Bajaj v Ishii - [2019] WADC 22

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BAJAJ -v- ISHII [2019] WADC 22
CORAM:   BRADDOCK DCJ
HEARD:   22 OCTOBER 2018
DELIVERED          :   22 FEBRUARY 2019
FILE NO/S:   APP 50 of 2018
BETWEEN:   RAMESH BAJAJ
Appellant
AND
YUE ISHII
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE AYLING
File Number            :   PE RO 3106 of 2018

Catchwords:

Appeal - Misconduct restraining order - Intimidating or offensive - Appropriate in the circumstances - Mention hearing - Summary dismissal

Legislation:

Magistrates Court (Civil Proceedings) Act (WA) 2004
Restraining Orders Act 1997 (WA), s 3, s 34, s 35, s 36, s 39 and s 64

Result:

Application for adjournment dismissed
Application to lead fresh evidence dismissed
Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

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

Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
House v R (1936) 55 CLR 499
Jones v Darkan Hotel [2014] WASCA 133

BRADDOCK DCJ:

This is an appeal from a decision of the magistrate to refuse an application for a misconduct restraining order on 26 April 2018.
The appellant, Mr Ramesh Bajaj (Mr Bajaj), made an application on 11 April 2018 in the Perth Magistrates Court. The grounds for the application were as follows:
On the 7^th of March 2018, at about 10.55pm the respondent offend, threatened and breached the peace at Sanchurro Café in Northbridge. The respondent has since caused ongoingly [sic] harass, disrupt of peace and further, continues to publish posts in the Perth Japanese News and advertise at the share house website for the Japanese community an abuse of personal image, repute and disrupt the peace.
Further details of the complaint were set out in the form of application details completed by Mr Bajaj the appellant. The respondent, Ms Ishii (Ms Ishii), is a Japanese student who formally rented a room in the appellant's house. She was supposed to rent the room for three months, but decided to leave early and left.
Mr Bajaj's application was served upon Ms Ishii on 14 April 2018. The restraining order summons gives a hearing date at the Central Law Courts of 26 April 2018 at 9.30 am. On that morning, both Mr Bajaj and Ms Ishii appeared before the magistrate.
The learned magistrate took evidence both from Mr Bajaj and Ms Ishii after which, she refused to make a misconduct restraining order and gave oral reasons.
It is against the refusal to grant a misconduct restraining order on this occasion that Mr Bajaj appeals. The notice of appeal was filed on 16 May 2018, and accordingly was filed within the time allowed under s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (MCCPA). The grounds of appeal are given as follows:
1.the Learned Magistrate erred in failing to apply s 42 of the Restraining Orders Act 1997 by not duly considering that at a mention hearing under s 41, the Court is to direct the registrar to fix a hearing and summon the respondent to attend hearing in relation to a final order hearing in the matter;
2.the Learned Magistrate denied the procedural fairness from not conducting a full hearing and consider the evidence of the Appellant;
3.the Learned Magistrate erred in failing to consider properly or at all, the evidence of the Appellant on acts of misconducts perpetrated by the Respondent against the Appellant;
4.the Learned Magistrate erred in her findings to make such a determination, in that, Her Honour considered that granting of misconduct restraining order against the Respondent would in all the circumstances not be appropriate;
5.the Learned Magistrate misdirected herself that her Honour had the powers to refuse to make misconduct restraining order against the Respondnet during the course of a mention hearing of the Appellant's application for restraining order against the Respondent; and
6.the Learned Magistrate erred in refusing for the misconduct restraining order against the Respondent, on making a finding at mention hearing that the Appellant was angry or confronted the Respondent about previous early departure from the house.

