms. Coleman nor Ms. Dyer said they saw the appellant grab the respondent by the neck. The magistrate nevertheless determined, having considered the two competing versions, namely the version given by the appellant and that given by the respondent and the 2 other witnesses, that she was not satisfied on the balance of probabilities that the respondent came up from behind and pushed appellant and grabbed him by the shirt. The magistrate made clear that she needed to determine whether she is satisfied on the balance of probabilities that the appellant’s case is established and she was not.

65. Despite the issue with the grabbing of the neck referred to above the magistrate went on to say that three people have given more or less the same account of an event of the appellant being the aggressor in trying to get into a house when told not to be there. She accepted there was a moderate amount of force which can be regarded as self-defense by the respondent.

66. Her Honour referred to the text messages making statements concerning people going to gaol for seven years and that he would accept some payments.

67. Her Honour stated it was clear to her that the appellant had become fixated on how the legal system might be able to assist him in relation to what is clearly a dispute in terms of management of the company that runs the community property on which this occurred.

68. Her Honour then referred to the offer to settle the matter for $7000 which she considered raised a grave concern, namely that the matter was not about a genuine fear for the appellant’s safety as a result of an actual act of physical violence but rather an abuse of process to achieve a payment to resolve the proceedings in circumstances where the police had refused to charge the respondent.

69. With those finding the application was dismissed.

70. There was an application for costs on the basis of the application being vexatious. It was put that it would appear there is an issue with the governance of Palmview Hamlets and the appellant decided to take that grievance through the courts and onto the people around him. It was said the appellant appears not to be well and his judgment has been clouded.

71. In arguing against the cost application the appellant said he had spoken the truth and had been honest and it was not fair. He proceeded to make a number of comments that seem rather irrelevant and not supported by any evidence such as that “they” had him down as having an AVO against children which he said was not true. He said he made complaints about police. He said he was broke.

72. In deciding the costs argument the magistrate said for a costs order to be made she needed to be satisfied that the application was frivolous or vexatious. She referred to the evidence seeking to resolve the proceedings for $7000 which her Honour said would suggest he did not actually have any real fears for his safety. Such a proposal is one she had never heard before.

73. Her Honour took the continuation of the case in the face of there being three statements contradicting consistently the appellant’s case and his decision to proceed made her think there is something vexatious about the matter. The evidence of Mr. Bliss confirmed her view of the vexatious nature of the matter. That correspondence showed the appellant constantly threatening to use the justice system process against various persons because he was unhappy about decisions they had made concerning the community property.

74. Her Honour also found the proceedings to be frivolous on the basis that the appellant could not say he saw that it was the respondent, on his version, that jumped on him. She concluded by saying it appears the appellant is “using the justice process, bits of paper, subpoenas, APVOs etc. to in some way gain an advantage in relation to his grievances against the management of the company”.

75. The costs order was made in the sum of $10,450.

Determination of appeal

76. At the outset of these reasons I set out the principles relating to the conduct of a section 18 appeal. On the more narrow view of requiring an appellant to identify some error in the magistrate’s reasons, I have sought to set out the appellant's arguments above as best as they can be determined.

77. Those arguments and submissions do not really advance a proper appeal. In fairness to the appellant he does seem to have some difficulties appreciating how to present his case and how to identify the issues.

78. The matter can be dealt with by taking the broader view, of considering the evidence and determining whether the magistrate has made the correct decision. For that reason I have set out the evidence and the magistrate's reasons in some detail.

79. In short the magistrate accepted the version of events given by the respondent and his witnesses and rejected the version of events given by the appellant. The standard of proof is the balance of probabilities, and the onus is on the appellant. The magistrate was not satisfied to that standard that the appellant had made out his allegation of being assaulted by the respondent in the way he alleged. The basis for this finding by the magistrate was sound, namely that three witnesses, being the respondent, Ms Coleman and Mrs Dyer each gave evidence that was contained in their statements and was very consistent. The appellant had the opportunity to challenge these versions. In the case of Ms Coleman he asked no questions, so there was no challenge. The cross examination of the respondent and Mrs Dyer failed to raise any concerns about accepting their evidence.

80. In addition to that, there was evidence from Mr Bliss, of the appellant being prepared to end the proceedings should he be paid $7000, or perhaps even $14,000. The magistrate considered that suggested the appellant was not fearful of the respondent, an important element under s19 of the Act for the obtaining of an order.

