Ex Parte
[2025] WASC 99
•25 MARCH 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EX PARTE J C [2025] WASC 99
CORAM: PALMER J
HEARD: 18 MARCH 2025
DELIVERED : 25 MARCH 2025
FILE NO/S: CIV 1050 of 2025
EX PARTE
J C
Applicant
Catchwords:
Review order - Interim family violence restraining order - Turns on own facts
Legislation:
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | In Person |
Case(s) referred to in decision(s):
Abbott v Magistrate Malley [2012] WASC 420
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Bindai v Armstrong [2016] WASC 341
Blum v Boothman [2014] WASC 452
Craig v South Australia (1995) 184 CLR 163
JC v TH [2025] WASC 91
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
Rayney v AW [2009] WASCA 203
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380
Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Saldanha v Fujistu Australia Ltd [2011] WASC 360
Seiffert v Prisoners Review Board [2011] WASCA 148
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1
State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Stewart v City of Belmont [2013] WASC 366
Tames v Tames [2005] WASC 218
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
PALMER J:
Introduction
The applicant in these proceedings was also the applicant in JC v TH [2025] WASC 91. These proceedings arise out of the same circumstances as that case. In the present proceedings, the applicant applies for a review order under s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act).
On 24 May 2023, the applicant's former wife obtained an interim Family Violence Restraining Order (FVRO) against him from Magistrate Scadden in the Albany Magistrates Court. The FVRO was granted under the Restraining Orders Act 1997 (WA) (Restraining Orders Act).
In August 2023, a contested final FVRO hearing took place before Magistrate Scadden in the Albany Magistrates Court. On 1 September 2023, Magistrate Scadden made a final FVRO restraining the applicant.
The applicant appealed Magistrate Scadden's decision to the District Court and Black DCJ allowed that appeal on 26 July 2024. Her Honour considered that the applicant had been denied natural justice during the final FVRO hearing. She set aside Magistrate Scadden's decision to grant a final FVRO and remitted the proceedings to the Magistrates Court for re-hearing before a different magistrate. When Her Honour delivered her reasons for decision, she told the applicant (who was representing himself) that the interim FVRO granted by Magistrate Scadden should be in place until there was a re-hearing.
On 23 August 2024, following the remission of the proceedings, a directions hearing occurred in the Magistrates Court at Albany before Magistrate O'Donnell. During that hearing, the applicant (who was again representing himself) asked Magistrate O'Donnell whether the setting aside of the final order on appeal meant that he was still subject to an interim order. The Magistrate expressed some uncertainty about the position but at one point expressed the view that he was not.
On 6 September 2024, at a hearing to determine an application made by the applicant to vary or cancel a restraining order, Magistrate O'Donnell told the applicant that having considered the matter further, she considered that the effect of Black DCJ's decision was that the interim order imposed by Magistrate Scadden remained in place. Magistrate O'Donnell proceeded to make an interim FVRO in the same terms as that made by Magistrate Scadden, other than varying the protected person's address.
The remitted re-hearing to determine whether a final FVRO should be made commenced on 3 December 2024 before Magistrate Young but could not be completed on that day. That hearing resumed on 21 March 2025.
The applicant contends that the setting aside of the final FVRO made by Magistrate Scadden does not mean that the interim FVRO she made remains in place. He has sought to agitate this issue through various applications in the Magistrates Court at Albany and at various hearings related to the remitted proceedings. Magistrates O'Donnell and Young and the Registrar of the Magistrates Court have told him that the interim order remains in place. The most recent hearing at which this issue was canvased was held on 10 January 2025 during which Magistrate O'Donnell refused an application made by the applicant for leave to file an application to vary or cancel a restraining order with a supporting affidavit.
In these proceedings, the applicant seeks a review of the decision made by Magistrate O'Donnell. He contends that the setting aside of the final FVRO made by Magistrate Scadden does not mean that the interim FVRO she made remains in place. He seeks an order that the order Magistrate O'Donnell made on 6 September 2024 be set aside and no new order made until the re-commencement of the re-hearing in the Magistrates Court.
