Bannister v Cassar - [2022] WADC 18

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BANNISTER -v- CASSAR [2022] WADC 18
CORAM:   VERNON DCJ
HEARD:   11 FEBRUARY 2022
DELIVERED          :   25 FEBRUARY 2022
FILE NO/S:   APP 29 of 2021
BETWEEN:   DONNA-LEE BANNISTER
Appellant
AND
CHARMAGNE MARCELLE CASSAR
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE B AYLING
File Number            :   MC/CIV/PER/RO/4152/2020

Catchwords:

Family violence restraining order - Reasonable opportunity to be heard - Summary dismissal - Frivolous and vexatious

Legislation:

District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	Ms S A Auburn
Respondent	:	Mr A Mossop

Solicitors:

Appellant	:	Albert Wolff Chambers
Respondent	:	Solve Legal Pty Ltd (NSW)

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 [28] and [29]; (1999) 84 FCR 438
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Pickering v Centrelink [2008] FCA 561
Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104
Re Rules of the Supreme Court 1971 (WA) Ex parte Gates [2018] WASC 213
Rowe v Stoltze [2013] WASCA 92
Strahan v Brennan [2014] WASC 190
Tobin v Dodd [2004] WASCA 288
Woodley v Woodley [2018] WASCA 149

VERNON DCJ:

On 29 September 2020, the appellant, Donna Lee Bannister, obtained an interim family violence restraining order (FVRO) against the respondent, Charmagne Marcelle Cassar.
The appellant brings this appeal pursuant to s 64 of the Restraining Orders Act 1997 (WA) (the RO Act) and s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) from a magistrate's decision on 20 April 2021 to refuse to make a final FVRO in favour of the appellant against the respondent and to order that the appellant pay the respondent's costs of the application for the FVRO.

Grounds of appeal

The grounds of the appeal, as orally amended with leave on 11 February 2022, are as follows:
1.The learned Magistrate erred in failing to provide the Appellant, a self-represented litigant, a reasonable opportunity to be heard.
2.The learned Magistrate erred in law in dismissing the application without evidence being adduced.
Particulars of Ground 2
a)Pursuant to s.42(4)(b) of the Restraining Orders Act 1997 (the Act), it was open to the learned Magistrate to admit as evidence, the evidence given earlier in support of the interim restraining order in circumstances where the Appellant was available to be cross examined on that evidence.
b)The learned magistrate erred in law in dismissing the application as there was no evidence on which to base that decision.
3.The learned magistrate erred in law in failing to allow the Appellant to have a support person.
Particulars of Ground 3
a)This was contrary to s. 44D of the Act, where there is such an entitlement for the person seeking to be protected.
b)In advising the person in support to stand aside without conducting any inquiry as to that person's status.
c)The learned magistrate's reason for standing aside the person in support was that the applicant was communicating adequately is not a basis for standing aside the person in support.
4.The learned Magistrate erred in ordering costs in the sum of $6,600 that were not appropriate.
Particulars of Ground 4
a)The learned Magistrate did not state the reasons or refer to the evidence for why the application was frivolous or vexatious as required by s. 69 of the Act.
b)The learned Magistrate did not have evidence to substantiate the amount of costs sought in that no bill of costs was produced.
c)The learned Magistrate appears to have awarded (in whole or in part) costs for services not provided in that costs were sought for the day set aside for the hearing, and the matter did not proceed as such.
d)The learned Magistrate made the determination on the incorrect scale of costs in relying on the Legal Profession (Magistrates Court) (Criminal) Determination 2020 whereas the correct scale was the Legal Profession (Magistrates Court) (Civil) Determination 2020.

General principles

The appeal proceeds by way of a rehearing rather than a fresh hearing: Magistrates Court (Civil Proceedings) Act 2004 (WA) (Act) s 40, District Court Rules 2005 (WA) r 50(1)(d).
A court may substitute its decision for that of the magistrate only if the appellant demonstrates that the orders the subject of the appeal are the result of a legal, factual or discretionary error by the magistrate, based on the material before the magistrate, and any additional evidence either party has been given leave to adduce: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. Leave is not to be granted unless there are special grounds: r 50(3) of the District Court Rules (DCR).