District Court appeal

A decision of a magistrate to refuse to make a final order under the Restraining Orders Act 1997 (WA) (ROA) may be the subject of an appeal to the District Court, pursuant to s 64(1)(b)(ii) ROA. Such an appeal is to be made in accordance with pt 7 of the MCCPA.
The District Court must decide the appeal on the material and evidence that was before the Magistrates Court: s 40(4)(a) of the MCCPA. The court may give leave to admit further evidence, but only in exceptional circumstances: s 40(5).
In an affidavit dated 21 September 2018 and filed on that day, Mr Bajaj sought leave to admit further material into evidence.
The precise form of the orders sought in relation to the new evidence was not clear from this document.
On 10 October 2018, Mr Bajaj filed a document of 'orders wanted' as follows:
Orders Wanted
1.The judgment of the learned magistrate of the Magistrates Court of Western Australia refusing the application for a misconduct restraining order - - - be set aside.
2.Leave be granted and, the affidavit evidence of the applicant be received as a further and new evidence, and the supporting documents in the appeal hearing and the trial.
3.Remit the matter back to the Magistrates Court of Western Australia to a trial, or a final hearing before the magistrate.
4.The respondent pay the appellant's costs for the appeal(s) in remedying the error(s).
It therefore appears Mr Bajaj sought that his whole affidavit and attached documents be admitted. Annexed to his affidavit were a note from Ms Ishii dated 9 August 2017, a printout of various text messages allegedly passing between Ms Ishii and Mr Bajaj, the latest apparently dated 8 March 2018 and further publications downloaded from Japan Perth News. The text of the affidavit includes additional factual material and argument.
On 12 October 2018, Ms Ishii filed submissions opposing the appeal.
On 22 October 2018, the date listed for this appeal to be heard, Mr Bajaj filed a further application seeking to adjourn the proceedings on that day.
An appeal to the District Court is by way of reconsideration of the evidence that was before the Magistrates Court (District Court Rules 2005 (WA) r 50(1)). This is undertaken by way of a rehearing: Brocklehurst v Wolinski [2015] WADC 36 [14]; Butler v Bennett [2007] WADC 107 [6] – [10]. As a rehearing, the appellate powers of the District Court are only exercisable if the appellant can demonstrate that the decision made by the magistrate in the court below was the result of some legal, factual or discretionary error. The onus is on an appellant to demonstrate the error: Jones v Darkan Hotel [2014] WASCA 133 [31].

The application to adjourn

Mr Bajaj's applied to adjourn the appeal because he wished to tender documentary evidence of new posts in the Japan Perth News, allegedly made by Ms Ishii, subsequent to the hearing on 26 April 2018. The material posted in the Japan Perth News was in the Japanese language. Mr Bajaj had not obtained certified translations in the appropriate form to tender in court. He had, according to his affidavit in support of the adjournment, noticed the material or been directed to it, by 12 July 2018. He had, according to his affidavit of 21 September 2018, copies of the material that he wished to admit, and a 'Google translation' of the Japanese language, which was attached to that affidavit. He indicated that he had appeared on 2 October 2018, in the District Court, when the application to admit fresh evidence had been adjourned to the appeal hearing. He then deposed to the fact that on 16 and 17 October 2018 he sought quotations from two individuals for the translation of the documents from Japanese into English. He also asserts that, on 20 October 2018, he requested Ms Ishii to adjourn the appeal by consent. He had no response. He went on to state that on 21 October 2018 he received certified translations of the documents.
The matter came before this court on 22 October 2018, for hearing of both the appeal and the applications. Mr Bajaj wanted a 'few days adjournment' to place the materials properly before the court.
I refused the application to adjourn, for a number of obvious reasons. The application was brought on the morning of the scheduled appeal hearing. Mr Bajaj had had ample time to arrange for a proper translation of the materials since the time that he was alerted to their existence. He should certainly have given thought to the translations upon swearing an affidavit for leave to admit the evidence, if not before. There was no reasonable excuse for not even attempting to obtain proper translations much earlier and to have made them available to the court and to Ms Ishii. Ms Ishii was under no obligation to consent to a late adjournment. The very late application to vacate the appeal was ill considered and be unfair to Ms Ishii.
Mr Bajaj did provide to the court and to Ms Ishii copies of the translations that he had obtained. I considered it appropriate to allow Ms Ishii opportunity to comment upon the translations should she so wish. Subsequently, the court received an email indicating that she considered there were inaccuracies in the translation.