Factual background
Part of the factual background to these proceedings is set out in paragraphs 8 to 13 of my reasons in JC v TH [2025] WASC 91. That background is also relevant to these proceedings. I will not repeat what I have said there. The following additional factual background is relevant to these proceedings.
The re-hearing commenced on 3 December 2024 before Magistrate Young
The re-hearing of the hearing to determine whether a final FVRO should be made commenced on 3 December 2024 before Magistrate Young.
During that hearing, the applicant asked the Magistrate whether the issue of the interim order was going to be addressed. The Magistrate responded that it would not because the issue had already been ruled on, he agreed with that ruling and even if he did not, he could not overrule the decision.[1]
[1] Affidavit of JC Sworn 6 March 2025 (JC Affidavit), Attachment L, page 220.
The re-hearing of the application for a final FVRO was not concluded on 3 December 2024.
The applicant files further applications in the Magistrates Court
On 20 December 2024, the applicant filed a further application to vary or cancel a FVRO. In the part of that application which required the applicant to state the 'Grounds for Leave to Continue this Application', the applicant stated that the Albany Magistrates Court had continued to not adhere to the Restraining Orders Act by reinstating an interim order that was made after the final order was set aside by the District Court. It was stated that the Supreme Court has stated that after a final order has been set aside, the interim order must also be set aside.[2]
[2] JC Affidavit, par 22 and Attachment M.
On 24 December 2024, the Registrar of the Magistrates Court at Albany wrote to the applicant giving notice pursuant to s17(2) of the Magistrates Court Act that they were refusing to accept the document filed by the applicant. The reason given was that that application contravened the Restraining Orders Act and orders of a superior court. It was stated that pursuant to s 16(4) of the Restraining Orders Act, the interim order must remain in place. It was also stated that Black DCJ had remitted the re-hearing of the application to the Magistrates Court to determine whether the interim order ought to be made final.[3]
[3] JC Affidavit, par 23 and Attachment N.
On 6 January 2025, the applicant filed an application for leave to lodge a document, namely an application to vary or cancel a restraining order with a supporting affidavit.[4] That application was listed for hearing on 10 January 2025.[5]
The hearing on 10 January 2025
[4] JC Affidavit, par 24 and Attachment O.
[5] JC Affidavit, par 25 and Attachment P.
The hearing on 10 January 2025 was held before Magistrate O'Donnell. At that hearing the applicant again referred to the decision in Tames v Tames.[6] He also referred to an email he had received from the Associate to Registrar Griffin and submitted that this said that he had an arguable question of law.[7] Magistrate O'Donnell explained that Black DCJ had expressed the view that the interim FVRO had come back into place and that the Magistrate had made the order she had on 6 September 2024 to substantiate the position. Her Honour refused the applicant's application.[8]
[6] Tames v Tames [2005] WASC 218.
[7] See JC v TH [2025] WASC 91 [37].
[8] JC Affidavit, par 24 and Attachment Q.
The procedure to determine whether a review order should be made
The applicant's application is expressed as being an application for judicial review. At the hearing before me, I confirmed that the applicant's application was for a review order pursuant to s 36 of the Magistrates Court Act. Section 36 of the Magistrates Court Act provides for an alternative statutory form of relief to the prerogative writs.[9]
[9] Section 35 of the Magistrates Court Act provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to an officer of the Magistrates Court.
The procedure applicable to an application for a review order is contained in O 56A of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court).
Order 56A(2)(a) requires that an application for a review order be made ex parte. The application must be for an order that requires the relevant court officer, and any person who will be affected by the Court officer's act, order or direction that is in question, to satisfy the Supreme Court at a later hearing that the act, order or direction should or should not be done or made or set aside.