History of the appeal

The history of the matter is that it came on before me on 17 November 2021, at which time I adjourned the hearing on the appellant's application, in order that she could seek legal advice. The respondent did not oppose the adjournment. The appellant was represented by counsel when the matter was heard on 11 February 2022.
The respondent sought leave to adduce the affidavit evidence of Kyle Kutasi sworn 13 October 2021. Mr Kutasi had appeared for the respondent at the hearing on 20 April 2021. The appellant did not oppose that application, and said that the contents of the affidavit, in fact, could be used to support the appellant's position. I accept that there are special grounds to adduce evidence of matters that were not revealed by the transcript of the hearing and grant leave to the respondent to rely on the contents of the affidavit.
On Thursday, 10 February 2022, the respondent filed two further affidavits, of the respondent, sworn 9 February 2022, and of a process server, Yvonne Palmer, sworn 10 February 2022. An oral application was made to rely on these affidavits at the hearing on 11 February 2022. However, that application was ultimately withdrawn by the respondent's counsel. I did accept into evidence, by consent, a document attached to one of those affidavits being the transcript of proceedings on 29 September 2020, before another magistrate in the same proceedings, where the interim family violence restraining order was made.
During the proceedings on 29 September 2020, which were conducted in the absence of the respondent, the appellant gave sworn evidence in answer to questions by the magistrate.

Proceedings before the learned magistrate

The notice of the hearing appearing on the Magistrates Court's file states that the hearing was listed for 9.30 am on 20 April 2021.
From my reading of the transcript of the proceedings before the learned magistrate, the hearing on 20 April 2021 proceeded as summarised in the paragraphs below.
The appellant was not present when the matter was first called on, at 9.41 am. Mr Kutasi for the respondent applied for the proceedings to be dismissed and sought costs on an indemnity basis on the basis that the application for a final FVRO had no prospect of success. The magistrate stood the matter down without dismissing the application for a final order, in order that Mr Kutasi could consider the quantum of the costs he was seeking and make submissions to the magistrate.
When the matter was next called on, the magistrate was told that the appellant was now present. The appellant said that she had been late because she was very unwell and had a serious medical condition, which she described as complex post-traumatic stress disorder and widespread chronic pain condition. The appellant said she had not slept the previous night because of that and was feeling rather ill. The appellant also said that she was attempting to obtain legal advice. It appears that this was at about 10.30 am, as the magistrate says, 'it is late, it's an hour after court has started'.
The magistrate said to the appellant 'so what you're asking me to do is to consider leaving your application on foot, is that right? You would like to pursue your application to a final order'. The appellant's reply is not recorded in the transcript however it can be inferred from what was subsequently said that the appellant said 'yes'.
The appellant then asked the magistrate whether she could have her support person represent her in the capacity of a McKenzie friend. The magistrate noted that the appellant had been able to speak for herself quite adequately, and the appellant said again, in effect, that she was unwell and that she had medical documents which could evidence that her condition affected her memory and her ability to represent herself.
The magistrate then discussed with Mr Kutasi the possibility of the matter being adjourned to a final hearing on another day, saying, 'she is not in a position, I would have thought, to proceed with a final order hearing today' on the basis of what the appellant had said.
Mr Kutasi effectively objected to an adjournment saying that the Registry had told him the matter would proceed to a final hearing that day, he was ready to proceed, and it was important from his client's perspective to resolve the matter because the respondent had a dangerous goods licence and the interim FVRO inhibited her ability to work on mine sites. He then said, 'There's no reasonable prospects and never were any reasonable prospects. The matter should be dismissed'.
The magistrate then said to the appellant 'I see you've got a very detailed file there of documents. Are you in a position to be able to explain to me the basis for your claim today in terms of a thumbnail sketch of things?'.
The appellant said, in effect, that she had not prepared the file, that she had had assistance in compiling the documents because of her mental health condition, that the person she was proposing to have as a McKenzie friend would be able to show her the documents that the magistrate needed, and effectively reiterated her application to have a McKenzie friend to assist her. The appellant also asked the magistrate to look at her medical records which were in the file although the appellant said she didn't know where in the file.
The following exchange then took place:
Her Honour:     Now, [Appellant], what I was asking you to do is to explain to me in short form why it is that you need a restraining order to protect you from this lady, [Respondent].
Appellant: Because she is dangerous.
Her Honour:     Why?
Appellant:Because she has tormented me.
Her Honour:     Why?
Appellant: For 10 years. The damage that that woman has reaped on my life in the last 10 years is extensive, and I have got memory and cognitive problems, and I really need help with being able to respond to your questions.
Her Honour:     Well, you're able to answer my questions in a clear and coherent fashion this morning,
Appellant:I just told you I've got memory issues related to my medical condition, and I have medical evidence to verify that'.
Her Honour:     All right. Describe for me why it is that you are in fear of violence from [the respondent].
Appellant:Can you explain why the respondent has not had to ‑ ‑ ‑.
Her Honour:     No, no. Answer my question. Answer my question.
Appellant:Why hasn't the respondent has to respond to you.
Her Honour:     Look, I'm asking you – – –
Appellant:And she has a lawyer representing her.
Her Honour:     Look, I will be very clear – [appellant], I will be very clear to you now. I'm asking you to answer these questions because you are at risk of me dismissing your application here and now. So this is your opportunity to explain to me the merits of your application, otherwise you are at risk of me dismissing this application.
Appellant:I haven't slept. I haven't even had a minute to think about this'.
Her Honour:     Okay. So the application.
Appellant:I need a pen and paper.
Her Honour:     This is an application brought by [the appellant] … for a violence restraining order. The matter is listed – – –
Appellant:I am going to respond to you. I want a moment to think. I need a moment to think because of my medical condition. You need to see my medical reports.
The magistrate then proceeded to give the following reasons for decision:
Ms Bannister has brought an application for a violence restraining order, it was granted on an interim basis on 29 September. The matter is listed for a final order hearing. She was late today and the matter was about to be dismissed due to her absence. She has come late, and I've asked her to explain why she needs a final order restraining Ms Cassar, the respondent, from having any contact with her.
She has not been able to explain anything to me which indicates the merits of her application. And so, having given her that opportunity, I see that there is no merit in the application so it's dismissed. The interim order is now cancelled.
Following this, the magistrate asked Mr Kutasi if he had an application and Mr Kutasi made an application for costs of $6,688, for 16 hours work at $418 per hour, based on the rate provided in the Legal Profession (Magistrates Court) (Criminal) Determination 2020 for a senior practitioner.
The appellant objected to the costs order on the basis it was unjust and said that the decision the magistrate had made was unjust.
The magistrate then gave a decision on costs as follows:
So Mr Kutasi is making an application for costs on the basis that the application for a violence restraining order has been made without any merit or made on a frivolous or vexatious basis. The objections made by Ms Bannister, the respondent to that application, in terms of considering the application that's made consideration is mine under s 65 of the Restraining Orders Act in terms of considering the merits of the application. (Sic)
I have indicated that the application has no merit and so I've dismissed the application without hearing a trial. And taking into account what is being sought by Mr Kutasi, it seems to me that the amount being sought is entirely appropriate and within the scale considering the stage at which the matter is that. And so there be costs ordered in the amount of $6600 against Ms Bannister noting that the application simply has no merit and that was the basis for its dismissal.
According to the transcript, the proceedings concluded at 10.43 am.

