1. Applications for a restraint order are to be heard and determined in open court in the same manner, as nearly as practicable, as a complaint for an offence being dealt with by a magistrate: s 106E(1). In deciding whether or not to make a restraint order a magistrate must consider the protection and welfare of the person for whose benefit the order is sought to be of paramount importance: s 106B(4AAB)(a).
2. I am considering a motion to review the determination and order of a magistrate pursuant to the Justices Act, s 107(1). To succeed, an applicant must identify and establish some error or mistake on the part of the magistrate, either on a question of fact or law or both: s 107(4)(a). A motion to review under s 107 is not an appeal by way of rehearing. I am not to weigh the evidence and reach my own conclusions: Richardson v Shipp [1970] TASStRp 6; [1970] Tas SR 105 at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 per Cox CJ at par 7. On the hearing of the motion the applicant shall be held to the grounds stated in the motion to review unless an amendment is allowed: s 108(1).

1. Dan filed a notice to review on 5 May 2025, three days after the order was made. It attached the twelve page handwritten document he had attempted to read to the magistrate at the hearing. The grounds are brief and shed no real light on the errors which Dan claims the magistrate made. They assert misconduct, abuse of process, bias, Wednesbury unreasonableness, conspiracy, fraud, the rights of an artificial person, the statute law of supremacy, malfeasance, misrepresentation and intentional infliction of mental harm. The record of proceedings discloses that, in a directions hearing, Daly AsJ explained to Dan that he would be bound by his grounds of appeal unless they were amended. Dan filed a further notice to review on 4 August 2025. It was not necessary for him to file a fresh motion, but the document contains many further grounds which I agreed to consider by adding them by amendment as grounds to the original motion. The second notice to review consists of 17 handwritten pages purporting to identify 48 mistakes on the part of the magistrate, accompanied by 69 pages of other documents. Dan expresses views and arguments typically advanced by persons who are sometimes called sovereign citizens. He rejects the authority of the court and the government and claims personal sovereignty from the legal system. He variously asserts that he is referred to by the wrong name, the Justices Act does not apply to him because he is not a legal entity and is a "non-citizen", the magistrate was biased and failed to allow due process, the magistrate was party to a fraud and assisted Mr Marriott in a "breach of contract", Mr Marriott withheld evidence intending to pervert justice and to intentionally cause him emotional harm, his "common law rights" were being overridden, the magistrate had no authority without his consent, and he had diplomatic immunity. The documents which accompany the second motion are full of pseudo-legal argument. Much of it is bizarre and irrational. I accept that Dan genuinely believes that these arguments have merit but they do not. They carry no force in court. In one document Dan describes himself as "'Dan' and/through the living being Incarnated into, 'Daniel Victor' of the family Gandini, the principal for the deceased estate at law DANIEL VICTOR GANDINI" and states his occupation as "Galactic emissary" who has his "own sovereignty". He refers to his "standing as a living being" and resorts to Latin maxims and misguided references to the Constitution and other State and Federal legislation, international treaties and conventions and the Magna Carta.
2. In his submissions to this Court, Dan complained that the magistrate did not accept these submissions and continued to maintain that he had been wrongly dealt with by Mr Marriott. He repeated that the only reason he had to approach Mr Marriott was to obtain his file and that Mr Marriott's refusal to copy it for him made Mr Marriott responsible for the situation which developed. Those submissions demonstrate a continuing lack of insight into his own conduct and do not assist him to establish that the magistrate was wrong to make the order.
3. At the hearing before the magistrate Dan asserted to the magistrate that she had a biased mind. The reasons for that assertion were not explained or investigated but there was no basis to conclude that the magistrate did not bring an impartial mind to the application, or that a fair-minded lay observer might reasonably apprehend that she was not impartial: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337. Subject to the following comments, nothing else in the notice addresses any relevant issue or identifies error relevant to the magistrate's function.

1. Notwithstanding the obvious deficiency in a vast majority of the material just referred to, one ground raises a relevant issue. In paragraph 43 of the document, which accompanies the second motion to review, Dan claims that the "learned magistrate had no evidence to be satisfied on the balance of probabilities", and "...telling the truth does not meet the standards of behave in a provocative or offensive manner. There was no intention to breach the peace...". The assertions were made in the context of his misguided allegations about Mr Marriott's failure to provide a copy of his files, but, fairly viewed, raise the issue of the requirements for making a restraint order.
2. Section 106B of the Justices Act provides:

(1) Where on an application made under this section, justices are satisfied on the balance of probabilities -

(i) a person has caused personal injury or damage to property; and

(ii) that person is, unless restrained, likely again to cause personal injury or damage to property; or

(i) a person has threatened to cause personal injury or damage to property; and

(ii) that person is, unless restrained, likely to carry out that threat; or

(i) a person has behaved in a provocative or offensive manner;

(ii) the behaviour is such as is likely to lead to a breach of the peace; and

(iii) that person is, unless restrained, likely again to behave in the same or a similar manner; or

(d) that a person has stalked the person for whose benefit the application is made or a third person the stalking of whom has caused the person for whose benefit the application is made to feel apprehension or fear -

they may make an order imposing such restraints upon that person as are necessary or desirable to prevent the person from acting in a manner specified in this subsection."