Order 56A provides for a two stage process. First, O 56A(3) of the Rules of the Supreme Court requires that an application for a review order must initially be listed before a judge in chambers. A judge may then, amongst other things, refuse the application, or make a review order. If a judge makes a review order, O 56A provides for the service of the review order and a hearing of that order at which persons who wish to be heard to oppose the order may appear.
At the first stage in the process, this Court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. That is, if the material demonstrates that the case has reasonable prospects of success.[10]
[10] Rayney v AW [2009] WASCA 203 [25] - [34]; Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] - [54] (Darge).
When a review order will be made under s 36 of the Magistrates Court Act
Section 36(1) of the Magistrates Court Act relevantly provides that:
(1) If a person is or would be aggrieved by one or more of the following -
(a) the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
An application under s 36 of the Magistrates Court Act is concerned only with the legality of decisions, and not the merits.[11]
[11] Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333 [31(c)].
A review order can only be made if the applicant establishes a case that an error of the type identified in s 36(1)(a), (b) or (c) of the Magistrates Court Act was made that has a reasonable prospect of success.[12]
[12] Darge [48].
To fall within s 36(1), the error must be either a jurisdictional error, or an error of law on the face of the record.[13]
[13] Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380 [7].
The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[14]
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
[14] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. Cited in Darge [50].
It is more difficult to demonstrate jurisdictional error on the part of an inferior court than in the case of an administrative decision-maker. Generally speaking, unlike administrative decision-makers, inferior courts have jurisdiction to decide questions of law, including the proper construction of a statute, and to do so incorrectly.[15]
[15] Craig v South Australia (1995) 184 CLR 163, 179 - 180; Kirk v Industrial Court (NSW)[2010] HCA 1; (2010) 239 CLR 531 [67] - [68]; Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 [9] - [12], [118]; Darge [52].
While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:[16]
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ( [...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.
[16] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181]; Re The State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16] (Re State Administrative Tribunal), citing Craig v South Australia (177 - 178); Darge [53].
Another category of jurisdictional error is where procedural fairness has been denied.[17]
[17] Kirk v Industrial Court (NSW) [60]; Darge [54].
Errors of law not evident on the face of the record can only be addressed through normal appellate process.[18] A demonstration that the magistrate made an error of law in his or her reasons is not, in itself and without more, a ground that might have justified certiorari. Certiorari is available, relevantly, for jurisdictional error, or for error of law on the face of the record.[19] In the case of an inferior court such as the Magistrates Court, subject to contrary statutory provision, the reasons for decision are not part of the record unless there is an error of law on the face of the record.[20]
[18] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357 [45] (Re Magistrate D Temby); Abbott v Magistrate Malley [2012] WASC 420 [13] (EM Heenan J); Stewart v City of Belmont [2013] WASC 366 [31] (Martin CJ).
[19] Craig v The State South Australia (175 - 176); Kirk v Industrial Court (NSW) [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Wingfoot Australia Partners Pty Ltd vKocak [2013] HCA 43; (2013) 252 CLR 480 [26] (the Court); Re Magistrate D Temby [51].
[20] Craig v The State of South Australia (182 - 183); Re State Administrative Tribunal [22] (the Court); Seiffert v Prisoners Review Board [2011] WASCA 148 [181] - [183] (Martin CJ) ; Re Magistrate D Temby [51].
Even where the grounds for a review order have been established, the grant of a review order remains discretionary.[21] For example, in Blum v Boothman, Mitchell J refused a review order on discretionary grounds because the proceedings were commenced after the order had expired and the grant of certiorari would lack utility.
[21] Rayney v AW [31]; Saldanha v Fujistu Australia Ltd [2011] WASC 360 [116]; Blum v Boothman [2014] WASC 452 [18] - [19].
The applicant's application for a review order
The applicant's application states that the decision he is seeking to have reviewed was made on 10 January 2025 at the Albany Justice Complex. In another part of the application, however, the decision is described as '[a]utomatically reinstated an interim order after the District Court set aside the Final Order and did not make a new Interim Order as required by the Act'.