Application to admit further evidence

In his written submissions, dated 10 October 2018, Mr Bajaj submitted that it, 'may be in the interest of justice, to entertain the new evidence given that there was no trial on the merits and it was an appeal from an 'exercise of summary judgment'. He quotes authority relevant to the consideration of new argument, rather than new evidence, and also refers to the public interest in the finality of litigation. His submissions at pars [12] – [21] are somewhat difficult to follow.
Mr Bajaj, in his affidavit of 21 September 2018, sought to expand upon some of the evidence previously given before the magistrate, and addressed the subsequent alleged publications in the Perth Japan News. It also contained much irrelevant and hearsay material. For example, conversations with others whilst Mr Bajaj was attempting to effect service or contact Ms Ishii, complaints about the conduct of other Japanese girls, not in the presence of Ms Ishii or connected to her. Insofar as the material is argumentative, hearsay, or repetitious, it would be inadmissible, in any event.
Subsequent publications could plausibly have some relevance, in general terms, given that the magistrate appears to have accepted Ms Ishii's assertion that she wanted no further contact with Mr Bajaj and did not at that time intend to make any further posts. However, in my view, no exceptional circumstances are demonstrated to justify the addition of this material which post‑dates the magistrate's decision. It is not in admissible form. There are no certified translations of the material. There is no evidence which identifies the authors of it. Ms Ishii would be entitled to have time to consider and perhaps lead evidence to challenge the material. Insofar as the text of the affidavit contained some further details of the matters placed before the magistrate, no exceptional circumstances were demonstrated to show why it should be admitted on appeal.
Accordingly, this appeal is to be determined on the materials before the magistrate: s 40 MCCPA.

The statutory framework for misconduct restraining orders

Part 3 of the Restraining Orders Act 1997 (ROA) deals with misconduct restraining orders (MRO). Section 34 provides the grounds for making such an order as follows:
A court may make an MRO if it is satisfied that —
(a)unless restrained, the respondent is likely to —
(i)behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or
(ii)cause damage to property owned by, or in the possession of, the person seeking to be protected; or
(iii)behave in a manner that is, or is likely to lead to, a breach of the peace;
and
(b)granting an MRO is appropriate in the circumstances.
Section 35 of the ROA then sets out the matters to be considered when making an MRO including, at s 35(1)(a)(i), the 'need to ensure that the person seeking to be protected is protected from intimidatory or offensive behaviour'. Section 35A of the ROA makes it plain that an MRO is not to be made where the person to be bound by the order and the person protected are in a family relationship with each other. Section 36 sets out the type of restraints that may be imposed upon a person and their lawful activities.
The ROA provides no definition of the words 'intimidate' or 'offend'. Prior to the amendment of the ROA [by No 49 of 2016] s 8(6)(4) of the ROA defined 'intimidate' to have the same meaning as s 338D of the Criminal Code. No alternative definition was inserted on the amendment. Dictionary definitions of 'intimidate' include to 'frighten or overawe' someone, especially to get them to do something they do not want to do. 'Offend' is a common English word with a wide ambit of uses. Dictionary definitions include 'to cause to feel upset, annoyed, resentful, irate, anger and hurt.
Section 39 provides:
If an applicant makes an application for an MRO the registrar is to fix a hearing and summons the respondent to the hearing.
Section 3 of the ROA defines a 'mention hearing' to be a hearing fixed under s 23(2), s 26(3), s 29(2) or s 39.
Part 4 div 1 of the ROA deals with mention hearings. Section 40 concerns attendance at hearings, and is not relevant in the current circumstances.
Section 41 deals with consent orders, and provides in s 41(4):
Subject to section 40, at a mention hearing at which a consent order is not made, the court is to direct the registrar to fix a hearing and summons the respondent to attend the hearing.
Division 2 of pt 4 deals with 'final order' hearings. Section 42 is concerned with attendance by the parties, and the admission of evidence of any prior record of evidence given in relation to the application. Section 43 provides that at a final order hearing a court may make a final order of the type and with the terms that the court considers appropriate.
In this instance, the restraining order summons shows that an application was made by Mr Bajaj. On 11 April the summons was issued by the registrar for both parties to attend on 26 April 2018, which, therefore, pursuant to s 39 of ROA, would be a mention hearing.

