JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BLENKINSOP -v- HOLLAND [2018] WADC 146
CORAM: GETHING DCJ
HEARD: 25 JULY 2018
DELIVERED : 9 NOVEMBER 2018
FILE NO/S: APP 7 of 2018
BETWEEN: ROSS ALEXANDER BLENKINSOP
Appellant
AND
KIM ROSINA HOLLAND
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE PONTIFEX
File Number : MC/CIV/PER/RO/2106/2014
Catchwords:
Constitutional law - Whether the court has the power to declare a law to be invalid on the basis that it is not for the 'peace, order and good government' of the State
Appeal from Magistrates Court - Restraining orders - Standard of proof - Extent of relevance of provocation - 'Abuse' - 'Emotional abuse' - Exercise of the discretion to make a restraining order
Appeal from Magistrates Court - Effect of error of law as to admissibility or rejection of evidence - Whether the court must order a new trial - Scope of discretion to order a new trial - Adequacy of reasons
Procedural fairness - Adequacy of notice of the case to be met - Adequacy of disclosure of documents prior to trial - Adequacy of opportunity to cross‑examine - Adequacy of opportunity to present evidence‑in‑chief - Whether appellant waived right to object on the ground of bias - Whether actual bias established - Whether apprehended bias established
Evidence - Leading questions - Waiver of jointly held legal professional privilege - Use of material subject to jointly held legal professional privilege as between parties entitled to assert the privilege
Legislation:
Restraining Orders Act 1977, (WA) s 6(1), s 11A, s 44C, s 69(2)
Magistrates Court Civil Proceedings) Act 2004, (WA) s 43(7)
Magistrates Court Act 2004, (WA) s 31
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | In person |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40, 24
1110 Hay Pty Ltd as trustee for The Hay Street Trust v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Badran v Public Transport Authority of Western Australia [2017] WASCA 28
Balenzuela v De Grail [1959] HCA 1; (1959) 101 CLR 226
Baron v Walsh [2014] WASCA 124
Bennett v Carruthers [2010] WASCA 131
Brocklehurst v Wolinski [2015] WADC 36
Brown v Churchill [2006] WASCA 17
Building Construction Employees & Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372
Burns v Minister for Health [2012] WASCA 267
Butler v Bennett [2007] WADC 107
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Commissioner of Police (NSW) v Tanos [1958] HCA 6; (1958) 98 CLR 383
Commonwealth Bank of Australia v Rosebridge Nominees Pty Ltd [2005] WASCA 211
Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
East Metropolitan Health Service v Martin [2017] WASCA 7
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
Fried v National Australia Bank Limited (2000) 175 ALR 194
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Glew v Shire of Greenough [2006] WASCA 260
Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370, (2002) 76 ALJR 1024
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
HAR v The State of Western Australia [No 2] [2015] WASCA 249
Haydon-Wood v The State of Western Australia [2017] WASC 259
Hellings v The Queen [2003] WASCA 208
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kaporonowski v The Queen (1973) 133 CLR 209
Lindon v Kerr (1995) 57 FCR 284
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1
Manonai v Burns [2011] WASCA 165
Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (1995) 183 CLR 273
Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58
MJH v Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
MTI v SUL [No 2] [2012] WASCA 87
Myles v Carroll [2003] WASCA 160
Nationwide News Pty Ltd v Willis [1992] HCA 46; (1992) 177 CLR 1
Newell v R [1936] HCA 50; (1936) 55 CLR 707
Nobarani v Mariconte [2018] HCA 36
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275
Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303
Pickin v British Railways Boards [1974] AC 765
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, (1953) 88 CLR 100
R v Kelly; ex parte Hoang van Duong (1981) 28 SASR 271
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
R v Willliams; Ex Parte Lewis [1992] 1 Qd R 643
R v Wilson (1913) 9 Cr App R 124
Ramsay v Australian Postal Commission (2005) 147 FCR 39
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190
Rodway v R [1990] HCA 19; (1990) 169 CLR 515
Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112
Rowe v Stoltze [2013] WASCA 92
Sinanovic v The Queen (1998) 72 ALJR 1050
SJX v The State of Western Australia [2010] WASCA 243
Smart v Albuquerque [2011] WASCA 231
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stephens v Stephens [2010] FamCA 184
Stone v Braun [2015] WASCA 103
T v L [2006] WASCA 46
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Velez Pty Ltd v Tudor [2011] WASCA 218
Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Western Australia v Watson [1990] WAR 248
Wilson v White [2007] WASCA 87
Woodley v Woodley [2018] WASCA
GETHING DCJ:
Introduction
The appellant, Ross Blenkinsop, is the brother of the respondent, Kim Holland. On 15 December 2017, Magistrate Pontifex (Magistrate) granted the respondent a final violence restraining order (Final VRO) against the appellant. The appellant has appealed from that decision.
The proceedings in the Magistrates Court were conducted against a background of ongoing disputes, including Supreme Court litigation, involving the appellant, the respondent and other members of their family, and certain family trusts and companies.
For the reasons which follow the appeal should be dismissed with no orders as to costs.
Background
The respondent applied for an interim violence restraining order by application dated 12 September 2014. In the box headed 'Description of the Respondent's Behaviour', the appellant stated the following:
The respondent is my brother. He emails me many times per day and has done for a number of years. I have received many thousands of emails from him.
In the past I have blocked his email address. sent his emails to a separate file so that I don't have to read them, however, as we have family trusts, which require meetings I have been told by the chairman (SC Matt Zilko) that I need to receive these emails.
His emails are offensive, they intimidate, they are psychologically emotionally abusive. If he is asked to stop emailing this just encourages him to email even more.
He also humiliates, threatens attacks me through meeting agendas (ATT 1) (ATT2).
He calls me names such as 'rubber stamp' when I vote (ATT 3).
He accused me of threatening people, phoning people (ATT 4), making false accusations. These emails arrive on a daily basis – sometimes up to 30+ per day and he includes lawyers and other siblings in the email address bar.
I feel exhausted mentally + emotionally + am put into situations such as board meetings where I am humiliated + offended. This behaviour has gone on for many years + is very constant.
The respondent appeared before two Justices of the Peace on 12 September 2014 and obtained an interim violence restraining order (Interim VRO).[1]
[1] The transcript of this hearing is annexed to the Magistrate's Reasons.
On 26 September 2014 the appellant lodged an objection to the Interim VRO.
The matter took some considerable time to reach a final order hearing. This took place over 7 hearing days between June 2016 and February 2017.[2] Final submissions were received by 29 September 2017. The Magistrate delivered her decision on 15 December 2017, publishing written reasons (Magistrate's Reasons). The orders were that (Magistrate's Decision):
[2] 23 and 24 June 2016, 2, 3 and 4 November 2016, 8 and 9 February 2017.
(a)the Interim VRO be made final; and
(b)the Final VRO remain in force until midnight on 15 December 2017 (that is, the day on which the Magistrate delivered her decision).
As the magistrate observed in her reasons, the Interim VRO ended up remaining in place for over 3 years, longer than it would have been in place for had there been no objection.[3]
[3] Magistrate's Reasons, par 1.
I have extracted various portions of the Magistrate's Reasons below in the context of the ground of appeal challenging that aspect of the reasons.
District Court Appeal
A decision of a magistrate to make a Final VRO under the Restraining Orders Act 1997 (WA) (ROA) may be the subject of an appeal to the District Court.[4] The appeal is to be made in accordance with Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) pt 7.[5]
[4] ROA s 64(1)(b)(ii).
[5] ROA s 64(2).
By appeal notice filed 12 January 2018 (Appeal Notice) the appellant commenced an appeal from the Magistrate's Decision. The appeal was commenced 28 days after the judgment was given in the Magistrates Court. The time within which the appeal was required to be commenced was 21 days after the date of the Magistrate's Decision.[6] The provisions of Rules of the Supreme Court 1971 (WA) (RSC) which provide for the Christmas holiday period to be excluded when calculating filing deadlines do not apply to a statutory time period.[7] To the extent that there is an equivalent statutory provision, it only excluded the three public holidays.[8] This means that the Appeal Notice was filed four days out of time. The District Court can give leave to file out of time.[9] As the delay was short and encompassed the Christmas holiday period, it is an appropriate exercise of the principles governing the exercise of this discretion[10] for the appellant to be granted leave to file out of time.
On 14 February 2018 the respondent filed a Notice of Respondent's Intention in which she advised the court that she would argue that the Magistrate's Decision should be upheld on the grounds relied on by the Magistrate.
The District Court must decide the appeal on the material and evidence that was before the Magistrates Court.[11] The court can give leave to admit other evidence, but only in exceptional circumstances.[12] By application dated 11 May 2018, the appellant applied to adduce further evidence in the appeal. This had been flagged in ground of appeal 100. I heard this application on 25 July 2018 and declined to permit the appellant to adduce the evidence. My reasons for doing so are set out in the transcript of that hearing.[13]
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[14] It is not the role of the appeal court to retry the facts or to substitute its own view of the facts for that of the magistrate.[15] Rather, the appeal is to be undertaken by way of a rehearing.[16] As a rehearing, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[17] The onus is on the appellant to demonstrate this error.[18]
Issues arising for determination
[6] MCCPA s 40(3)
[7] Rules of the Supreme Court 1971 (WA) O 3 r 3.
[8] Interpretation Act 1984 (WA) s 5, s 61.
[9] MCCPA s 40(3).
[10] As to which, see: Labib v Histon [2017] WADC 39 [40] – [41] (Gething DCJ).
[11] MCCPA s 40(4)(a).
[12] MCCPA s 40(4)(b), s 40(5).
[13] District Court ts, pp 36-37.
[14] District Court Rules 2005 (WA) (DCR) r 50(1).
[15] Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J).
[16] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[17] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[18] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
The appellant annexed to the Appeal Notice a document setting out 100 grounds of appeal. At the conclusion of the grounds of appeal, the appellant added that:
My computer died and I have been unable to retrieve a copy of my 290 page submissions. I seek leave to add further grounds for appeal when I do.