The applicant also described the decision in the following terms:
Despite no Order being made by the District Court to make a new Interim Order (as required by the Act), Magistrate Erin O'Donnell has based her decision to reinstate/make a new Order, based solely on the reasons for judgement and the transcript of DCJ Linda Black effectively stating…
"HER HONOUR: It's an appeal against the making of the final order. So that is successful, but the underlying interim order is not disturbed unless there is a specific order of that appeal court, and there wasn't." (from transcript dated 6th September 2024)
These comments were made AFTER already acknowledging on the 23rd of August 2024 that no Interim Order was in Place "HER HONOUR: Yes. The more I think about it - well, as I say, the decision I don't think helps because I've just referred to the - I have the decision in front of me, and it - I've read out the orders, and her Honour made no orders about a restraining order being back in place, and the more I think about it, the more I think it's more likely that there is no order in place, but that's just my feeling, [JC], I tend to think that the finality of appeal proceedings where the person bound is successful, would be that there then be no order in existence." (from transcript dated 23rd August 2024).
The application seeks a writ of mandamus and an order that 'Interim Order 148/2023 reinstated/made 6th September 2024 be set aside and no new order be made prior to the Final Order Hearing in March 2025'.
The grounds for the application state that there are no provisions in the Restraining Orders Act for the automatic reinstatement of an interim order by the Magistrates Court after it has been set aside by the District Court on appeal. The application asserts that s 16(4)(a) of the Act has the effect that no interim order has been in place since 1 September 2023, when Magistrate Scaddan made a final order (the decision the subject of the appeal to Black DCJ).
The application also refers to s 63 of the Restraining Orders Act (which addresses when an interim order may be made) and asserts that Magistrate O'Donnell made no attempt to satisfy herself if an interim order should be made.
Although the applicant's application states that the decision that he seeks to review was made on 10 January 2025, the issues raised suggest that the relevant decision was the decision made by Magistrate O'Donnell on 6 September 2024. That was when Magistrate O'Donnell made an interim FVRO that the applicant maintains should not have been made. The decision that Magistrate O'Donnell made on 10 January 2025 was to refuse the applicant's application for leave to file a document.
Given the applicant is representing himself and is not legally qualified, I have proceeded on the assumption that the decision that the applicant seeks to have reviewed is the decision that Magistrate O'Donnell made on 6 September 2024.
Further, the applicant's application states that he seeks a writ of mandamus. Given the relief that the applicant seeks, the appropriate remedy is a writ of certiorari and possibly a writ of prohibition, rather than a writ of mandamus. As the applicant is representing himself and is not legally qualified, I have proceeded on the basis that the applicant seeks a writ of certiorari and a writ of prohibition.
Why the applicant contends a review order should be made
The applicant's case relies upon s 16(4)(a) of the Restraining Orders Act which provides that:
Subject to section 24(3)(b), an interim order remains in force until one of the following occurs -
(a)a final order in respect of the matter comes into force; or
(b)a final order hearing in respect of the matter is concluded without a final order being made; or…
The applicant submits that the interim FVRO that Magistrate Scadden had earlier made on 24 May 2023 ceased to have effect when the final FVRO was made on 1 September 2023.[22]
[22] JC Affidavit, pars 27 - 30.
The applicant also relies on the decision of Hasluck J in Tames v Tames[23] which he contends supports his argument. The applicant submits that this case established that if there was a successful appeal of a final FVRO, the interim FVRO must be set aside.[24] The applicant places particular reliance on paragraph [61] of Hasluck J's reasons (the final paragraph) where his Honour concluded:
Finally, I am of the view that the interim order of 16 November 2004 must be set aside also. It will be open to the respondent to renew her application for relief when the original application is remitted back to the learned Magistrate for rehearing in the light of these reasons. There will be no order as to costs.
[23] Tames v Tames [2005] WASC 218.
[24] JC Affidavit, par 30.