Proceedings on 26 April 2018

The transcript of proceedings shows that both Mr Bajaj and Ms Ishii attended court before Magistrate Ayling that morning, and that Ms Ishii had the services of a Japanese language interpreter. The magistrate first confirmed that she had Mr Bajaj's application and took evidence from Mr Bajaj, without further explanation or comment. Mr Bajaj identified himself, and when asked his occupation responded 'your Honour I am having a practicing certificate. I am a restricted practitioner and currently I am not practising at this point in time'. Mr Bajaj, when asked the reason for his application, went on to detail events on 7 April 2018 (sic). His evidence was to the effect that on that date he was in company with Ms Meipa Ekomoda having coffee. The magistrate interrupted to inquire about his relationship was with Ms Ishii.
Mr Bajaj described Ms Ishii as a housemate the previous year in July/August. He described it as a 'share house' and that she took the place for a minimum of about three months. He then described that she left without his knowledge leaving a note on the table. He went on to say that in September or October he received some mail for Ms Ishii and sent her a message. He also said he sent her a message after she left, complaining that she had terminated without coming to a settlement. It appears that he said to her that she was avoiding him. He said to her that she should come back and sign off the bills and things.
His evidence at that point was somewhat difficult to disentangle and the magistrate summarised that she (Ms Ishii) had left and that he was not happy about it, because she had not done so in accordance with the agreement that Mr Bajaj thought he had. Mr Bajaj also added that he told her that she had not returned the key, to which Ms Ishii had responded 'I will send my friend, I will not come'.
Mr Bajaj continued that after that he had no contact with Ms Ishii, but he did receive mail which he thought was some kind of university degree certificate. Accordingly, he sent her a message to advise her of this. He received no response. He tried to contact Ms Ishii via a common friend. After this, Ms Ishii responded and asked for the mail to be left outside the door. Mr Bajaj refused to do this and said she should come to collect it. Her response was to 'forget about it'.
Mr Bajaj then returned to events on the 7 March 2018, when he went out with his friend Meipa and was having coffee at San Churro at about 10.35 at night. He said he noticed Ms Ishii in the café with two Japanese girls. He did not speak to them but sat down and was having coffee. He had some conversation with his friend Meipa about one of the other Japanese girls, not Ms Ishii. They got up to leave. As they got up one of the girls came towards them and spoke to Mr Bajaj. He said that the girl said 'Oh he's dangerous' and started talking in Japanese with Meipa. There was then further conversation between Mr Bajaj and this other Japanese girl. Mr Bajaj said he did not understand Japanese.
After an interruption by the magistrate, Mr Bajaj continued. He said that he went inside, Ms Ishii was still sitting inside, and the two other girls were disturbing him and he went and 'told her' (presumably Ms Ishii), 'what is going on' (sic). In response, she said why are you asking them and she shouted 'Don't ask me'. He said she said 'nothing to do with me' and that she screamed and the staff came there. He spoke to the staff and they said they were closing and would they please leave. Mr Bajaj said that 'We went out' presumably himself and his friend. He said she came behind and she started talking. He said that Ms Ishii spoke to Meipa in Japanese. He said that she was 'very offensive'.
He said that in the meantime a car came and a man and one of the girls went into the car. This man had tattoos and he was scared that he was going to be hit. He said that the man came to him and asked him why he did not go away. Mr Bajaj engaged in some conversation with him. After that, the man told the girls to come and sit in the car. Mr Bajaj said he was left alone and that he was shocked. He said he went from there to the police station, which was closed. He then went home and telephoned the police. He said that, although he was a lawyer, he took legal advice.
He went on to say that, on 4 March 2018, an associate told him that 'they are writing on the internet'. He then asked his housemate to check the Japanese site which was where people put advertisements for sharing houses. He said he had a copy of it with a Google translation. He alleged that Ms Ishii had gone and created an advertisement (sic) on the website alleging that he was a dangerous owner, not to go there and to be careful. He said that the incident happened on 7 March, and on 9 March Ms Ishii put another entry on the website. It appears Mr Bajaj recognised her email address. He said then that other friends also started to put material there.
When asked by the magistrate the nature of what was being said in the posts, he said 'You're a bad person', that they gave his identity saying 'He's a lawyer, he's Indian' and the description and that they said 'Don't go to his house you should be careful'. Mr Bajaj said:
So it appears to me that they are all putting they are putting bad name 'don't go' and they have said this is his source of income, he's not working if he's a lawyer why is it turning around we should deprive him and all sorts of remarks.