At the hearing before me, I advised the appellant that his 290 page outline of submissions which he filed in the Magistrates Court (Appellant's MC Submissions) was in the materials that had been provided to the District Court. He invited me to consider the Appellant's MC Submissions, which I have.
The grounds of appeal are elaborated upon in an outline of submissions filed 22 May 2015 (Appellant's Submissions). At various points in the Appellant's Submissions he seeks to add further grounds of appeal.[19] These grounds essentially repeat issues already canvassed in some detail in the annexure to the Appeal Notice. Accordingly, I have not considered them separately.
[19] Appellant's Submissions, pages 14 - 15, 37, 41.
The respondent did not file any submissions, and only made short oral submissions at the hearing of the appeal.
There is a lot of duplication in the grounds of appeal. It is convenient to group the grounds of appeal into 10 categories, and within those categories to consider related grounds of appeal together. The categories are grounds involving:
•Constitutional issues
•The proper interpretation of the ROA
•Procedural fairness
•Findings on demeanour and credibility
•Matters of evidence
•Factual findings relating to acts of abuse
•Factual findings relating to future conduct and the duration of the order
•Error in the exercise of discretion
•Bias
•Inadequacy of reasons
These categories are addressed in pts 6 to 15. Part 5 contains a summary of the relevant statutory framework.
The appellant was admitted to the roll of legal practitioners in 2007.[20] It is not clear on the materials before me whether he held a practising certificate at any material time. Both at first instance and on the appeal he appeared in his own right. It is appropriate that I treat him as a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[21] I approach the documents in which he articulates his appeal with some flexibility.[22] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[23] At the same time, I also need to ensure that any latitude given to the appellant as a litigant in person does not deprive the respondent of her rights to procedural fairness and a fair hearing.[24] I also need to extend the same latitude to the respondent, who is also a litigant in person, again with the caveat that I ensure that, in doing so, I do not deprive the appellant of his rights to procedural fairness and a fair hearing.
[20] As revealed by a search of the Law Almanac.
[21] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[22] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[23] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[24] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
Statutory framework
It is instructive at the outset to set out the statutory framework in the ROA under which the Final VRO was made.
The ROA was the subject of a number of significant amendments coming into effect on 1 July 2017, that is, after the date on which the trial commenced but before the date on which the Magistrate's Decision was made. The Magistrate expressly dealt with this issue, determining that the application was to be determined on the basis of the law as it stood prior to the amendments coming into effect.[25] There is a distinction between substantive law and procedural law. In relation to substantive law, the position outlined by the Magistrate is a correct application of Interpretation Act 1984 (WA) s 37. However, that section does not apply to procedural law, for example, provisions relating to the admissibility of evidence. 'No person has a vested right in any particular course of procedure'. [26] Accordingly, the applicable law is that which applies at the time of the trial. However, where the amendment takes effect after the commencement of the trial, but before its conclusion, the applicable procedural law will be as at the commencement of the trial.[27] So the position is the same, but by a slightly different path. The provisions which follow are as at 23 June 2016, the day on which the trial commenced. There was no relevant amendment to a substantive provision between that date and the date on which the application was commenced, 12 September 2014, this being the date on which it may be said that the respondent's substantive rights, and the appellant's substantive obligations, accrued under the ROA.
[25] Magistrate's Reasons, par 7, citing Interpretation Act 1984 (WA) s 37.
[26] Burns v Minister for Health [2012] WASCA 267 [18] (Martin CJ, with whom Newnes JA agreed).
[27] Rodway v R [1990] HCA 19; (1990) 169 CLR 515, 519 - 521 (judgment of the court), in particular the discussion of the decision in Newell v R [1936] HCA 50; (1936) 55 CLR 707.
ROA s 11A sets out when a violence restraining order may be made:
11A.When violence restraining orders may be made
A court may make a violence restraining order if it is satisfied that —
(a)the respondent has committed an act of abuse against a person seeking to be protected and the respondent is likely again to commit such an act against that person; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, reasonably fears that the respondent will commit an act of abuse against the person seeking to be protected,
and that making a violence restraining order is appropriate in the circumstances.
The term 'act of abuse' relevantly means 'an act of family and domestic violence'.[28] This is because the appellant and respondent are related as brother and sister.[29] Although the appellant challenged this point before the Magistrate[30], he did not take this point in the appeal.
[28] ROA s 3.
[29] ROA s 4(1)(c).
[30] Magistrate's Reasons, par 16.
The term 'act of family and domestic violence' is defined in expansive terms:[31]
[31] ROA s 6(1).
act of family and domestic violence means one of the following acts that a person commits against another person with whom he or she is in a family and domestic relationship —
(a)assaulting or causing personal injury to the person;
(b)kidnapping or depriving the person of his or her liberty;
(c)damaging the person's property, including the injury or death of an animal that is the person's property;
(d)behaving in an ongoing manner that is intimidating, offensive or emotionally abusive towards the person;
(e)pursuing the person or a third person, or causing the person or a third person to be pursued —
(i) with intent to intimidate the person; or
(ii) in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, the person;
(f)threatening to commit any act described in paragraphs (a) to (c) against the person.
The term 'intimidate' is defined to have the same meaning as in The Criminal Code s 338D.[32] That definition is:
intimidate, in relation to a person, includes —
(a)to cause physical or mental harm to the person;
(b)to cause apprehension or fear in the person;
(c)to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;
(d)to compel the person to do an act that the person is lawfully entitled to abstain from doing;
[32] ROA s 6(4).
The ROA prescribes a series of factors which the court is to have regard to in considering whether to make a violence restraining order and the terms of the order:[33]
[33] ROA s 12(1).
(1)When considering whether to make a violence restraining order and the terms of the order a court is to have regard to —
(a)the need to ensure that the person seeking to be protected is protected from acts of abuse; and
(b)the need to prevent behaviour that could reasonably be expected to cause fear that the person seeking to be protected will have committed against him or her an act of abuse; and
(ba)the need to ensure that children are not exposed to acts of family and domestic violence; and
(c)the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order; and
(d)the accommodation needs of the respondent and the person seeking to be protected; and
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not; and
(e)hardship that may be caused to the respondent if the order is made; and
(f)any family orders; and
(g)other current legal proceedings involving the respondent or the person seeking to be protected; and
(h)any criminal record of the respondent; and
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and
(j)other matters the court considers relevant.
Of these matters, the matters in paragraphs (a), (b), (ba) and (c) are 'of primary importance'.[34]
[34] ROA s 12(2).
It is open to an applicant for a restraining order to have the first hearing of the application held in the absence of the respondent (whom I will refer to as the VRO Respondent so as to avoid confusion with the respondent in the present appeal).[35] That is what occurred in the present case. On a hearing in the absence of the VRO Respondent, the court has the power, among other orders, to make a violence restraining order.[36] Again, that is what occurred in the present case. As the order made was for a duration of more than 72 hours, the order was an interim order to which ROA Div 4 applied.[37]
[35] ROA s 26(1)(a).
[36] ROA s 29(1)(a).
[37] ROA s 29(3).
The Interim VRO was made by two Justices of the Peace.
The Interim VRO having been made, it was served on the appellant on 12 September 2014. The appellant notified the court that he objected to the interim order being made final. In that circumstance, the ROA provides for a final order hearing to be listed.[38]
[38] ROA s 33.
Where, as in this case, both the applicant (who was available to be cross-examined) and VRO Respondent attend the final order hearing, 'a court is to admit as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the application that is relevant to the application'.[39] That is what occurred in the present case, with the transcript of the hearing at which the Interim VRO was granted being annexed to the Magistrate's Reasons.
[39] ROA s 42(4)(b).
Having complied with ROA s 42, 'at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate'.[40]
[40] ROA s 43.
Grounds involving constitutional issues
6.1 Is the ROA constitutionally invalid because of the way costs are dealt with?
The appellant asserts that the ROA is not constitutionally valid on three bases. The first is set out in appeal ground 37, and relates to the costs provisions:
37.Under the ROA a Protected Person can automatically get their costs, except under exceptional circumstances. An accused can only get their costs under exceptional circumstances. Procedural unfairness is hard wired into the ROA and it is therefore unconstitutional. Her honour made a mistake of fact or law in considering that the ROA is constitutionally valid.
The issue of the constitutional validity of the ROA based on the costs issue was not addressed by the Magistrate. It was only obliquely addressed in the Appellant's MC Submissions.[41]
[41] Appellant's MC Submissions, page 289.
The relevant provision as to costs complained about by the appellant is that a 'court is not to order an applicant for a restraining order to pay costs to the respondent unless it considers the application was frivolous or vexatious'.[42]
[42] ROA s 69(2).
The power of the Parliament of Western Australia to make laws is set out in Constitution Act 1889 (WA) (WA Constitution) s 2. The power is 'to make laws for the peace, order and good Government of the Colony of Western Australia'. This power is plenary as regards the territory of Western Australia.[43] It is for Parliament, not the courts, to determine whether a law is for the 'peace, order and good government' of a State.[44] The words 'do not confer on the Courts of a State … jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government' of the State.[45]Nor is State legislative power subject to any limitations respecting fundamental human rights.[46]
[43] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 9 - 10 (judgment of the court); Glew v Shire of Greenough [2006] WASCA 260 [9] (Wheeler JA, with whom Pullin & Buss JJA agreed).
[44] Building Construction Employees & Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 405 (Kirby P).
[45] Union Steamship (10).
[46] Pickin v British Railways Boards [1974] AC 765, 782 (Lord Reid); Grace Bible Church v Reedman (1984) 36 SASR 376, 383 - 384 (Zelling J), 385 (White J); Nationwide News Pty Ltd v Willis [1992] HCA 46; (1992) 177 CLR 1, 43 (Brennan J).
There is thus no basis on which it could be said that the WA Constitution did not empower the WA Parliament to enact the ROA based on the matters asserted in ground of appeal 37. Accordingly, the appellant has not established ground of appeal 37.