The applicant submits that a superior court has already established that the default position when a final FVRO is set aside is that the interim order must also be set aside. The applicant submits that the absence of an order setting aside the interim FVRO 'needs to be regarded as a judicial slip'.[25]
[25] JC Affidavit, par 32.
The applicant refers to remarks made by Magistrate O'Donnell on 10 January 2025 and submits that the magistrate said that the order her Honour made 'was a new order but a reinstatement of the interim' FVRO. The applicant submits that no request was made by either party for a new interim FVRO and the magistrate did not satisfy herself that the circumstances warranted the making of the order. The applicant contends that the circumstances did not support the making of an interim FVRO.[26]
[26] JC Affidavit, pars 33 - 36.
The applicant also submits that on 10 January 2025, Magistrate O'Donnell said that there was an agreement as to the making of the interim FVRO regarding some minor variation. However, the applicant submits that there was no such agreement.[27]
[27] JC Affidavit, par 37.
The applicant submits that the interim FVRO appears to have been made because it was prudent and desirable to do so. He contends that at no stage since his successful appeal has it been established that the statutory threshold for the imposition of the interim FVRO had been met.[28]
[28] JC Affidavit, pars 38 - 39.
Whether a review order should be made
The question to be considered is whether the applicant has demonstrated that his case has reasonable prospects of success.
The applicant's primary submission is that, given the terms of s 16(4)(a) of the Restraining Orders Act, the interim order made by Magistrate Scadden on 23 May 2023 ceased to have any effect on 1 September 2023, when she made a final order.
When making orders on 6 September 2024, Magistrate O'Donnell indicated that she considered that the interim FVRO made by Magistrate Scadden remained in effect.[29]
[29] JC Affidavit, Attachment F, pages 46 - 47.
On 6 September 2024, Mr Cridland submitted to Magistrate O'Donnell that the interim order remained in place because of s 16(4)(b) of the Restraining Orders Act. That provision provides that an interim order remains in force until a final order hearing in respect of the matter is concluded without a final order being made. Mr Cridland submitted that as the final order hearing had not concluded, the interim order remained in place.[30]
[30] JC Affidavit, Attachment F, pages 41 - 42.
Magistrate O'Donnell attached significance to s 64 of the Restraining Orders Act which deals with appeals from the making of a final FVRO. Her Honour reasoned that given that the appeal was against the final order, the appeal 'did not touch' the interim order. Her Honour considered that s 16(4)(b) reinforced this conclusion.[31]
[31] JC Affidavit, Attachment F, pages 42, 45.
However, neither Mr Cridland's argument, nor Magistrate O'Donnell's reasons, appear to have engaged with the applicant's submission. The applicant's case is that the effect of s 16(4)(a) of the Restraining Orders Act means that the interim order made by Magistrate Scadden on 24 May 2023 ceased to have effect when her Honour made a final order on 1 September 2023.
When an FVRO 'comes into force' is addressed in s 16(1) of the Restraining Orders Act. That section provides that:
Subject to subsection (2), an FVRO… comes into force when it is served on the person who is bound by the order, or if a later time is specified in the order, at that time.
Thus, when s 16(1) and s 16(4)(a) are read together, the statutory intent would seem to be that an interim order ceases to have effect when a final order is served on the person who is bound by the order, or if a later time is specified in the order.
Although it has not been expressly addressed in the evidence before me, I infer for present purposes that, as a matter of historical fact, the applicant was served with the final order made by Magistrate Scadden on 1 September 2023 and that any time stated in that final order at which it was to take effect has passed.
Mr Cridland's construction does not appear to address the effect of s 16(4)(a) of the Restraining Orders Act. Section 16 provides that an interim order will cease to have effect if any of the events identified in s 16(1) to (4) occurs. If the applicant's construction is correct, and the matter referred to in s 16(4)(a) has occurred, it does not matter if the event in s 16(4)(b) has not also occurred.