Mr Bajaj said it was an attack upon him and intimidation.
The magistrate then took evidence from Ms Ishii. She confirmed that she had lived in Mr Bajaj's house for a period of about one month. That there was an arrangement for her to live there for three months. That she left earlier than that. She said she was not comfortable living in his house anymore and she told him she would like to leave. She described Mr Bajaj as very controlling and very manipulative. She said that when she said she would leave he said 'No, you can't' and then she decided to leave. She said that she had put posts on a website, that it was not just her, that there were quite a few random people posting comments and that they all had a bad experience with Mr Bajaj. She said she wrote in August and then there were one, two, three posts comments in August, two posts in September and one in October. Then it stopped. She said she reposted in March of this year, after the incident.
In the San Churro Café, she said she was sitting in the café until Mr Bajaj came to talk to her. Inside the café he approached her saying 'What's this all about' and she said to him 'I've got nothing to talk to you about'. She emphasised that he approached her. She said that he looked angry and raised his voice. She said she had to raise her voice and said 'I've nothing to talk to you about'. She said she stood up and tried to leave the café and that Mr Bajaj followed her. She kept saying 'I've nothing to talk to you about'. There was some conversation about the mail. When asked by the magistrate whether she was going to put any more posts about his house on the website, she said she did not know and then said she would not. She said she had no intention to. She emphasised she did not want anything to do with Mr Bajaj, that she did not even go to pick up important mail, so why did she need to receive a misconduct restraining order.

The magistrate's decision

Her Honour delivered an ex tempore decision, as is almost inevitably the practice in a busy Magistrates Court. Magistrates due to their large work load do not, in most cases, have the opportunity to reserve their decisions, obtaining transcript, consider it and deliver crafted reasons. The court provides a speedy and efficient means of delivering justice and resolving disputes without causing people to incur costs or suffer delays.
In this instance, she heard both parties, and then dismissed the application without inviting submissions or indicating she intended to deal with the application forthwith.
In her reasons the magistrate referred to the provisions of s 34 of the ROA. She referred to the fact that the burden of proof is on an applicant and that the standard proof is on a balance of probabilities. She said that she needed to be persuaded that it was more likely than not that it was appropriate that the grounds had been satisfied for the making of an order.
She said she had evidence that Ms Ishii had been living on a short‑term basis in Mr Bajaj's house and had left early, unexpectedly. She referred to the fact that some mail arrived and that Mr Bajaj made efforts to contact Ms Ishii through a mutual friend. She referred to the incident at the San Churro Café in March 2018, and said 'Whereupon he confronted her about her early departure'. She said that they had heated words and other people intervened. She referred to the presence of a male person with tattoos arriving in a car in support of Ms Ishii at the end of their confrontation.
She summarised that Mr Bajaj indicated that after that confrontation he discovered that there were a number of posts on a Japanese networking website where people had corresponded in Japanese about him in August, September and October 2017. She referred to Mr Bajaj getting the post translated via Google translate and indicated that they said he was a bad person and attacked his character.
She said that Mr Bajaj sought a misconduct restraining order to restrain Ms Ishii from having contact or putting up posts of that nature. She referred to the fact that Ms Ishii had accepted that she had left the premises early because she was uncomfortable. That she had agreed she had posted on the website about Mr Bajaj but that others had also done so. She referred to Ms Ishii's evidence about San Churro Café and that she confirmed that Mr Bajaj had approached her. She referred to the fact that Ms Ishii had indicated that she wanted nothing further to do with Mr Bajaj.
In summarising the evidence given, the magistrate did not attempt to resolve any conflicts in the evidence or made any specific findings in relation to that evidence. Where the evidence of the two witnesses was not identical, she has not explicitly preferred one version to another. She briefly outlined the situation.
She went on to refer to the requirement, under s 34 of ROA, that she must be satisfied as to whether any of the grounds had been made out. She also indicated that she needed to consider whether granting a misconduct restraining order would in all the circumstances be appropriate. She then went on to say:
Whilst he might feel offended by those isolated incidents of which the respondent concedes, she has indicated that she wishes to have nothing more to do with him and so I am satisfied that on her evidence she doesn't have any desire to have anything more to do with him. She has indicated in her evidence that she will not or does not have any intention to post anything more about him and so I have determined that I don't consider a misconduct restraining order to be appropriate in all the circumstances.
It is not for this court to restrain people where they have disagreements between each other. This is an arrangement that degenerated and one part chose to leave the accommodation. It may not have been in the terms that you felt you liked, Mr Bajaj, but at the end of the day the parties or once the party does not want anything more to do with you and so I don't consider that on the balance of probabilities there is any risk of her having anymore conduct which would be considered under the terms of the Act to be intimidating or offensive towards you and so the application is refused.