6.2 Is the ROA constitutionally invalid because provocation is not a defence?
As to the second basis, in grounds of appeal 38, 43 and 96[47] the appellant asserts that the ROA is not constitutionally valid because provocation is not able to be raised as a defence:
[47] There are two grounds of appeal numbered 96. I will refer to the first as '96' and the second as '96a'.
38.Because provocation is not permitted as a defence to a VRO claim the ROA leads to unjust results. Because intention is not an element to a VRO claim the ROA leads to unjust results. Legislation that can so readily lead to an unjust result is unconstitutional. Her honour made a mistake of fact or law in considering that the ROA is constitutional.
…
43.Her honour made a mistake of fact or law in considering that I was not permitted to raise the defence of provocation when under the treaty for human rights, to which Australia is a signatory, I am permitted to raise any defence. Further as a result of the foregoing any legislation that limits a litigant raising a particular defence is unconstitutional.
…
96.It is my understanding the ROA does not permit provocation as a defence which ultimately results in unjust outcomes. As such it is unconstitutional. As I indicated with my baseball bat analogy provocation is patently legitimate defence. Further according to the human right treaty to which Australia is a signatory I am free to argue any defence.
The Magistrate dealt with the issue of whether provocation can amount to a defence under the ROA:[48]
I pause to note at this point that I do not accept that provocation is a 'defence' to his application under the ROA. As I have stated above what must be established by the applicant is that an act of family and domestic violence has been committed against her by the respondent, that he is likely to commit such an act again and that it is appropriate in the circumstances to make the interim order final. The defence of provocation arises under s 246, of the Criminal Code. As the acts of family and domestic violence which Mrs Holland alleges do not include assault, provocation is not applicable to this matter as it only applies to a criminal offence of which assault is an element [Kaporonowski v The Queen (1973) 133 CLR 209]. The question is whether the making of a VRO is appropriate in all the circumstances.
[48] Magistrate's Reasons, par 26.
The position as regards the interrelationship of the defence of provocation in Criminal Code s246 and the ROA is comprehensively addressed by the Court of Appeal in Lydon v Lydon:[49]
This ground is that Bowden DCJ erred in dismissing the ground of appeal that the magistrate totally disregarded the defence of provocation.
The particulars to this ground of appeal to the District Court were that s 246 of the Criminal Code (WA) (the Code) provides a complete defence to the issue of a restraining order. Bowden DCJ observed that it was incorrect to refer to a defence with regards to a restraining order. His Honour said that it was up to the applicant to establish on the balance of probabilities that a restraining order should be granted in terms of the Act.
Section 11A of the Act provides that a court may make a violence restraining order if it is satisfied that, amongst other things, the respondent has committed an act of abuse. Act of abuse is defined by s 3 to mean 'an act of family and domestic violence or an act of personal violence'. Act of family and domestic violence is defined in s 6(1) of the Act to mean one of the acts specified in the six following paragraphs that a person commits against another person with whom he or she is in a family and domestic relationship. Paragraph (a) is the act of 'assaulting or causing personal injury to the person'.
Bowden DCJ observed that the appellant contended that because of the reference to 'assault' in s 6 of the Act, that in considering whether there has been an assault within the meaning of the Code and therefore within s 6 of the Act, one would have to consider the defence of provocation. Bowden DCJ said that that was misconceived because the basis upon which the magistrate found an act of abuse committed by the appellant towards each of the respondents was that he was emotionally abusive towards them. Bowden DCJ said that s 246 of the Code only applies to offences of which assault is an element and could not apply and does not apply to 'emotional abuse'. Bowden DCJ went on to observe that the actions of the respondents in the appeal were not irrelevant as to whether or not a restraining order ought to be granted. Their conduct is a matter to be taken into account.
Bowden DCJ made no error in dealing with the ground of appeal before him. This ground of appeal has not been made out.
[49] Lydon v Lydon [2008] WASCA 8 [30] – [34] (Le Miere AJA with whom Pullin JA agreed).
The position expressed by the Magistrate is entirely consistent with the position adopted by the Court of Appeal in Lydon v Lydon. It follows that as the acts of abuse asserted by the respondent did not include any assault, the issue of provocation does not arise in the present application.
As to whether the ROA is thereby constitutionally invalid, the principles I set out at [37] apply equally. There is no basis on which it could be asserted that the WA Constitution did not empower the WA Parliament to enact the ROA based on the position as regards provocation.
As to the argument that the ROA is inconsistent with 'the treaty for human rights', the appellant did not specifically identify which international obligation the ROA was inconsistent with.
I assume that it is a reference to the International Covenant on Civil and Political Rights (Covenant). For the reasons that follow, I do not need to consider whether the Covenant gives the appellant any right which is relevant to the determination of whether a final violence restraining order should have been granted in this case.
The Covenant is set out in sch 2 to the Australian Human Rights Commission Act 1986 (Cth). It is also referred to in the Criminal Code Act 1995 (Cth). However, neither of these references has the effect that the Covenant has been incorporated into, or become part of, Australian Commonwealth domestic law.[50] So there is no basis on which it could be asserted that the ROA is thereby constitutionally invalid on the basis that it is, to a relevant extent, inconsistent with a Commonwealth law pursuant to Commonwealth of Australia Constitution Act s109 (Cth Constitution).
[50] See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305 - 306 (Mason CJ and McHugh J), 321 (Brennan J), 348 - 349 (Dawson J), 359 - 360 (Toohey J); Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (1995) 183 CLR 273, 286 - 287 (Mason CJ and Deane J); Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416, 480 - 482 (Brennan CJ, Toohey, Gaudron, McHugh & Gummow JJ); Sinanovic v The Queen (1998) 72 ALJR 1050, 1054 [25] (Kirby J); Wilson v White [2007] WASCA 87 [23] (Buss JA with whom Wheeler & Buss JJA agreed).
The appellant has not established that the Magistrate erred on the basis of grounds of appeal 38, 43 or 96.
6.3 Is the ROA constitutionally invalid on the ground that it discriminates based on gender?
The third basis is set out in ground of appeal 36:
36.Her honour made a mistake of fact or law in considering that the Restraining Orders Act (ROA) does not discriminate based on gender.
The appellant elaborates on his concerns in the Appellant's Submissions:[51]
See my submissions in the lower court. The vast majority of VROs are brought by women against men and the way costs work in a VRO matters discriminates against the alleged perpetrator whether they are innocent or not.
[51] Appellant's Submissions, page 25.
The Magistrate dealt with this issue, rejecting the argument:[52]
The respondent submitted that the ROA discriminates on the basis of gender and is unconstitutional rendering the VRO granted in this matter invalid. The submission is not only made without any evidentiary basis, it is a complete nonsense.
[52] Magistrate's Reasons, par 48.
The appellant elaborates the point in ground of appeal 64:
64.I refer to paragraph 48 her honours reasons. As a member of the judiciary her honour would, or should, be aware that the majority of family violence and abuse is perpetrated by men. This point should have been taken on Judicial Notice, and as such no evidence was required. It appears her Honour has erred.
I note her honour made findings in favour of Kim with no requirement on Kim to produce evidence, even though evidence was, or should, have been available for Kim to produce. In contrast her honour does not making findings in my favour citing a lack of evidence. It appears her honour was biased. I also here refer to my other grounds of appeal, mutatis mutandis, to this ground.
For the reasons set out at [37], there is no basis on which it could be asserted that the WA Constitution did not empower the WA Parliament to enact the ROA on the ground that it discriminates based on gender. Nor has the appellant drawn my attention to any relevant inconsistency with Commonwealth law for the purposes of Cth Constitution s 109. I deal with the issue of bias in pt 14.
The appellant has not established that the Magistrate made an error on the basis of grounds of appeal 36 and 64.
6.4 Were the proceedings illegal on the ground that they were court sanctioned victimisation of a whistleblower?
This assertion is made in ground of appeal 33:
33.Her honour made a mistake of fact or law in not considering the proceedings illegal as they were a simply court sanctioned victimisation of a whistleblower.
The appellant elaborates on this ground in the Appellant's Submissions:[53]
I am a whistleblower pursuant to section 9.4AAA of the Corporations Act. It is a criminal offence to persecute a whistleblower. I bought it to the attention of the directors that Scott blackmailed Chris and that Kim threatened me to coerce me to sign documents.
My actions satisfy the criteria of a whistleblowers as set out in section 9.4AAA of the Corporations Act.
Kim is using the VRO and Police charges as court sanction persecution of a whistleblower. The Stat should not be complicit in such behaviour.
[53] Appellant's Submissions, page 24.
I do not need to decide whether or not the appellant made a disclosure qualifying for protection pursuant to Corporations Act 2001 (Cth) (CA) s 1317AA. This is because, even if such a disclosure were made, there is nothing in CA Part 9.4AAA which would render illegal an application pursuant to the ROA in some way connected to the disclosure.
The appellant has not established ground of appeal 33.
Grounds involving interpretation issues
The second group of grounds of appeal raise issues as to the proper interpretation of the ROA.
7.1 Was the court which granted the interim VRO properly constituted?
The appellant asserts that the court which granted the interim VRO, constituted of two Justices of the Peace, was not properly constituted. Specifically, ground 21a provides:
21a.Her honour made an error of fact or law in determining that the court that granted the IVRO (2 JPs) was properly constituted as the presumption that the court was properly constituted was rebutted. Not a single shred of evidence was admitted establishing that the court was constituted, after the rebuttal. It appears her honour has again made an error in favour of the Protected Persons case.