The analysis adopted by Magistrate O'Donnell presumes that the interim order continued after the final order was pronounced, so that even if the final order was set aside, this did not affect the interim order. If the applicant's construction is correct however, the effect of s 16(4)(a) is that the interim order ceased to have force after Magistrate Scadden made a final order. There would therefore be no interim order still in effect when the final order was set aside.
As the applicant submits neither s 16, nor any other provision in the Restraining Orders Act, makes express provision for the reinstatement of an interim order following a successful appeal against the grant of a final order.
If the applicant's construction is correct, then Magistrate O'Donnell may have made a jurisdictional error. This is because (as is discussed further below) on 6 September 2024 her Honour proceeded on the basis that the interim order made by Magistrate Scadden remained in force. Her Honour did not go on to satisfy herself of the matters necessary before making a new interim FVRO.
However, the correctness of the applicant's construction might be debated. Although not raised by either Magistrate Scadden or Mr Cridland, a further construction is that once the final FVRO made by Magistrate Scadden was 'set aside' on appeal, there ceased to be an order with any 'force' to engage the operation of s 16(4)(a). It may be that if a review order were to be made, other arguments might be advanced.
Further, the applicant's submission proceeds on the basis that Magistrate Scadden made a final FVRO. This assumes that Magistrate Scadden's decision was a valid final FVRO until it was set aside. Given the findings made by Black DCJ on appeal, there is reason to doubt this. Three relevant observations may be made in this regard.
First, as I have mentioned, Black DCJ found that Magistrate Scadden denied the applicant procedural fairness. In her Honour's reasons for allowing the appeal Black DCJ said:
69The appellant was not afforded procedural fairness in the hearing before the magistrate.
70The appellant was denied a fair hearing and a proper opportunity to answer the case he was required to meet. This unfairness arose in many ways including the confusing and inconsistent way in which the magistrate addressed the issue of relevance.
…
73The refusal by the magistrate to allow the appellant to cross-examine the respondent on all of her evidence, and to disallow the tender of potentially relevant materials without identification of these documents, and the uncertainty of her Honour's reasons, make any attempt to determine whether or not these matters would have impacted upon the outcome a futile one.
74The appellant was denied the opportunity to properly respond to the case brought against him, and accordingly, was denied the opportunity to fully and fairly defend himself against the allegations made that at least in part formed the basis for the decision against him.
Secondly, as I have outlined, a denial of procedural fairness is a form of jurisdictional error. Although Black DCJ did not make a finding that Magistrate Scadden made a jurisdictional error (as it was not necessary for her Honour to make such a finding), the finding that Magistrate Scadden denied the applicant procedural fairness readily supports a conclusion that Magistrate Scadden made a jurisdictional error.
Thirdly, an order made by an inferior court such as the Magistrates Court without jurisdiction has no legal force.
In Stanley v Director of Public Prosecutions (NSW) (Stanley)[32] Gaegler J (as his Honour then was) referred to his earlier observation in New South Wales v Kable[33] that a decision of a superior court is valid unless and until it is set aside. His Honour distinguished the position of superior courts from the position of inferior courts. In the case of inferior courts, Gaegler J held that an order made without jurisdiction has no legal force. In Stanley Gaegler J said[34] that an order of the Local Court of New South Wales made without jurisdiction was 'not an order at all'.
[32] Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 278 CLR 1 [15] - [16] (Stanley).
[33] State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [56] (Kable).
[34] Stanley [15].
In Bindai v Armstrong,[35] relying on Kable, Martino J concluded that a violence restraining order made under the Restraining Orders Act without jurisdiction had no legal force.
[35] Bindai v Armstrong [2016] WASC 341.
If Magistrate Scadden made a jurisdictional error, then the final order made by her Honour on 1 September 2023 would have had no legal force, with the result that there was no final FVRO capable of engaging the provisions of s 16(4)(a) of the Restraining Orders Act. Thus, even if the applicant's arguments about how s 16(4)(a) operates are correct, it may make no difference in this particular case.