Analysis – grounds of appeal

The grounds of appeal relied upon by Ms Bajaj have already been set out in full above [par 6].
Ground 1 alleges error by the magistrate by 'failing to apply s 42 of the ROA' and by not directing the registrar to fix a hearing and summons the respondent to attend at a final order hearing. Section 42 of the ROA has nothing to do with the position in relation to this application. That section deals only with the attendance of parties at a hearing and the evidence that may be admitted. Section 41 deals with the position where no consent order is made at a mention hearing and requires the registrar to fix a hearing: (s 41(4)). Ground 5 of appeal appears also to refer to the issue of fixing a hearing. It states:
The learned magistrate misdirected herself that her Honour had the powers to refuse to make a misconduct restraining order against the respondent during the course of a mention hearing of the appellant's application for a restraining order against the respondent.
Section 43 of the Magistrates Court (Civil Proceedings) Act 2004 sets out the powers of this court on appeal. Section 43(4) gives power to the court to strike out any ground if there is no reasonable basis for it, or it does not have any reasonable prospect of succeeding, inter alia. Considering grounds 1 and 5 together, I deduce that Mr Bajaj's real complaint is that he considered that the first hearing of his application was a 'mention hearing', and did not expect the application to be summarily dismissed. I strike out ground 1, as it has no reasonable basis, but ground 5 may stand, understood as I have indicated.
Ground 2 is an allegation of a denial of procedural fairness. The complaint is that the magistrate did not conduct a full hearing and consider the evidence of the appellant. In proceedings for a misconduct restraining order, pursuant to s 39 of the Act, the hearing on 26 April 2018 was, indeed, a mention hearing. However, there is no foundation in the allegation that the magistrate did not consider the evidence of Mr Bajaj. It is abundantly clear from the transcript that she heard the evidence and considered what each party had had to say.
Similarly, ground 3 is an allegation that the magistrate failed to consider properly or at all Mr Bajaj's evidence on the acts of misconduct. Again, it is abundantly clear that the magistrate did so and gave a summary of those matters. In my view, neither ground 2 nor ground 3 has any reasonable prospects of success so far as they make allegations of a failure to consider evidence. Ground 3 is dismissed pursuant to s 43(4) of the MCCPA. I will return to the question of procedural fairness below.
Ground 4 alleges that the magistrate erred in determining that the making of a misconduct restraining order against Ms Ishii would in all the circumstances not be appropriate. This ground challenges the magistrate's discretionary decision under the second limb of s 34(b) of the ROA. The sixth ground reads:
The learned magistrate erred in refusing for the misconduct restraining order against the respondent on making a finding at a mention hearing that the appellant was angry or confronted the respondent about previous early departure from the house. [sic]
This ground makes two allegations, firstly, that the magistrate refused to make a misconduct restraining order and secondly that there was error in finding that Mr Bajaj was angry at a mention hearing. The ground is somewhat confused.
The essence of the remaining grounds, reading of them as a whole, are complaints that firstly, the application was determined at a 'mention hearing', secondly, that the magistrate was wrong in deciding it was not appropriate to make a misconduct restraining order, and thirdly, that he was denied procedural fairness. I propose to consider the appeal on this basis.
In dealing with these issues, I am conscious that Mr Bajaj is a litigant in person, albeit one with a legal practicing certificate, according to his evidence. It is also obvious that English is not his first language and for both these reasons he should be afforded some latitude, in, for example, the drafting of his appeal grounds. Similarly Mrs Ishii is a litigant in person, without legal training who had a Japanese interpreter at the hearing below.