The Magistrate dealt with this issue in her reasons:[54]
Mr Blenkinsop asserted that this Court does not have jurisdiction to hear, determine and issue violence restraining orders, either generally or as constituted on the 12 September 2014. This Court has the jurisdiction conferred on it by the Magistrates Court Act 2004 and by any other written law [Magistrates Court Act 2004 s 9]. It is to be presumed in respect to any case dealt with by the Court, that the Court was constituted according to law and had jurisdiction to deal with the case [Magistrates Court Act 2004 s 34(1)]. These presumptions apply in the absence of proof to the contrary [Magistrates Court Act 2004 s 34(7)]. Jurisdiction in respect of restraining order applications made in person is conferred on this Court by a written law being s25 ROA. Two Justices of the Peace sitting together may deal with an application made under the ROA at a hearing in the absence of the respondent fixed under s 26(2) of that Act [Magistrates Court Act 2004 s 7; Magistrates Court Regulations 2005 r 5(1)]. The initial hearing of the application on the 12 September 2014 was such a hearing. I reject the respondent submission as to jurisdiction.
[54] Magistrate's Reasons, par 8.
The Magistrate correctly identified the relevant legislative framework in the Magistrates Court Act 2004 (WA) (MCA).
It is apparent from the transcript of the hearing at which the Interim VRO was granted that the Magistrates Court was constituted by two justices of the peace.
The appellant did not direct my attention to the evidence which he asserted rebutted the presumption that the court granting the Interim VRO was not properly constituted. Nor was this evidence apparent to me on my review of the materials before the court.
In relation to this ground the appellant added the following at the hearing of the appeal:[55]
THE APPELLANT: Well, no. I'm saying that the court was not properly constituted because under the Magistrate's Court Act, two - for two JPs to hear a matter - the Magistrate's Court, the Chief Magistrate's Court has to issue letters each day empowering those two JPs to hear the particular matter. And I checked the court file and there were no letters on the court file.
So each day the chief magistrate, if JPs are hearing a matter, each day the chief magistrate, or you know, a specified person, has to issue these letters, authorising the two JPs to hear matters.
Now if those letters aren't issued then the court is not constituted.
GETHING DCJ: Okay. Understood.
THE APPELLANT: And I checked the court file and no letters on the court file. So I'm saying well the court that issued the initial VRO was not properly constituted.
[55] District Court ts, page 83.
This submission by the appellant appears to be a reference to the procedure in Magistrates Court Regulations 2005 (WA) (MCR) r 4:
(1) A JP must not constitute a metropolitan court, either alone or with another JP, unless he or she has been requested to do so by —
(a) a registrar; or
(b) a deputy registrar who has been directed by a magistrate or a registrar to make the request.
(2) A registrar must not request a JP to constitute a metropolitan court, and a registrar must not direct a deputy registrar to make such a request, unless —
(a) a magistrate has requested that the court be constituted by JPs; or
(b) it is not practicable for a magistrate to constitute the court at the time when and the place where the court has to sit.
However, there is no requirement that I am aware of that the request be placed on the court file of each and every matter which the justices of the peace deal with in the course of a list. In other words, even if I accept what the appellant says from the bar table (which is not evidence), the fact that there was no letter along the lines of the request in MCR r 4 on the Magistrate Court file for the current matter does not prove that no such request was made. On the evidence before me there is no proof that the court which granted the Interim VRO was not constituted according to law, so the presumption that it was continues to apply.[56]
[56] MCA s 34(1), (7).
The appellant has not established ground of appeal 21a.
7.2 What is the scope of the decision on a hearing to grant a Final VRO?
In ground 49 the appellant asserts that the question for the Magistrate on a hearing to determine whether the Final VRO should have been granted was limited to whether the Interim VRO should have been granted. The consequence is that the evidence is limited to the evidence before the court hearing the Interim VRO:
49.Kim got an IVRO based on evidence put to 2 JPs in an exparte hearing. The question to be tried is should have those 2 JPs granted Kim an IVRO based on the evidence presented to them, that day, and only on that evidence. Her honour made an error thinking the question to be tried was some other question. Her honour also erred in thinking that evidence, other than the evidence before the 2 JPs that day, could be considered. I repeat all other grounds of appeal here mutatis mutandis. My rights and obligation were seriously altered that day including enlivening the police jurisdiction imprison me or fine me a maximum of $6000.00 or both.
The same issue is expressed in grounds of appeal 2, 34 and 57:
2.The Magistrate allowed the Protected Person to admit inadmissible evidence. It appears the Magistrate allowed the Protected Person to admit inadmissible evidence. It appears her honour considered that inadmissible evidence and so has made an error of fact and law.
…
34.Her honour made a mistake of fact or law in admitting, and considering, evidentiary materials that Kim had not seen or considered prior to 12 September 2014.
…
57.I note her honour has made an error of fact or law as she has listed, and probably considered, an email sent after the date of the IVRO, which was not sent to Kim, and was sent with explicit instruction to not send to Kim, which was inadmissible as evidence. I repeat all other grounds of appeal here mutatis mutandis.
In relation to this issue, the Magistrate stated:[57]
When Mrs Holland appeared before the Court on the 12 September 2014 and obtained the interim order her evidence was self-evidently confined to events occurring up to that date. The transcript of her evidence at the ex parte interim order hearing was available to the Court and referred to in the course of the final order hearing. It appears as Annexure F to these reasons. There is nothing in the ROA to prevent the introduction of further competent evidence by any party at a final order hearing.
[57] Magistrate's Reasons, par 31.
The power of the court to make a final order at a final order hearing is set out in ROA s 43. Subject to compliance with the procedural matters set out in ROA s 42, 'a court may make a final order of the type, and with the terms, the court considers appropriate'.[58] The question for the court at the final order hearing is thus whether or not a final order should be made and, if so, on what terms. The final order hearing is not in the form of an inquiry into whether the interim violence restraining order should have been made. It is not in the nature of an appeal or review of the decision to grant the interim violence restraining order.
[58] ROA s 42.
Further, there is nothing in the ROA which expressly limits the evidence which the court hearing the final order hearing may consider to the evidence before the court hearing the interim violence restraining order. If there is an implied limitation, it must be ascertained by implication from the subject matter, scope and purpose of the ROA as a whole.[59] I am not able to discern an implied limitation along the lines asserted by the appellant from these sources.
[59] Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 – 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).
The evidence from the interim order hearing may be admitted at the final order hearing.[60] But the evidence at the final order hearing is not limited to this evidence. It is open to an applicant to adduce further evidence as to the matters raised at the interim order hearing. For example in Baron v Walsh the evidence relied on for the purposes of the final violence restraining order included matters arising after the issue of the interim violence restraining order. [61] The Court of Appeal specifically referred to these matters as being matters that were relevant to the determination of whether acts of abuse had occurred.[62] Further, in that case, the magistrate did not rely on the affidavits filed for the purposes of the interim violence restraining order hearing. Rather, the magistrate required the parties to give evidence in chief by viva voce evidence.[63] Again, this was not the subject of criticism by the Court of Appeal.
[60] ROA s 42(4) and (5).
[61] Baron v Walsh [2014] WASCA 124. [31] – [40] (McLure P, with whom Mazza JA & Chaney J agreed).
[62] Baron v Walsh [60] – [62].
[63] Baron v Walsh [69].
Indeed, limiting the inquiry to the evidence before the court when the interim violence restraining order was granted without the respondent being present, would have the effect of denying the respondent the opportunity to place before the court evidence in opposition to the application. This is in the context of the requirement of the court to consider, among other factors, the 'hardship that may be caused to the respondent if the order is made'.[64]
[64] ROA s 12(1)(e).
The appellant has not established that the Magistrate erred as set out in grounds of appeal 2, 34, 49 and 57.
7.3 Is the Interim VRO an interim order or a final order?
Ground 3 asserts that:
3.The Magistrate made an error of law in determining an IVRO was not a final hearing that substantially altered the rights/obligations of the parties, or a party.
The Magistrate addressed this issue in her reasons:[65]
The respondent further submitted that an interim hearing is in fact a final hearing as it substantially alters the rights and obligations of the respective parties. A final order hearing it is argued, is in the nature of an appeal or the setting aside of a judgment. The rights of appeal provided for under the ROA are those provided for by s64 of the Act which do not permit this Court to hear an appeal against a decision of this Court to make an interim order. Further to the extent that rights of appeal are granted, those appeals and are to be made to Courts other than this Court. The only power in the ROA to set aside a decision is in relation to a decision made in default of appearance [ROA s 43A] or in default of objection to the interim order becoming final [ROA s 32]. Neither of these powers are relevant to this matter. This submission has no merit.
[65] Magistrate's Reasons, par 9.
The question of whether the making of an interim violence restraining order is or is not a final hearing is of no consequence. The ROA sets out a procedure. That procedure allows for the making of an interim violence restraining order in the absence of the VRO Respondent.[66] Once made, the interim violence restraining order imposes restraints on the VRO Respondent according to its terms.[67] It also exposes the VRO Respondent to criminal penalties if he or she breaches the interim violence restraining order.[68] This is subject to a defence.[69] In this way, the clear and intended effect of the ROA is to alter the rights and obligations as between the person protected by the interim VRO and the VRO Respondent. This alteration may well be able to be characterised as 'substantial' on the facts of a particular case.
[66] ROA s 29(1)(a).
[67] ROA s 13.
[68] ROA s 63(1) read with the definition of ‘violence restraining order' in ROA s 3.
[69] ROA s 62.
The VRO Respondent then has the opportunity to object to the interim violence restraining order becoming final, including the right to be heard on that issue.[70]
[70] ROA s 31, s33.
In this case, the appellant has not satisfied me that the Magistrate failed to correctly apply the procedure set out in the ROA. Nor has the appellant satisfied me that the justices of the peace who made the Interim VRO failed to apply the correct procedure as set out in the ROA.
The appellant has not established ground of appeal 3.
7.4 What is the standard of proof?
The Magistrate stated that the respondent bore the onus of proof in the application and that the standard of proof is the balance of probabilities.[71]
[71] Magistrate's Reasons, par 2.
Ground 21 asserts that the Magistrate erred in the onus of proof. However, in context, it is properly considered to be a reference to the standard of proof:
21.Her honour made an error of fact or law in determining that the onus of proof was the balance of probabilities. When the Protected Person makes numerous, significant and frequent fabrications the onus should be higher than this standard. It appears her honour has again made an error of fact that favoured the Protected Persons case.