1. There was no evidence sufficient to support a finding of actual or threatened violence or damage to property or stalking. The magistrate correctly did not make the order on the basis of either sub-sections (a), (b) or (d) of s 106B. The only relevant provision which was capable of supporting Mr Marriott's application was s 106B(1)(c), and thus, to make the order, the learned magistrate was required to be satisfied on the evidence before her, on the balance of probabilities, of the three essential facts required by that provision: that Dan had behaved in a provocative or offensive manner, that the behaviour was such as was likely to lead to a breach of the peace, and that, unless restrained, he was likely again to behave in the same or a similar manner.
2. The magistrate expressly dealt with two of those essential facts. Her Honour found that Dan had behaved in a provocative and offensive manner. There was ample evidence on which, as a reasonable person, the magistrate was entitled to come to that conclusion. The magistrate also found that, although at the time of the hearing Dan was in prison serving a sentence, unless restrained, he was likely again to behave in the same or a similar manner on his release. There was ample evidence of his past and continuing conduct to justify that conclusion. However, nowhere in her Honour's reasons did she address the question of whether Dan's provocative and offensive behaviour was likely to lead to a breach of the peace. At the commencement of the hearing the magistrate correctly recited the terms of s 106B(1)(c) so as to attempt to explain to Dan the nature of her function. Before a restraint order could be made under that sub-section it was an essential fact to be established on the balance of probabilities that the behaviour was likely to lead to a breach of the peace. However, the issue was not addressed in the learned magistrate's reasons. No such finding was made. With respect, the learned magistrate erred by making the order in the absence of such a finding.

1. Notwithstanding the error, I am satisfied that the motion should be dismissed because no substantial miscarriage of justice has occurred: Justices Act, s 110(2)(ab). That is so because the evidence before the magistrate compelled the finding that Dan's behaviour was likely to lead to a breach of the peace. No magistrate, acting reasonably, could have come to a different conclusion.
2. What amounts to a breach of the peace was considered in Nilsson v McDonald [2009] TASSC 66; 19 Tas R 173. That case concerned the Police Offences Act 1935, s 15B(1)(d), which empowered a police officer to direct a person to leave a public place if the police officer believed on reasonable grounds that the person had committed or was likely to commit a breach of the peace. Like the Justices Act, the Police Offences Act does not contain any definition of "breach of the peace". Crawford J and Blow J both applied the common law meaning stated by the Court of Appeal in R v Howell [1982] QB 416 and determined that there cannot be a breach of the peace unless there was an act done, or threatened to be done, which either actually harmed a person, or in his presence, his property, or was likely to cause such harm, or which put someone in fear of such harm being done. Crawford J also referred to Percy v Director of Public Prosecutions (1995) 1 WLR 1382 in which the Queens Bench Division was concerned with a situation where a protester, although acting peacefully while protesting, was likely to provoke violence by others as a natural consequence of what she was doing. The court applied Howell and accepted that a breach of the peace occurs where the violence, or threatened violence, is not that of the offender but of others likely to be provoked by the offender's conduct. I will apply the law as determined by the majority in Nilsson v McDonald.
3. In his submissions in support of the motion, Dan argued that his correspondence and direct contact with Mr Marriott involved no threats of violence. He claimed that the evidence did not show that Mr Marriott was fearful of him. In my view, the evidence before the magistrate compelled the conclusion that the facts required to be proved under s 106B(1)(c) were proved on the balance of probabilities. When the restraint order was made Dan was serving a term of imprisonment. Thus, the magistrate had to decide whether, on Dan's release, a repeat of his past provocative and offensive behaviour was likely and the behaviour was such as would likely lead to a breach of the peace. As to past behaviour, the issue was not whether the provocative and offensive behaviour in fact led to a breach of the peace, but rather whether it was such as to be likely to do so. In other words, the question was whether the nature of the behaviour was such that a breach of the peace may well happen. The magistrate was to consider Mr Marriott's protection and welfare as the paramount consideration. The evidence included details of Dan's conduct on 7 and 8 July 2021 directed at his wife and police which resulted in his imprisonment. There was evidence that the issues and personality characteristics which led to those events were continuing. Dan's conduct towards Mr Marriott had persisted over a long period and his preoccupation, if not obsession, with Mr Marriott's perceived conduct, which was formed prior to the application for a restraint order, had not abated by the time of the hearing a year later. His behaviour was consistent with Mr Marriott's opinion that Dan's attitudes were delusional and that he was predisposed to conflict. The tone of his written correspondence over a prolonged period was irrational and intimidating. The evidence established that, in the context of the delusional allegations made against Mr Marriott in text messages and emails and letters, Dan had gone to Mr Marriott's professional rooms twice. His attitude on both occasions was inflammatory, confrontational and adversarial. There were no express threats of violence but the evidence established without any doubt that his attitude and presentation would be perceived by any reasonable person as volatile, intimidating and frightening. Although Mr Marriott, in his application, deposed that Dan, to his knowledge, was not "violent or likely to damage property", he was "fixated, angry and can be intimidating" and did "make unreasonable demands and accusations". Mr Marriott had been directly involved in the events at Port Sorell in 2021 and by the time of the hearing was aware of the result of the trial. The evidence also established beyond doubt that the persistence with which Dan was pursuing Mr Marriott about the file, meant that there was a very good chance that a further visit may occur following Dan's release from prison and that such a visit would, in all the circumstances, likely put Mr Marriott in fear of harm. There was a chance that others might be present. There was a good chance that some form of violence or threatened violence would occur as a natural consequence of what he was doing.
4. No magistrate, acting reasonably, could fail to have been satisfied on the balance of probabilities that, unless restrained, Dan was likely to again behave in the same or similar provocative and offensive manner and that such behaviour was likely to lead to a breach of the peace. No substantial miscarriage of justice occurred as a result of the magistrate's failure to address and make findings about the likelihood of a breach of the peace before making the restraint order.