Analysis – Magistrate's decision

It is clear that, on the application being called, the magistrate obtained an overview of the situation by taking sworn evidence from both parties. There was no invitation to cross-examine, no questions about documents to be tendered or other witnesses to be called. There could be no suggestion that this was a final hearing, in the sense of a full trial upon the application.
The magistrate accepted that Mr Bajaj might feel offended by the posts in the Japan Perth News and also accepted that Ms Ishii wanted nothing further to do with him. Such findings were open on the evidence. She did describe Mr Bajaj as angry, a comment which Mr Bajaj disputes in ground 6. It is however, in my view, of limited or no relevance whether the court described him in that way. Mr Bajaj is the applicant not respondent to the application.
Her decision is based on two foundations. Firstly, that Ms Ishii did not want anything to do with Mr Bajaj or intend to post more material online and secondly that a MRO was not appropriate in the circumstances. She also decided that the ROA and particularly MROs, were not for people who just have disagreements.
The issue of the 'appropriateness' of an MRO involves a discretionary judgment, under s 34(b). This court should not interfere with such a judgment merely because it might have reached a different conclusion. It must be shown there was error in the exercise of her Honour's discretion.
If her Honour acted upon a wrong principle, or if she has allowed extraneous of irrelevant matters to guide or affect her, or if she has made a mistake on the facts or if she does not take into account some material consideration, then her determination should be reviewed and I may then exercise my own discretion, if I have the materials for doing so. If the result reached by her Honour were unreasonable or plainly unjust, then this court might infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the grounds that a substantial wrong has in fact occurred. (House v R (1936) 55 CLR 499)
The MCCPA gives a Magistrates Court very wide powers: s 13, s 15, s 18(1) MCCPA. The court must ensure that cases are dealt with justly, including efficiently economically and expeditiously (s 13). The court may exercise its powers on application or its own initiative, with or without submissions (s 15) and the court may give summary judgment (s 18(1)).
Mr Bajaj provided lengthy written submissions on the appeal. They are challenging in their drafting and nothing is to be gained by setting them out here. Mr Bajaj cites authority apposite to an O 14 application under the Rules of the Supreme Court 1971 (WA). This is not such a situation. The court was not dealing with a civil action to be contested on pleadings between parties. Rather, she was asked to exercise the court's powers under a statute dealing with types of specific orders governing the future behaviour of members of the community. The obligation is to consider, as she did, whether the statutory preconditions to the making of an order were established as set out in s 34(a) and (b).
In this case, the magistrate applied her discretion in relation to a legislative provision: s 34(b) of the ROA. She exercised her discretion in a summary manner. This was not, however, 'summary judgment' in the same sense as a pleaded claim. There was nothing to prevent the magistrate dismissing the application if she had formed the view that no basis upon which she could make an MRO. However, she explained none of this to Mr Bajaj or Ms Ishii, and did not seek submissions from either. In my view, it was a denial of procedural fairness to have omitted such a basic step in judicial process.
A demonstration of error, however, is not the end, but the beginning of the review process on an appeal under MCCPA. I must review the proceedings.
I have considered the material before the magistrate. I will approach the issue on the basic facts from Mr Bajaj's account. The essential matters are that:
1.Ms Ishii left his property and initiated no contact with Mr Bajaj thereafter. Mr Bajaj seemed to seek further contact with her for various reasons, such as the mail.
2.The encounter in San Churro Café was accidental, that is, unplanned by either party.
3.Ms Ishii did nothing to attract attention from Mr Bajaj that evening. The initial contact that evening was between two other Japanese girls at Ms Ishii's table and Mr Bajaj's companion.
4.Mr Bajaj approached Ms Ishii thereafter. She indicated she wanted him to leave her alone. She shouted or screamed. There was no evidence or suggestion that she either threatened or assaulted him.
5.There was no evidence that subsequent interactions, including with a male tattooed person, were orchestrated by Ms Ishii. She left the location.
6.Mr Bajaj does not read or speak Japanese. He was alerted to posts in Japan Perth News by others.
7.The content of any comments by Ms Ishii in the Japan Perth News were not directed at Mr Bajaj. They were warnings to other Japanese potential tenants about Mr Bajaj. They did not include any threats to him, on Mr Bajaj's evidence.
8.Mr Bajaj did not like what he understood to be comments in Japan Perth News making him out to be a bad person. He was concerned about his reputation.
From this evidence I cannot be satisfied that Ms Ishii behaved in an intimidating or offensive manner to Mr Bajaj. She did nothing to frighten or coerce him. Her conduct in San Churro Café was limited to telling him 'don't ask me', 'nothing to do with me' and screaming, on his evidence. She said she told him she had nothing to talk to him about. She accepted she shouted. Neither her words nor conduct could reasonably be interpreted as intimidating or, of themselves, offensive. There was no evidence at all that she co-ordinated or incited the behaviour of others.
Such comments as she posted online were not directed at Mr Bajaj, or likely to cause a breach of the peace. Given the context and purpose of the ROA, the conduct of posting comments online could not be reasonably expected to intimidate or offend Mr Bajaj in the relevant sense. The law of defamation is concerned with reputation, the ROA is not. Ms Ishii is entitled to express her views to others who can read the Japan Perth News, which Mr Bajaj cannot, subject to any other applicable law on the content of the material.
In my judgment, no foundation for an MRO under s 34(a) could be made out, on Mr Bajaj's own evidence. It would be contrary to law to make an MRO in the circumstances. Further, in my view, the magistrate's conclusion that it was not 'appropriate' to make an order was correct. There had been a disagreement previously about Ms Ishii's manner of leaving her lodgings and words were spoken in San Churro Café, loudly, but that was not the type of conduct to which the ROA is directed. People annoy others quite frequently, they have minor disagreements over tenancies or other business arrangements. These things may be unpleasant or embarrassing, but that does not make it appropriate to make an MRO.
Mr Bajaj's evidence shows that Ms Ishii was seeking to avoid Mr Bajaj, prior to 7 March 2018. There was no basis to conclude that she would have had any contact with him on 7 March 2018 but for the fact that he approached her.
Mr Bajaj's complaints, on his own sworn evidence, could not satisfy me of the requirements under s 34(a) or (b) on the balance of probabilities. It is not intimidating to yell at somebody to go away. It may be rude, but that is another matter. It is not intimidating or offensive to warn others in a language Mr Bajaj does not speak.
Whilst her Honour's summary dismissal of the application was peremptory, on reviewing the evidence the result is correct. The MCCPA requires the court to deal with matters efficiently (s 13) and to exercise its powers on application or its own initiative, with or without submissions (s 15). It would not be efficient, expeditious or fair to permit or require a claim without any merit on the most favourable view of the applicant's case to proceed any further.
Accordingly, the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Braddock
21 FEBRUARY 2019