Mr Kutasi's affidavit

The content of Mr Kutasi's affidavit were to the effect that:
1.the appellant spoke to the magistrate during the proceedings in a belligerent tone, become increasing louder;
2.Mr Kutasi's impression was that the appellant did not seem nervous;
3.the appellant had with her a support person, who initially sat in the back of the court and then approached the bar table and began speaking with the appellant, and who expressed a view that the appellant should just leave and they would appeal the decision;
4.The magistrate told the support person, in effect, to leave the bar table; and
5.The appellant became louder as she appeared more frustrated with the flow of the proceedings, and when she is recorded in the transcript at page 12 as saying 'she had not slept', immediately before the magistrate handed down her decision the appellant was shouting.

Appellant's submissions

The appellant submitted that the magistrate should have had regard to the transcript of the hearing on 29 September 2020 when considering whether the application had any merit, as the magistrate would have been aware that there had been a hearing at which evidence was led to obtain an interim order.
The appellant submitted that had the magistrate referred to the transcript of the earlier proceedings it may have the appellant's memory because the appellant's case against the respondent was set out in a transcript.
The appellant also submitted that the magistrate did not give the appellant a reasonable opportunity to be heard at the hearing, saying that it was clear from the transcript that the appellant at that point was not able to respond properly or answer the questions that were being asked of her by the magistrate, and that the manner of her enquiry was interrogatory and put the appellant on the back foot.
The appellant submitted that on the basis of Mr Kutasi's affidavit the evidence was that the appellant was agitated, and in the circumstances the magistrate ought to have adjourned the proceedings for a short while at least in order to allow the appellant to collect herself.
The appellant submitted that the effect of the magistrate's conduct was to refuse to allow the appellant a support person, to which she was entitled.
As to the order for costs, the appellant says that there was no evidence before the magistrate to support a finding that the application was frivolous or vexatious, as required by s 69 of the RO Act, if that was what the magistrate meant by her finding that the application had 'no merit'.