The ROA provides that a reference to the court being 'satisfied' in relation to a restraining order means 'satisfied on the balance of probabilities'.[72]
[72] ROA s 3; Myles v Carroll [2003] WASCA 160 [12] (EM Heenan J).
However, as EM Heenan J observed in Myles v Carroll, in applying this test, the court must have regard to the seriousness of the allegations made: [73]
For a court to be satisfied of the existence of one or more of the grounds for making a restraining order it must be satisfied of the existence of that ground or grounds on the balance of probabilities – s 3. This has long been accepted as constituting the civil standard of proof which, however, necessarily has regard to the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding in affecting the question of whether the allegation has been proved - Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. This means that in civil litigation the standard of proof on the balance of probabilities remains even where the matter to be proved involves criminal conduct or fraud, but that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. This reflects the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding, on the balance of probabilities, that a party to civil litigation has been guilty of such conduct – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
[73] Myles v Carroll [12].
In the present case, the acts of abuse alleged by the respondent were not particularly serious having regard to the range of potential acts of abuse able to constitute an act of family and domestic violence.[74] As the Magistrate observed, the acts of family and domestic violence which the respondent established 'are towards the lower and less serious end of such conduct and do not involve any physical violence or threats of physical violence'.[75] In those circumstances, there was no justification to apply the principles set out in Briginshaw v Briginshaw.
[74] ROA s 6.
[75] Magistrate's Reasons, par 49.
The appellant has not established that the Magistrate made the error set out in ground of appeal 21.
7.5 Is the test objective or subjective?
Ground 6 of the appeal raises the issue of whether the test for the issue of a final violence restraining order is objective or subjective:
6.The Magistrate made an error of fact and/or law in determining that the appropriate test was solely an objective test when the appropriate test was an objective test and if the circumstances permitted alternatively a subjective test. In this case that threshold was surpassed.
This is tied into ground 26 which challenges the Magistrates reliance on the decision in Baron v Walsh:[76]
26.Her honour made an error of fact or law in concluding that the case of Baron v Walsh was applicable to this case. There was no ongoing behaviour. As outlined above the objective standard is not the proper standard in this case. Given the circumstance of this case 'intent' is an element of this matter, and of VRO generally. For instance if a Protected Person stepped off a bus and the accused, by pure coincidence happened to be right there and the IVRO stipulated a 10 meter boundary, if intent was not an element, the accused would have breached the VRO through an act of god. The behaviour of the Protected Person is also a relevant factor. It appears her honour has again made an error in favour of the Protected Persons case.
[76] Baron v Walsh [2014] WASCA 124.
The passage from the decision in Baron v Walsh relied on by the Magistrate[77] is [20] which provides:
The statutory expression 'behaving in an ongoing manner that is intimidating … towards the person' in s 6(1)(d) of the ROA focuses on the conduct of the s 11A respondent and is an objective standard; it requires conduct that is objectively capable of having one or more of the effects in par (a) - (d) of s 338D on an ordinary person in the position of the person seeking protection (the claimant). It does not require proof of an intent to intimidate or proof that the claimant has in fact been intimidated. However, the effect of the behaviour on the claimant is a relevant consideration in determining whether the making of a VRO is appropriate in the circumstances.
This passage is from the judgment of McLure P. Both Mazza JA and Chaney J agreed with the reasons of the President, though Mazza JA elaborated on other matters.
[77] Magistrate's Reasons, par 19.
The appellant did not draw my attention to any High Court authority inconsistent with the principles set out in par [20] of Baron v Walsh. Nor have I been able to find any. Nor have I been able to find any inconsistent Court of Appeal decisions. The principles were thus binding on the Magistrate and are binding on me.
The appellant has not established that the Magistrate erred as set out in ground 26.
As the passage in Baron v Walsh makes clear, different aspects of the statutory regime require the court to consider both objective and subjective factors. Consistent with this decision, the Magistrate considered, as appropriate, both objective and subjective factors.[78]
[78] See for example Magistrate's Reasons, pars 44 and 46.
The appellant has not established that the Magistrate erred in incorrectly applying the law as set out in Baron v Walsh.Ground of appeal 6 has not been made out.
7.6 What is the proper interpretation of the word abuse?
Ground 22 asserts that the Magistrate incorrectly interpreted the word 'abuse':
22.Her honour made an error of fact or law in interpreting the term 'abuse' and consequently that an act of abuse had in fact been committed. From the case law abuse has to be more than just annoyance. As such this has impeded my ability to appeal her decision, which favours the Protected Person. It appears her honour may be based. Allegedly there was a single instance where I called the Protected Person (Kim) a scumbag. It appears her honour has made an error of fact or law as a single instance of calling someone a name is insufficient to grant a VRO. It appears her honour has again made an error in favour of the Protected Persons case.
As I have set out in pt 5, the term 'act of abuse' in ROA s 11A is relevantly defined to mean 'an act of family and domestic violence', which is in turn defined in expansive terms in ROA s 6 (quoted above [26]). The Magistrate quoted these definitions.[79] Her Honour also quoted the definition of 'intimidate'.[80]
[79] Magistrate's Reasons, pars 10 – 17.
[80] Magistrate's Reasons, par 18.
The appellant has not established that the Magistrate erred in interpreting the term 'abuse' as set out in ground 22. I will return to the issue of whether the definition was correctly applied later in these reasons (see [273] below).
7.7 What is the proper interpretation of the term 'emotional abuse'?
Ground 27 challenges the Magistrate's reliance on the decision in Lydon v Lydon:[81]
27.Her honour made a mistake of fact or law in concluding that the case of Lyndon v Lyndon was applicable to this case. Lyndon v Lyndon, should it be applicable, was displaced by Baron v Walsh. And in any case the behaviour complained of did not meet the standard as set out in any of the cases. It appears her honour has again made an error in favour of the Protected Persons case.
[81] Lydon v Lydon [2008] WASCA 8.
The passage from the decision in Lydon v Lydon relied on by the Magistrate[82] is pars [49] and [50] which provide:
Emotional abuse is not defined in the Act. Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.
There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.
This passage is from the judgment of Le Miere AJA. The other member of the court, Pullin JA, agreed with Le Miere AJA.
[82] Magistrate's Reasons, par 21.
The appellant did not draw my attention to any High Court authority inconsistent with the principles set out in pars [49] and [50] of Lydon v Lydon. Nor have I been able to find any. I do not consider that the decision in Lydon v Lydon was displaced by the decision in Baron v Walsh. The two address different issues, but are entirely consistent. I have not been able to find any inconsistent Court of Appeal decisions. The principles set out in pars [49] and [50] of Lydon v Lydon were thus binding on the Magistrate and are binding on me.
The appellant has not established that the Magistrate erred as set out in ground 27 on the basis of the binding nature of the authority. Rather, the Magistrate defined the term 'emotional abuse' in accordance with binding precent. I will return to the issue of whether the Magistrate correctly applied that definition later in these reasons (see [273] below).
Grounds involving procedural fairness
8.1 Was the appellant given adequate notice of the case he had to meet?
The appellant asserts that he did not know the case he had to meet either before the trial or during the trial:
9.I did not know the case I was to required answer prior to the trial. The Magistrate was asked to clarify the case I was required to answer during the course of the trial. The Magistrate did not, or alternatively refused to, clarify the case I was to answer. It appears the Magistrate did not know the case I was to answer. The Protected Person change her case multiple times through the course of the trial. Her honour allowed the Protected Person to change her case multiple times through the course of the trial. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.
10.The Protected Person was permitted to change her case several times throughout the course of the trial. I should know the case I am to answer prior to the trial. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.
The appellant elaborates on ground 9 in the Appellant's Submissions:[83]
Originally Kims case was I abused Scott and she suffered emotional abuse as a result of my abuse of Scott. Then Kim changed her case to I abused Scott and Kim and she suffered emotional abuse. Then Kim changed her case to I abused only Kim and she suffered emotional abuse.
[83] Appellant's Submissions, page 19.
As Rich J observed in Cameron v Cole, it 'is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case'.[84]
[84] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J). See also: Commissioner of Police (NSW) v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395 - 396 (Dixon & Webb JJ); Allesch (184 - 185) (Kirby J).
The following observations by the Court of Appeal in Rowe v Stoltze summarise the law:[85]
… It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
[85] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed). See also: Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel and Bell JJ); Woodley [77].
It is instructive to quote in more detail the passage from the decision of French CJ International Finance Trust Co Ltd v New South Wales Crime Commission referred to in the passage in the preceding paragraph:[86]
Procedural fairness or natural justice lies at the heart of the judicial function…. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.
[86] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]. See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J).
The issue in relation to grounds of appeal 9 and 10 is whether the appellant was given a reasonable or sufficient[87] opportunity, one on proper notice, to know the case he had to meet in order to be given a fair opportunity to prepare his case.[88]
[87]Aon Risk Services Australia Ltd v Australian National University[2009] HCA 27; (2009) 239 CLR 175 [112] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[88] Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 (Tey) [7] – [8] (judgment of the court).
The first place in which the respondent sets out her concerns is in her application for the Interim VRO, which I have already quoted (above [4]).
The respondent filed detailed particulars of claim on 20 March 2015 (Respondent's Particulars).
The issue of the case which the appellant had to meet was addressed by the Magistrate:[89]
[89] Magistrate's Reasons, par 23.