81. I would make the observation that there is some merit in the point of the appellant that, had his version of events been accepted, that he could not positively say the respondent jumped on his back, is not fatal to his case. Had his version been accepted, the evidence allows for the possibility that it may be inferred that it was the respondent who, on the appellant’s version, jumped on his back. This is because there were 3 people present, Ms Coleman aged 77, and Mrs Dyer, whose age is not disclosed but on some evidence was fearful of the appellant, and the respondent. It was the respondent who was speaking with the appellant on any version of events. It is the respondent who is seen by the appellant very soon after the alleged event of someone jumping on his back.

82. The need to consider the making of such an inference becomes moot if the appellant’s version of events was found not to be established.

83. On my review of the evidence, that finding adverse to the appellant is a clear one on the evidence recounted above. With very little challenge to the 3 witnesses in the respondent’s case who actually saw the event, that outcome is almost if not wholly inevitable. It is a decision with which I agree. Additionally, the magistrate, unlike the appeal court, had the benefit of seeing the witnesses and had that benefit in assessing their evidence. Whilst the judgment does not set out an assessment of demeanour, it is plain from the transcript that the witnesses of the respondent presented better than the appellant. That said, as there was very little meaningful cross examination of the witnesses overall, the benefit of the magistrate was really that of simply seeing them briefly in the witness box to gain some better impression of a person than may be gleaned from a short statement.

84. A consequence of the evidence of the appellant not satisfying the magistrate of the events occurring as he alleged was that there was no basis on which the appellant could make out s19 of the Act, that is, he could not show he had reasonable grounds to fear violence and or intimidation, and nor could he show there was conduct that, in the opinion of the court, was sufficient to warrant the making of the order. The appellant had a further difficulty in establishing this last point given that the events in question occurred in October 2023 and the hearing seeking the order was heard 22 months later on 21 August 2025, with the evidence suggesting at best very minimal contact between the parties in the interim, if any, and even then none that could be said to have given rise to fear. Indeed the text correspondence in evidence all seems to be originating from the appellant, and mainly to people other than the respondent, specifically Mr Bliss.

85. The basis of the appeal against the cost order is not clear. The magistrate’s basis for making the order was in essence that there were 3 consistent witnesses as opposed to the one witness for the appellant. Her Honour also appeared to be of the view that the demands by the appellant for money to resolve the matter showed the proceedings were an abuse of process.

86. In my view, that there were 3 witnesses for the respondent, and only one for the appellant, is not in itself a basis for a costs order. There may be some reason to disbelieve the three witnesses, though none emerged in this case.

87. There should be care in making too adverse a finding against the appellant concerning the attempts he made to receive money from the respondent. The appellant at the appeal, and in his texts in evidence, appeared really not to properly understand the process he was engaged in. He was never really properly examined at length as to the attempt to “settle” the matter.

88. That said, what is clear is that the appellant was aggrieved about the management of the community property. What is also clear, and I would go so far as to find established as a fact, is that the events of 2 October 2023 have not only not been proven as required by the appellant, but in fact, have been established by the respondent on the balance of probabilities, to be as he and his two supporting witnesses described them. In other words, what the appellant was asserting did not happen.

89. That finding, taken together with the underlying community disagreement, together with the attempts to obtain money, show the appellant to be acting in a way that is not proper. On that basis the magistrate was right to conclude that the proceedings were not brought for the purposes of an order under s19 of the Act, but rather out of a sense of grievance as to the community’s affairs. It is not necessary to determine the appellant’s state of mind, as to whether his conduct reflects his inability to appreciate the purpose of the Act, or whether it was more calculated than that. It is sufficient to realise that the proceedings were not brought for a proper purpose. I also consider that the proceedings never had a reasonable chance of success. That is not because of the 3 as to 1 witness situation, but because in addition to that, there was no evidence at all that might suggest the version of the appellant had credibility, or that could be pointed to to show the evidence for the respondent could be shown to be unreliable. Further, in his conduct of the hearing the appellant made no meaningful challenge to the respondent’s case.

90. The result is that the appellant’s appeals of the dismissal of the application under s19 of the Act and the making of the costs order will be dismissed. The respondent foreshadowed an application for costs of the appeal, and that will be determined following any further submissions of the parties.

Orders

1. The appeal of the decision to dismiss the appellant’s application unders19 of the Act is dismissed.
2. The appeal of the costs order is dismissed.
3. The respondent is to file any written submissions as to costs of the appeal by 3 March 2026.
4. The appellant is to reply to the respondent’s submissions as to the costs of the appeal by 10 March 2026.
5. The matter is adjourned to 17 March 2026 for judgment of the application for the costs of the appeal.

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