At the hearing before me, I raised with the applicant the possibility that Magistrate Scadden's order might have had no legal effect if her Honour made a jurisdictional error. In response, the applicant referred me to the decision of Hasluck J in Tames v Tames which he submitted was relevant and supported his argument. I do not consider that that decision assists the applicant, however.
I do not accept that Hasluck J considered that the interim order 'must' be set aside because the pronouncement of a final order had the automatic effect of terminating the interim order. Hasluck J's reasons do not say that he was of that opinion, or address the effect of s 16(4)(a) of the Restraining Orders Act. Indeed, that Hasluck J considered it necessary to make an order setting aside the interim order may suggest that his Honour thought that the interim order remained in force. Otherwise, an order setting it aside would have been unnecessary.
Nor do I consider that Hasluck J's reasons in Tames v Tames establish any general principle that if there was a successful appeal against a final order, an interim order must be set aside as the applicant asserts. Hasluck J did not express any such view in his reasons for decision.
The applicant makes some further arguments but it seems to me that the merit of those arguments is bound up with the merit of his argument that the interim FVRO made by Magistrate Scadden was discharged by the operation of s 16(4)(a) of the Restraining Orders Act.
The applicant submits that no request was made for a reinstated order; Magistrate O'Donnell did not ascertain that circumstances existed that warranted the making of a new order; and the circumstances did not justify making a new order.[36] Further, the applicant contends that Magistrate O'Donnell had said that he had agreed to a variation of the interim order when he had not[37] and that Magistrate O'Donnell made the interim FVRO simply because it was prudent and desirable, without regard to the necessary statutory criteria.[38]
[36] JC Affidavit, pars 34 - 36.
[37] JC Affidavit, par 37.
[38] JC Affidavit, pars 38 - 39.
On 6 September 2024, Magistrate O'Donnell had before her the applicant's application to vary or cancel a restraining order. The application states that the FVRO was made on 1 September 2023 (the date on which Magistrate Scadden made the final FVRO)[39] but the application also records that the Acting Clerk of the Magistrates Court at Albany had told the applicant that he was restrained by Magistrate Scadden's interim FVRO.
[39] JC Affidavit, Attachment E.
Section 49(1)(b)(i) of the Restraining Orders Act confers jurisdiction on a Magistrate hearing an application to vary or cancel a FVRO, to vary that order by cancelling the original order and making a replacement order that contains the variations.
From my review of the transcript on 6 September 2024, it is evident that Magistrate O'Donnell considered that the interim FVRO made by Magistrate Scadden remained in place. By making the order she did, Magistrate O'Donnell varied that order by updating the applicant's residential address and made a replacement order that contained variations.
It seems to me that the merit of the applicant's further arguments is bound up with the merit of the applicant's primary argument about the operation of s 16(4)(a) because if Magistrate Scadden's interim order remained in force, s 49(1)(b)(i) of the Restraining Orders Act meant that her Honour had jurisdiction to make the order that she did.
On the other hand, if Magistrate Scadden's order did not remain in force, then it might be doubted that Magistrate O'Donnell had the jurisdiction to make the order made. As the applicant submits, no application was made to the Magistrate to make an interim FVRO; her Honour did not conduct a hearing to consider whether such an order should be made and the applicant did not agree to any such order.
It seems to me therefore that the further arguments that the applicant makes do not independently establish a different case to that established by his primary argument concerning the operation of s 16(4)(a) of the Restraining Orders Act.
Ultimately, given the findings made by Black DCJ that the applicant was denied procedural fairness, it seems to me that there is good reason to doubt that the final order made by Magistrate Scadden had any legal force. Given this, the construction argument raised by the applicant would seem academic and I am not persuaded that the applicant's case has a reasonable prospect of success. I will therefore not make a review order.
Conclusion
I will dismiss the applicant's application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CN
Associate to the Judge
25 MARCH 2025
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