Particulars of the acts of family and domestic violence alleged by Mrs Holland
The acts of family and domestic violence which Mrs Holland alleges Mr Blenkinsop has committed against her were particularized by her in her amended particulars of claim filed 20 March 2015. These particulars are somewhat prolix and contain evidentiary style statements. They may be summarised as follows:
a)In 2008 Mr Blenkinsop went to her home and argued with her and used offensive language. This caused her anxiety.
b)On another occasion in 2008 he went to her house uninvited causing her to leave her house.
c)In November 2008 after a meeting with solicitors Mr Blenkinsop sent her an e-mail which included swearing. Ms Holland requested that he not email her using foul language.
d)In Nov 2009 Mr Blenkinsop shouted and screamed at a shared holder meeting at which Ms Holland was present and has sent her repetitive e-mails containing requests for a copy of minutes of which she had already provided numerous copies to him. This continued until 2012.
e)In June 2012 Mr Blenkinsop joined a facebook conversation to which Ms Holland was a party and made comments which upset her.
f)In late 2012 Mr Blenkinsop called her offensive names in e‑mails.
g)On 10 October 2012 Mr Blenkinsop left a message on Ms Holland's answering machine which made her scared and terrified and caused her to lock all windows and doors.
h)In late September 2013 Ms Holland received a call from Mr Blenkinsop which made her feel afraid and upset during in which she shouted at Mr Blenkinsop.
i)Ms Holland has received many e-mails from Mr Blenkinsop including foul language and attacks on her.
j)Mr Blenkinsop has continued to forward e-mails to her despite requests for him to stop and these e-mail included abusive language and objectionable words and make abusive comments about Mrs Holland in her role as director of the family trust.
The Magistrate's summary is, in my view, a fair summary of the Respondent's Particulars.
It is also instructive to quote the Magistrate's summation of the appellant's case:[90]
[90] Magistrate's Reasons, par 25.
Mr Blenkinsop's Response
Mr Blenkinsop did not file any formal responsive document to the application and was never required by the Court to do so. He did make oral statements to the Court in the course of the proceedings as to his reasons for opposing the application. On the 29 September 2017, having been granted additional time by the Court, the respondent filed 290 pages of closing submissions which were prolix and in parts, repetitive. Further grounds of response were put forward in those submissions. These matters included:
a)Mrs Holland's application is vexatious, frivolous and an abuse of process.
b)Mrs Holland and his brother Mr Scott Blenkinsop acted in concert to provoke him. They provoked him directly and indirectly by being abusive and making various threats to him and his family members and his mother. Mrs Holland and his brother used his reactions to obtain a restraining order against him.
c)Calling Mrs Holland a rubber stamp is not an offensive term. She has over a very long period of time from 2008 to the end of 2015 always sided with his brother Scott Blenkinsop, voted with him and generally adopted his opinions. Ms Holland had not disagreed with or criticised his brother Scott and she disagreed with him only twice in that period of time out of thousands of resolutions and statements. This was the basis for him making the rubber stamp statements and calling her a rogue director and a scumbag on one occasion.
d)He is a whistle blower under the Corporations Act and Ms Holland and his brother were victimising him as he blew the whistle on them. The VRO is a furtherance of that victimisation.
e)Mrs Holland had failed to establish that the e-mails of which she complained were from Mr Blenkinsop.
f)Mr Blenkinsop did not concede any abuse, but in any event he submitted that –
i.Mrs Holland volunteered to be abused;
ii.Mrs Holland brought the abuse upon herself;
iii.Mrs Holland could have stopped the abuse by blocking Mr Blenkinsop's e-mails, changing her e-mail address, resigning her position as a director or appointing an alternative director;
iv.Mrs Holland encouraged the abuse;
v.Mrs Holland cannot deliberately and of her own free will expose herself to emotional abuse and then complain that she has been abused;
g)The ROA discriminates on the basis of gender and thus is in breach of the 'relevant Discrimination Act' and is unconstitutional rendering the VRO granted in this matter invalid.
Immediately after the luncheon adjournment on trial day 2, part way through his cross-examination of the respondent, the appellant spelt out his case for the Magistrate in the following terms:[91]
[91] Mag Ct ts 24.6.19, pp 219-221.
R. BLENKINSOP, MR: My case is Kim says that, you know, I've said the term rubber stamp to her, I don't know, half a dozen times. And basically my case will be that that's not an offensive term, that Kim has over a very long period of time – I think from – I think from 2008 to the end of 2015 I don't think Kim disagreed or criticised Scott. know, probably thousands of resolutions and statements and everything. Well, certainly resolutions.
I think she only disagreed with him twice. So, you know, on the basis that she would just always side with Scott, vote with Scott, you know, just generally and adopt his opinion, that was the basis for me making the rubber stamp statement. The rogue director; in relation to her, I understand her case is also that I called her a rogue director on one occasion. I understand that her case is that: I called her a scumbag on one occasion and all the rest is basically verbal – it's verbal evidence.
HER HONOUR: Yes, she's also complaining that
R. BLENKINSOP, MR: That's right.
HER HONOUR: That emails contained profanities, to which
R. BLENKINSOP, MR: Yes, that's right, swearing.
HER HONOUR: Which she had asked you to desist from.
R. BLENKINSOP, MR: Yes, the swearing and also that I abused my brother, or were offensive towards my brother and as a result of that she got a VRO against me. So that's her – that's her case and basically my case. And also my case is that her claim is vexatious and frivolous, an abuse of process and that basically her and Scott have conspired to provoke me and – to provoke me and my family and then on the basis of that
HER HONOUR: I just want to make a note. Vexatious and frivolous, abuse of process, that she and Scott conspired
R. BLENKINSOP, MR: To provoke me.
HER HONOUR: To provoke you.
R. BLENKINSOP, MR: And my general family, my mother, my sisters, their – their – my in laws and then I've reacted to that provocation and then they have used my reaction, or Kim has used my reaction – possibly both of them, because it's unclear if it's actually a joint application by Scott and Kim.
HER HONOUR: But I'm not dealing with the joint application. I'm dealing with hers against you.
R. BLENKINSOP, MR: Yes, I know, but the thing is that the very first document that was filed was – like, at court , was filed by Kim and Scott Blenkinsop and actually on the headings of the documents and on the actual document for this case it has got Kim and Scott Blenkinsop, so it's actually unclear if it is a joint application or was initially a joint application.
HER HONOUR: This application the applicant is – bear with me – the applicant and the person seeking to be protected is Ms Holland, the respondent is yourself. It's not a joint application. It always has been just her.
R. BLENKINSOP, MR: Yes, I was just confused because on the actual court documents it said Kim and Scott Blenkinsop and Ross Blenkinsop. So that's where the confusion came from there.
HER HONOUR: All right. So – and you reacted to it and she used that to
R. BLENKINSOP, MR: And she has used my reaction, which is basically the scumbag comment, as the basis for her VRO. And the other thing I've argued with Kim is the fact that I'm a whistleblower under the Corporations Act and basically this – and they were victimising me as it was because I blew the whistle on them. They through – before this action actually started they were victimising me as a whistleblower and this VRO is really just a furtherance of that victimisation. So that's basically my case.
The Magistrate thus made it clear that the respondent was only seeking to protect herself in the application. So to the extent that the appellant may have been confused up to that point about whether the application also concerned Scott Blenkinsop (a brother of both the appellant and respondent), the Magistrate dispelled that confusion. The particulars make it clear that the order was only being sought on behalf of the respondent. Otherwise, the appellant's understanding of the scope of the respondent's case reflected what was in the Respondent's Particulars. It is clear that by trial day 2 any uncertainty that the appellant had as to the case he had to meet should have been dissipated.
At the commencement of trial day 3, the appellant again addressed the Magistrate on this issue, making it clear that he knew that the respondent was only claiming emotional abuse against her, and not Scott.[92]
[92] Mag Ct ts 2.11.16, pp 4-5.
In between trial day 2 and trial day 3 there was an interval of some four months. To the extent that the appellant may have felt that he was taken by surprise by the fact that the case was limited to abuse against the respondent (the basis for which surprise is not apparent to me), he had ample time to prepare for the continuation of the trial.
At the commencement of trial day 5 (4 November 2016), the respondent again raised the issue of the case he had to meet. The Magistrate told the appellant that the case he had to meet was that set out in the particulars of claim as developed in the evidence.[93] Later that morning the Magistrate made the point to the appellant that the particulars are allegations and not evidence; whether they are supported by evidence at the trial is a different matter.[94]
[93] Mag Ct ts, 4.11.16, page 296.
[94] Mag Ct ts 4.11.16, pages 326 - 327.
The point came up again on trial day 6 (8 February 2017). The appellant said that he understood that the case he had to meet was that the respondent had suffered emotional abuse as a result of his actions directly against her. The Magistrate reiterated that particulars are not evidence and that the appellant could address the issue of whether the particulars were supported by evidence in his submissions.
In the Appellant's MC Submissions the appellant addressed in some detail the conduct identified by the respondent in the Respondent's Particulars.[95] He also addressed many other issues. The fact that the appellant was able to file very detailed submissions addressing the conduct identified by the respondent indicates that he had both a clear understanding of the case he had to meet and ample opportunity to do so.
[95] See for example, Appellant's MC Submissions, pages 255ff.
It is then evident that from the Magistrate's Reasons that the decision made was based on the summary of the respondent's claim, specifically the allegations set out in paragraphs (f) to (j). The Magistrate's Reasons also addressed the Appellant's MC Submissions in so far as they either directly addressed the conduct identified by the respondent or raised issues going to the legal framework within which the decision was to be made (for example, the constitutional issues).
On my review of the case, I am satisfied that the appellant was given ample opportunity, on proper notice, to know the case he had to meet in order to be given a fair opportunity to prepare his case. He has not satisfied me that grounds of appeal 9 and 10 have been established.
8.2 Was the appellant denied procedural fairness by the respondent being permitted to tender emails not disclosed prior to trial?
The appellant says he was denied access to the respondent's emails:
12.It appears the Magistrate without proper cause considered evidence presented by the Protected Person, that was inadmissible. Evidence of mine that was inadmissible was not permitted by her honour to be admitted into evidence. It appears I was not afforded Procedural Fairness and as a result was not heard. It appears I was not afforded Natural Justice. Further this favoured the Protected Persons case and not mine. It appears her honour may be based. This aground for appeal applies to all these grounds of appeal, mutatis mutandis.