Respondent's submissions

The respondent accepted that the evidence that the appellant had given before the magistrate presiding on 29 September 2020 was evidence that was before the magistrate on 20 April 2021, although it did not appear that the magistrate had the transcript before her.
With respect to a further affidavit dated 1 December 2020 sworn by the appellant in relation to an application for substituted service, which was also on the Magistrates Court file, and which contained information as to the appellant's complaints against the respondent, the respondent submitted that this was not admissible in the proceedings on 20 April 2021, as it was not evidence captured by s 42(4)(b) of the RO Act.
The respondent said that procedural fairness did not require the magistrate to review the content of the court file or the transcript of the earlier hearing in order to assess whether the appellant had a claim. The respondent accepted that the magistrate had an obligation to give a self-represented party some latitude, and to assist them to understand the court's procedure, but said, as I understood it, that to review the evidence that had been led before would be to assist the appellant in the presentation of her case, which was not required.
The respondent said that the appellant was given sufficient notice that the application for a final order would be heard on 20 April 2021, had a reasonable time to prepare her case, and was given the opportunity to explain her case on that day. The respondent submits that the magistrate had determined, as it was open to her to do, that the appellant had refused to explain her claim despite being given the opportunity on several occasions to do so. However, the respondent accepted that there was no suggestion in the transcript that, in deciding the appellant was refusing to answer the magistrate's questions (as the respondent submitted had occurred) the magistrate had relied on the appellant's demeanour as described in Mr Kutasi's affidavit, but simply on the failure to provide a response to her questions.
The respondent submitted that, in all the circumstances, the appellant was given a reasonable opportunity to be heard, and that, whilst it was open to the magistrate to stand the matter down to give the appellant time to collect herself, it was not incumbent on the magistrate to do so.
As to the alleged refusal to allow the appellant to have a support person, the respondent said that the magistrate was not asked to allow a support person, but rather that the person with the appellant be allowed to act as a McKenzie friend, and it was open to the magistrate to refuse that request.
As to the order for costs, the respondent accepted that, had the appellant not appeared on 20 April 2021, the respondent would have been required to lead evidence in order to establish, on the balance of probabilities, that the application was frivolous or vexatious.

The respondent submitted that the magistrate was entitled to rely on her interactions with the appellant on the day to conclude that the appellant was refusing or unwilling to answer the magistrate's questions about the basis of her claim, and to infer from that that the application had no merit. The respondent submitted that, if a party was unable to articulate the substance of their claim, the judicial officer was entitled to infer that there was no substance to it, and that it was frivolous and vexatious.

Legal principles

With respect to the court's obligations towards a litigant in person, in Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 at [51] the Court of Appeal said:
What a judge ought to do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: the boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an extent that he or she cannot maintain a position of neutrality or so as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as is possible, the disadvantage which the litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored.
(citations omitted)
The court should not intervene to such an extent that the court acts unfairly towards the represented party or cannot maintain a position of neutrality in the litigation. However, the court should be careful to examine what is put to it in order to ensure that a self-represented litigant has not failed to put forward arguments that they might otherwise have done, through a lack of legal skill: Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 [28] and [29]; (1999) 84 FCR 438, cited with approval in Tobin v Dodd [2004] WASCA 288 at [14].
In an appropriate case the court should take steps to ensure, as far as possible, that the self-represented litigant has sufficient information about the practice and procedure of the court to overcome the procedural disadvantage such a litigant will have. However, that does not extend to advising the litigant on how they should exercise their rights, or to run their case for them: Woodley v Woodley [2018] WASCA 149 [76].
As was noted in the respondent's submissions, Martin CJ in Strahan v Brennan [2014] WASC 190 [89] - [90] held:
… it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine-tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions, in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
The rules of procedural fairness require the court to give each party a reasonable opportunity to be heard. What that constitutes is to be judged by reference to the interests of the parties, and also having regard to the public interest in the proper and efficient use of the public resources of the court: Rowe v Stoltze [2013] WASCA 92 Newnes JA [51].
With respect to summary dismissal of a claim, in Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104, the Court of Appeal made the following observation [7] - [8]:
In-person litigants with unmeritorious claims are appearing with increasing frequency in the courts. If a prima facie assessment leads a court to a view that the proceedings should be dismissed summarily on the basis that there is no reasonable prospect of succeeding, or on the basis that the grant of discretionary relief should be refused, or on the basis that the proceedings are an abuse of process, the appellant should be given the opportunity on proper notice to make submissions about why the proceedings should not be summarily dismissed.

Determination of grounds 1 and 2

It is somewhat difficult to discern the precise basis on which the magistrate determined to dismiss the claim.
Although at one point, the magistrate appears to have assumed from what the appellant was saying about her medical records and lack of sleep, that the appellant was not in a position to proceed to a final hearing on that day, and raised the issue of the matter being adjourned with the respondent's solicitor, the magistrate did not ask the appellant directly whether she was seeking an adjournment to another day, or look at the medical records the appellant said she had to determine if an adjournment was warranted, or required, nor did the magistrate expressly refuse to grant an adjournment.
In the reasons given for dismissing the application, the magistrate says she had made a finding that there was no merit in the application on the basis that the appellant had 'not been able to explain anything to me that indicates the merits of her application'. To the extent that this suggests a hearing on the merits had been undertaken, that is contradicted by the magistrate's reasons in the costs determination, in which she says, 'I have indicated that the application has no merit and so I've dismissed the application without hearing a trial'.
At no stage in her questioning of the appellant did the magistrate indicate she considered what the appellant might say to her to be evidence in the hearing of the application.
In my view, while appreciating the need not to over scrutinise the magistrate's reasons, the magistrate did not conduct a hearing on 20 April 2021, but rather invited the appellant to make a submission why the application should not be dismissed without a hearing.
There is no power under the RO Act to summarily dismiss an application for a final FVRO in circumstances where the applicant and the respondent to that application have both attended before the magistrate.
Section 42(1) of the RO Act provides that if an applicant does not attend the final order hearing the court, the court may dismiss the application, if it is satisfied the applicant was notified of the hearing, or may otherwise adjourn the hearing.
The application was not initially dismissed when the appellant failed to arrive on time, and accordingly, it was no longer open to the magistrate to dismiss the application under s 42(1). Nor was the magistrate asked to do so by Mr Kutasi for the respondent.
Of course, the magistrate would have been permitted to dismiss the application if, having attended court, the appellant had, in fact, had refused to proceed with the hearing of the application, or had refused to lead any evidence in support of the application.
However, in circumstances where the magistrate had determined the hearing should proceed on that day, in my view the magistrate had an obligation to explain the procedure that would be followed for the hearing to the appellant, and in particular that the appellant had an obligation to lead some evidence in support of her application or it would be dismissed.
Whilst the respondent based its submissions on the transcript indicating that the appellant was refusing to answer the magistrate's questions, the magistrate does not refer to the appellant 'refusing' to answer, either in the transcript or the reasons, nor does the magistrate refer to the appellant's conduct. Rather the magistrate says the appellant had been 'unable' to explain the merits of the application.
The magistrate did not directly ask the appellant if she was refusing to proceed with the hearing that day or refusing to give evidence in the hearing.
On my reading of the transcript, in any event, the appellant did not refuse to answer the magistrate's questions, nor had she refused to proceed with the final hearing, immediately before the magistrate dismissed the application. The appellant had first asked to be allowed assistance to do so from her support person as a McKenzie's friend, and, that being refused, had ultimately said expressly she would respond but wanted 'a moment' to think.
In my view, in all the circumstances, it was incumbent upon the magistrate at that point, before she had delivered a decision, to give the appellant the opportunity to collect her thoughts, and, perhaps, her equilibrium given the evidence of her demeanour at that stage of the hearing, at least by standing the matter down for a short while. As it was only 10.41 am it appears that could have been accommodated, without particular inconvenience, by calling on another matter in the interim.
In my view that was particularly the case in the context of an application for a FVRO, where the RO Act provides, in s 10B(2), that the primary matters to be considered are, relevantly, the need to ensure that a person at risk of family violence is protected from that violence.
With respect to the other evidence that the magistrate might have been referred to, the RO Act requires, under s 42(4) and s 42(5), that when a hearing proceeds the court is to admit as evidence any record of evidence, including any affidavit filed, at a prior hearing in relation to the application that is relevant to the application, if, relevantly, the person who gave the evidence is available to be cross-examined on that evidence.
This would include the transcript of the appellant's evidence given at the hearing on 29 September 2020, if it was available. It does not appear, from anything said by the magistrate, that she had the transcript of the proceedings on 29 September 2020, and it is not clear that it would have been available to her, despite the respondent's concession, given that it did not appear on the magistrate's court file provided to this court. In addition, the transcript identifies that it was certified on 9 June 2021, which suggests it may have been produced after 20 April 2021. If it did not exist at that time, the magistrate could not have seen it.
As mentioned earlier, there was also an affidavit on the court file dated 1 December 2020 which was sworn by the appellant in relation to an application for substituted service on the respondent, and which sets out the basis of her complaint against the respondent. Clearly, the magistrate was not aware of that affidavit, nor did the appellant draw it to her Honour's attention. Had it been drawn to the magistrate's attention, in my view, it could have been admitted in evidence at the hearing on 20 April 2021, being an affidavit at a prior hearing, that being for substituted service, which 'related to' the application for a FVRO.
Had the matter been stood down it may have been that the appellant, or her support person, would have recalled the affidavit that had been filed and drawn it to her Honour's attention. Alternatively, the appellant may have been in a position to give the evidence that she gave in the hearing on 29 September 2020.
It is clear from Mr Kutasi's affidavit that the hearing was fraught, and the appellant's behaviour and demeanour during the hearing were unhelpful in progressing her cause, to say the least. It is also apparent that the magistrate had a very busy list that morning. These factors obviously made the matter very difficult to deal with.
However, in my view, the learned magistrate erred in law in denying the appellant a reasonable opportunity to be heard, and in summarily dismissing the application without a hearing of the evidence.
Accordingly, grounds 1 and 2 of the appeal are upheld.