…
77.He honour refers to an email at 8:44 pm. It was typical for all family members to send emails later in the day. Kim would have received emails from many other family members at this time, not just me. As the Court refused my orders for discovery I was unable to establish this fact. As the Court has substantially impacted on my ability to defend myself the Court cannot take these matters into consideration.
…
84.Her honour made an error of fact or law by allowing inadmissible evidence. Kims bundle of document was by Kims own admission, not the same as the Court bundle. This was brought to her honour attention at the time and in my submissions. It appears her honour has referred to and considered this inadmissible evidence in her reasons. The court prevented me from proving this point by not allowing me access to Kims emails. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
…
87.Paragraph 24 was substantiated by my evidence. Basically a shopping list of Scott and Kims behaviour which I established in my documentary evidence.
As mentioned 99% of Kims claims were refuted by me, Kims sister Tracey and Kims mother so all of Kims evidence was refuted one way or another. Kim said she only provided a snap shot of the emails, thats because she omitted anything damaging to her case. The court prevented me from proving this point by not allowing me access to the material I require t prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
The appellant concludes with a summary of all the claims made by the respondent which he says he has refuted. I characterise this as a challenge to the decision as a whole, that is, to the manner in which the Magistrate exercised her discretion: [276]
[276] There are two grounds of appeal numbered 97, so I will refer to the second ground 97 as '97a'.
97.A summary of Kims claims
Kim claimed under oath she was helping her mother, refuted in its entirety.
Kim claimed under oath I sent her copious quantities of emails morning noon and night, refuted in its entirety.
Kim claimed under oath I sent her copious quantities of abusive, intimidating threatening emails morning noon and night, refuted in its entirety.
Kim claimed under oath I sent her copious quantities of abusive, intimidating threatening emails morning noon and night, for years, refuted in its entirety.
Kim claimed under oath I abused, intimidated and threatened her in meetings, refuted in its entirety.
Kim claimed under oath all my emails were nonsense, refuted in its entirety.
Kim claimed under oath all my emails were not about company business, refuted in its entirety.
Kim claimed under oath I asked her for the same document over and over and over, refuted in its entirety.
Kim claimed under oath all company resolutions were by me, refuted in its entirety.
Kim claimed under oath claimed if there was 10000 emails by me 9999 would be abusive, refuted in its entirety.
Kim claimed under oath all company resolutions were by me and were designed to attack her, refuted in its entirety.
Kim claimed under oath she did not discuss the Blenkinsop matters with her children and did not poison her children against us, refuted in its entirety by Kims own witness.
Kim claimed under oath she had provided all documents relevant to the VRO matter, refuted in its entirety.
Kim claimed under oath that I abused Scott, refuted in its entirety.
Kim claimed under oath that I abused Kim, refuted in its entirety.
Kim claimed under oath that I was not welcome to her hose in or around 2008-2009, refuted in its entirety.
97Kim claimed under oath that there was animosity between her and I in 2009 – 2013, refuted in its entirety.
…
99.In short her entire case was refuted by documents and independent witnesses. With respect the finding by her honour is completely unsupported and probably a miscarriage of justice.
The broadest ground of challenge to the exercise of a discretion based on the principles in House is that the ultimate decision is 'unreasonable or plainly unjust', in which case the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Given that I am treating the appellant as a litigant in person, I will treat the grounds of appeal I have identified in [327] and [328] as asserting that the ultimate decision of the Magistrate was so unreasonable or unjust that error can be inferred.
On the totality of the evidence before the Magistrate, the appellant has not satisfied me that the Magistrate's decision was so unreasonable or unjust that error can be inferred. The facts I have identified in pt 11 and pt 12 are a cogent basis for the exercise of the discretion in the manner in which the Magistrate did.
The appellant has not established grounds of appeal set out at [327] and [328].
Grounds involving bias
14.1 Issues arising
A number of grounds of appeal assert that the Magistrate was biased:
14.It appears the Magistrate may be biased. The Protected Person was female, educated, and about the same age as her honour. Her honour was active on gender issues for a number of years including whilst she sat as a magistrate. Repeatedly throughout the course of the trial the Protected Person appealed to the Magistrates on feminist grounds. A google search of her Honours decisions it appears her honour is hard on men, but soft on women.
…
19.It appears the Magistrate made a mistake of fact and/or law, or alternatively abused her power and/or acted ultra vires, as it appears she made her decision based on her dislike of me, nd not on the facts of the case. It appears her Honour didn't like me as I was confident and outspoken and not quite, submissive, controlled and complaint like the Protected Person.
A court room is a place for unemotive egoless professionals to try serious matters of fact and law, and seek the truth, it is not a popularity contest.
An easy way to game the system is to be ultra polite and ultra apologetic. Given the nature of this field of endeavour the courts should make themselves as robust as possible against people gaming the system, as appears was the case here.
…
39.Because of the many grounds outlined in these grounds for appeal it appears I was not heard and was denied Natural Justice. It appears her honour has made numerous errors in favour of the Protected Persons case but not mine. That is not Procedurally Fair and it appears I have been denied Procedural Fairness. It appears her honour has made numerous errors in favour of the Protected Persons case but not mine. It appears her honour may be bias.
…
58.The fact that it appears her honour has made numerous errors that appear to all favour Kim possibly gives the impression that her honour was biased.
...
62.Despite there being glaring inconsistencies in Kim evidence her honour finds Kim a credible witness. In totality it appears her honour may be biased. Her honour fails to mention the many instance of family violence perpetrated towards me by Kim. The phone call never took place.
If her honour was biased it is likely she discounted my evidence and submission is which case I was not heard or treated fairly, and as such was denied Natural Justice. It appears from the reason that her honour did not consider my evidence and/or submissions. I repeat all other grounds of appeal here mutatis mutandis.
If her honour was biased it is likely she discounted my evidence and submission but it appears she did consider Kims evidence and submissions. Therefore I have not been procedurally treated the same as Kim and as such I have not been afforded Procedural Fairness.
…
73.There are so many errors of fact, and law, it is difficult to know where to start. But it appears vast bulk of the errors are consistently in Kims favour and no errors in my favour.
To the extent that these grounds of appeal refer to points other than bias, I have already addressed the substance of those complaints in the grounds of appeal I have considered so far.
In Re JRL; Ex parte CJL Mason J observed that a 'central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even‑handed'.[277]
[277] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350 (Mason J).
A decision of a Magistrate who is, or appears to be, biased, breaches the rules of procedural fairness and thereby may be set aside based on an error of law.[278]
[278] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262-263 (Barwick CJ, Gibbs, Stephen & Mason JJ).
The bias asserted by the appellant has two bases. The first is that the Magistrate was actually biased against him. The second is that, given the manner in which the Magistrate conducted the trial as regards the appellant, the Magistrate appeared to be biased.
14.2 Did the appellant waive his right to object on the ground of bias?
A preliminary issue arises which is whether the appellant acted in such a way as to waive his right to object on the basis of bias. The principle is conveniently stated in the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly: [279]
For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
[279] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 572 (Brennan, Deane & Gaudron JJ). See also 577 (Dawson J), 587 (Toohey J).
Dawson J observed that although 'justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice'.[280]
[280] Vakauta (577).
In the present case, the appellant raised concerns as to the manner in which the Magistrate was conducting the trial on a number of occasions, and foreshadowed appealing on the basis of denial of procedural fairness.[281]
[281] See for example: Mag Ct ts 2.11.16, pages 40, 101 - 102.
This is again an issue on which some allowance should be made to the appellant on the basis that he is a litigant in person. Making that allowance, I do not consider that the appellant waived his right to complain on the ground of actual or apprehended bias.
14.3 Was the Magistrate's decision tainted by actual bias?
As to the first basis, actual bias, in Stephens v Stephens Strickland J observed:[282]
An allegation of actual bias is a very serious matter. Allegations of actual bias are uncommon and actual bias is rarely found by courts. For a judicial officer to be disqualified, it is usually sufficient to establish a reasonable apprehension of bias. Where actual bias exists, reasonable apprehension of bias will also exist. It is therefore generally considered unnecessary for allegations of actual bias to be considered or determined.
[282] Stephens v Stephens [2010] FamCA 184 [22] (Strickland J).
Strickland J went on to quote the following passage from the decision of Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng:[283]
Until recently it was extremely rare for parties before Australian courts to assume the task of establishing 'actual bias' on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish 'imputed', 'apparent', 'apprehended', 'suspected', 'notional' or 'deemed'bias ('imputed bias'). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that 'in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it'. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.
[283] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 541 (Kirby J) (footnotes omitted).
Strickland J then observed that '[a]ctual bias is more difficult to establish, there being a subjective, rather than objective test, requiring an examination of the decision maker's subjective state of mind'.[284]
[284] Stephens v Stephens [24]. See also: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] (Gummow ACJ, Hayne, Crennan & Bell JJ).
The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[285]
Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].
[285] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). See also: Smart v Albuquerque [2011] WASCA 231 [8] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court).
My review of this case has included reviewing the entirety of the transcript of the trial, as well as the 290 page Appellant's MC Submissions. From my review of the case as a whole, the appellant has not satisfied me that the Magistrate was actually biased in the manner way described in Chin. The allegation certainly has not been 'clearly proven'. The appellant has not established the grounds of appeal raising bias in so far as they assert actual bias.
14.4 Did the Magistrate act towards the appellant in a manner such as to give rise to a reasonable apprehension of bias?
In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, Dixon CJ, Williams, Webb and Fullagar JJ observed of bias based on prejudgment:[286]
But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.
[286] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb & Fullagar JJ).
In R v Watson; ex parte Armstrong the High Court expressed the principle to be that 'a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial'.[287]
[287] R v Watson (262).
The relevant test was stated by the court of appeal in Smart v Albuquerque:[288]
The test to be applied in determining whether a judge should be disqualified for apparent bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:
[T]he observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' [12]. (footnotes omitted)
[288]Smart v Albuquerque [9].