Ground 3

Section 44D(1) of the RO Act provides that in any proceedings under the RO Act a person seeking to be protected is entitled to have one or more support persons.
As counsel for the respondent submitted, the appellant did not request a support person, but rather sought to be represented by a McKenzie friend. Accordingly, the appropriateness of the appellant being represented by a McKenzie friend was the question the magistrate considered, rather than whether she could have a support person sit with her.
There is no challenge to the magistrate's failure to exercise her Honour's discretion to allow the appellant to be represented by a McKenzie friend. This perhaps recognises the nature of the discretion, which the authorities indicate should be exercised rarely, given that lawyers appearing before a court have duties to the court that lay people do not.
Whilst others may have taken a different view, it was clearly within the magistrate's discretion to refuse the request in the circumstances.
Ground 3 of the appeal is dismissed.

Ground 4

Under s 69 of the RO Act an order for costs is not to be made against an applicant in favour of the respondent unless the court considers the application was frivolous or vexatious.
The authorities which deal with what those words mean largely concern applications to strike out pleadings, or proceedings, on a summary basis, without hearing.
In Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62, in the context of a summary judgement application, Latham CJ said (84):
In the present case there is nothing frivolous about the action, but if a court is of the opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile.
In the same case Dixon J said (91) - (92):
[T]he inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of their rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.
In Pickering v Centrelink [2008] FCA 561 [27], McKerracher J said a matter is frivolous when it may be concluded that if, despite whatever attempts are made to discern a cause of action in a case, it is still not arguable, or it is without substance or groundless or fanciful. His Honour said that the words frivolous or vexatious are used either separately or in conjunction or interchangeably with the expression 'abuse of the process of the court'.
In Re Rules of the Supreme Court 1971 (WA) Ex parte Gates [2018] WASC 213, Vaughan J said as follows:
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too is a matter that is without substance was fanciful or frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and cannot possibly succeed.
It appears that the magistrate determined that costs should be awarded because of her finding that the application was 'without merit', which in turn was based on the appellant having failed to explain the basis of the application for a final FVRO to the magistrate's satisfaction in answer to the questions the magistrate had asked, noting that the appellant had made some general claims about the respondent's conduct in her answers.
Assuming that the magistrate made a finding the application was frivolous or vexatious, that is unarguable or untenable, there was no evidence upon which the magistrate could make that finding.
I do not accept the respondent's submission that the magistrate was entitled to infer that the appellant's application had no merit, and was frivolous and vexatious, from a failure to explain the basis of the claim in answer to questions asked by the magistrate. I have found that the magistrate was not conducting a hearing but asking for submissions before deciding whether to summarily dismiss the claim. However, even if the appellant had been asked, and refused, to give evidence, to rely on a lack of evidence from the appellant would be to effectively reverse the onus of proving the exceptional circumstances existed justifying an award of costs to the respondent.
Accordingly, ground 4 of the appeal is upheld.

Conclusion

I will allow the appeal on grounds 1, 2 and 4 and dismiss ground 3.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
25 FEBRUARY 2022