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the trial as a whole.[289]
[289] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [70] (McLure P, with whom Buss & Mazza JJA agreed).
In De Alwis v The State of Western Australia [No 2] McLure P observed, in the context of dealing with an assertion of bias, that it 'will often be necessary with a self-represented litigant for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions'.[290]
[290] De Alwis [71].
Before considering the issue of apprehended bias, it is necessary for me to observe that on a number of occasions throughout the trial, the appellant acted in a manner which is best described as being difficult. Specifically, at various points, the Magistrate had to tell the appellant to:
•Stop talking over her[291]
•Stop arguing [292]
•Stop interjecting[293]
•Stop talking over the witness who was attempting to answer his question[294]
•Stop asking repeated questions in order to give the witness time to answer[295]
•Stop strolling up and down and to stand in front of the microphone[296]
•Stop making a speech or submission, as opposed to asking a question[297]
•Stop swearing.[298]
[291] Mag Ct ts 23.6.16, page 51; 4.11.16 page 366.
[292] Mag Ct ts 23.6.16, page 90; 24.6.16 pages 197, 211, 243; 2.11.16 page 122.
[293] Mag Ct ts 23.6.16, page 106.
[294] Mag Ct ts 24.6.16, page 200; 2.11.16 pages 35, 71, 84; 2.11.16 page 131.
[295] Mag Ct ts 24.6.16, page 190.
[296] Mag Ct ts 24.6.16, pages 205, 211.
[297] Mag Ct ts 2.11.16, pages 109, 118, 120.
[298] Mag Ct ts 24.6.19, pages 215 - 216; 4.11.16 page 331. In relation to the first reference, I do not accept the appellant's submission that an alternate interpretation was open to the Magistrate: Appellant's Submissions, page 15.
Her Honour also raised with the appellant the fact that his voice was very loud[299], something I also had to address in the appeal hearing.[300]
[299] Mag Ct ts 24.6.16, p 188.
[300] District Ct ts pp 50-51.
The mere fact that the Magistrate was a female is not a basis for a reasonable apprehension of bias based on gender. The appellant 'must take the Court as it is'.[301]
[301] Lindon v Kerr (1995) 57 FCR 284, 285 (Davies J).
Even if the Magistrate was active on gender issues whilst sitting as a magistrate, as the appellant asserts, that again is not a basis for a reasonable apprehension of bias. It is a routine part of the work of members of the modern judiciary to be involved in initiatives that seek to eliminate all forms of discrimination in the justice system, gender or otherwise.
The appellant did not provide any examples in his submissions to support his bald assertion that a 'google search of her Honours decisions it appears her honour is hard on men, but soft on women'. I observe that decisions of the Magistrates Court are not available publicly online[302], so the basis for this assertion is not readily apparent to me.
[302] On either the WA Courts ePortal (ecourts.justice.wa.gov.au) or (
The fact that the Magistrate did not accept all the evidence of the appellant and made findings against him is not a basis for a reasonable apprehension of bias against the appellant. The very purpose of the adjudication process is to make findings of fact as between two parties who are in dispute.
The fact that the Magistrate made rulings against the appellant does not provide a basis for a reasonable apprehension that the Magistrate did not bring an impartial or unprejudiced mind to bear on those matters and other matters.[303]
[303] MTI [14].
As to the assertion that the sheer number of errors in favour of the respondent suggest bias, as set out in the reasons thus far in this decision, I have only been able to identify one error in the approach of the Magistrate, and that was a technical issue of law relating to evidence (see [239] above). Even if I had identified more errors, indeed many errors, that again of itself is not a basis for a reasonable apprehension of bias.
From my review of the case as a whole, I do not consider that a 'fair-minded lay observer might reasonably apprehend' that the Magistrate had not brought an impartial and unprejudiced mind to the resolution of the issues the Magistrate had to decide.
The appellant has not established grounds of appeal 14, 19, 39, 58, 62 or 73.
Grounds involving inadequacy of reasons
Grounds 13, 20 and 54 assert that the Magistrate gave inadequate reasons for her decision:
13.The Magistrate provided insufficient reasons for her judgement. For instance she has not explained how she found the Protected Person to be a credible witness despite the fact on balance no such finding was open on the evidence. As such this has impeded my ability to appeal her decision, which favours the Protected Person. It appears her honour may be based.
…
20.Her honour has given insufficient reasons so there may be other grounds for appeal. I seek leave to provide further grounds in due course.
…
54.In the reasons for judgement her honour has only listed emails favourable to Kims argument. Her honour has not listed the numerous emails that demonstrated the many and substantial inconsistencies in Kims evidence. Her honour has not listed the many email favourable to my case. It appears I have not been heard and ultimately was denied Natural Justice. It appears Kim has been heard, and I wasn't, so ultimately I was also denied Procedural Fairness. It appears her honour may have been biased in favour of Kim.
In relation to the comment in ground 20 that the appellant foreshadowed seeking leave to provide further grounds, as set out above [17] I have not separately considered any additional grounds of appeal which the appellant sought to add in the Appellant's Submissions.
The appellant elaborated in the Appellant's Submissions that:[304]
Her honour has not explained how she arrived at the conclusion that a VRO was warranted.
[304] Appellant's Submissions, page 20.
The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission[305] are an appropriate and instructive starting point in considering this ground of appeal (references omitted):
The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process… That is because 'the duty is a function of due process, and therefore of justice'… Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment… The requirement also furthers judicial accountability…
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
[305] Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] – [27] (judgment of the court); See also: Velez Pty Ltd v Tudor [2011] WASCA 218 [59] – [67] (Murphy JA, with whom Pullin & Newnes JJA agreed).
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[306]
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised… The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose…
[306] Velez [63] (references omitted).
Unless the ROA makes contrary provision, if a matter in relation to a restraining order is being heard by the Magistrates Court, 'the practices and procedures to be followed… are… the practices and procedures applying in that court under the Magistrates Court (Civil Proceedings) Act 2004'.[307]
[307] ROA s 72.
The procedures in the MCCPA include MCA s 31:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
The definition of 'case' in MCA s 3 means that this provision applies to both civil and criminal proceedings.
In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the MCA s 31(1): [308]
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[308] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).
His Honour went on to make some observations about the realities of work pressure in the Magistrates Court:[309]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[309] Manonai [56]; Velez [69]; Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58 [107] (Schoombee DCJ).
The Magistrate expressly referred to MCA s 31 in her reasons.[310]
[310] Magistrate's Reasons, par 6.
In my view the Magistrate:
(a)adequately identified the facts that she accepted in coming to the decision and gave the reasons for doing so; and
(b)adequately identified the law that she applied (and not applied) in coming to the decision and gave the reasons for doing so.
To the extent that the Magistrate did not canvass all the evidence given in the case, and did not canvass all the factual and legal arguments or issues arising in the case, in particular those of the appellant, her Honour was permitted to do so pursuant to MCA s 31(1)(c) and (d). Moreover, a large portion of the evidence adduced by the appellant went to the issue of provocation, an issue which the Magistrate correctly found to be irrelevant. There was thus no need to consider this evidence.
Further, the Magistrates Reasons were sufficient for the appellant to identify 97 grounds of appeal (the remaining two relating to adequacy of reasons). Moreover, they were ample for me to address each of these grounds of appeal.
The appellant has not established grounds of appeal 13, 20 and 54.
Even if I were of the view that the Magistrate's Reasons were inadequate, it would not automatically follow that the Magistrate's Decision would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[311] For the reasons set out in the balance of this decision, even if I were of the view that the Magistrate's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in relation to the Magistrate's Decision.
[311] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P & Newnes JA agreed); Mount Lawley [29] (judgment of the Court)
What final orders are appropriate?
For the reasons which I have set out above, the appeal should be dismissed.
As to costs, the respondent was not represented and according to court records incurred no court filing fees. There should be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING28 NOVEMBER 2018
- AGLC
- Blenkinsop v Holland [2018] WADC 146
- Case
- [2018] WADC 146
- Decision Date
CaseChat Overview and Summary
The court found that the Magistrate had provided adequate reasons for her decision, in line with the requirements of the Magistrates Court Act 1987 (WA). The court acknowledged that the Magistrate did not canvass all the evidence given in the case or all the factual and legal arguments, but this was permitted under the Act. The court also found that the appeal was appropriately filed out of time, given the short delay and the Christmas holiday period. In terms of the bias allegation, the court found that the appellant had not clearly proven that the Magistrate was actually biased, as required by the relevant legal test.
The District Court dismissed the appeal, affirming the Magistrate's decision to grant the Final VRO. The court found that the Magistrate's reasons were adequate, the appeal was appropriately filed out of time, and the appellant had not established actual bias on the part of the Magistrate. The Final VRO remains in place, and Blenkinsop is restrained from engaging in the specified behaviour towards Holland.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Strickland J went on to quote the following passage from the decision of Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng:[283]Until recently it was extremely rare for parties before Australian courts to assume the task of establishing 'actual bias' on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish 'imputed', 'apparent', 'apprehended', 'suspected', 'notional' or 'deemed'bias ('imputed bias'). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that 'in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it'. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.[283] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 541 (Kirby J) (footnotes omitted). Strickland J then observed that '[a]ctual bias is more difficult to establish, there being a subjective, rather than objective test, requiring an examination of the decision maker's subjective state of mind'.[284] [284] Stephens v Stephens [24]. See also: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] (Gummow ACJ, Hayne, Crennan & Bell JJ). The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[285] Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].[285] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). See also: Smart v Albuquerque [2011] WASCA 231 [8] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court). My review of this case has included reviewing the entirety of the transcript of the trial, as well as the 290 page Appellant's MC Submissions. From my review of the case as a whole, the appellant has not satisfied me that the Magistrate was actually biased in the manner way described in Chin. The allegation certainly has not been 'clearly proven'. The appellant has not established the grounds of appeal raising bias in so far as they assert actual bias.