GXB v Tyson [No 3] - [2025] WASCA 116

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GXB -v- TYSON [No 3] [2025] WASCA 116
CORAM:   VAUGHAN JA
HALL JA

HEARD:   25 JULY 2025
DELIVERED          :   25 JULY 2025
PUBLISHED           :   30 JULY 2025
FILE NO/S:   CACV 52 of 2025
BETWEEN:   GXB
Appellant
AND
THE HONOURABLE JUSTICE CIARA AISLING TYSON
First Respondent
BFS
Second Respondent
CJA
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MITCHELL JA
Citation: GXB v HONOURABLE JUSTICE CIARA AISLING TYSON [2025] WASCA 91
File Number            :   CACV 49 of 2025

Catchwords:

Appeal - Practice and procedure - Application for review of decision of single judge of appeal to refuse stay of proceedings in Family Court of Western Australia - Turns on own facts

Legislation:

Supreme Court Act 1935 (WA), s 61(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 2 div 3

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	No Appearance
First Respondent	:	No Appearance
Second Respondent	:	In Person
Third Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
First Respondent	:	State Solicitor's Office
Second Respondent	:	In Person
Third Respondent	:	In Person

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
GXB v Honourable Justice Ciara Aisling Tyson [2025] WASC 206
GXB v Honourable Justice Ciara Aisling Tyson [2025] WASCA 91
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
McCagh v McCagh [2025] WASCA 105
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Traynor v Cunningham [No 2] [2017] WASCA 159

REASONS OF THE COURT:

(These reasons were delivered orally. They have been edited to correct matters of grammar and infelicity of expression. Citations and other references have also been footnoted rather than appearing in the body of the reasons.)

The court sits pursuant to a Registrar's Notice to Attend dated 24 June 2025, as amended today, to consider the appellant's application filed 19 June 2025 for review of a decision of a single judge of appeal.
The appellant invokes s 61(3) of the Supreme Court Act 1935 (WA) and pt 2 div 3 of the Supreme Court (Court of Appeal) Rules 2005 (WA). It is well established that such a review does not involve a hearing de novo. The review application is a rehearing and error on the part of the single judge of appeal must be shown. In the case of a discretionary decision ‑ as was the decision the subject of the appellant's review application ‑ error of the kind explained in House v The King[1] must be shown. Also, special restraint must be exercised when the impugned interlocutory order is one concerning practice and procedure. See Traynor v Cunningham [No 2].[2]
[1] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.
[2] Traynor v Cunningham [No 2] [2017] WASCA 159 [41].
The appellant seeks review of a decision of Mitchell JA made 16 June 2025 refusing a stay of proceedings in the Family Court of Western Australia pending determination of an appeal to the Court of Appeal.
The background to Mitchell JA's decision is provided in ex tempore reasons that were provided by his Honour which were published on the same day: GXB v Honourable Justice Ciara Aisling Tyson[3]. Relevantly:
[3] GXB v Honourable Justice Ciara Aisling Tyson [2025] WASCA 91 [2] - [11].
1.The appellant and her estranged husband are involved in matrimonial proceedings in the Family Court. Those proceedings are being managed by Tyson J. On 17 April 2025, in circumstances more fully described by Mitchell JA, Tyson J ordered that the husband have leave to proceed on an undefended basis. The proceedings were adjourned for judgment to be delivered on a date to be advised.
2.On 7 May 2025 the appellant applied to the General Division of this court for judicial review of certain orders made by Tyson J including the orders of 17 April 2025. The application was heard on an ex parte basis by Solomon J on 16 May 2025. Solomon J dismissed the application for judicial review: GXB v Honourable Justice Ciara Aisling Tyson.[4]
3.Solomon J held that, even if the Supreme Court had jurisdiction to undertake judicial review of decisions of the Family Court, it was not an appropriate case to exercise the discretion to grant judicial review remedies. In part this was due to the appellant's right to appeal from those orders. Solomon J also considered that it would be an inappropriate interference with the processes of the Family Court for the Supreme Court to undertake judicial review of a decision of the Family Court (assuming, favourably to the appellant, that the Supreme Court had jurisdiction to undertake judicial review of decisions of the Family Court).
4.On 12 June 2025 the appellant filed an appeal notice in relation to Solomon J's dismissal of the judicial review proceedings. In the interim there were other developments, namely:
(a)First, on 20 May 2025 the appellant lodged a notice of appeal to the Federal Circuit and Family Court of Australia, Division 1 from Tyson J's orders of 17 April 2025.
(b)Second, on 28 May 2025 Tyson J listed for determination an application by the appellant that her Honour recuse herself. The application was listed for determination at 12 noon on 16 June 2025.
5.The appellant filed an application in an appeal in this court on 13 June 2025. That application, supported by the appellant's affidavit sworn the same day, sought a stay of the proceedings in the Family Court. This application was heard and determined by Mitchell JA on 16 June 2025 (before the recusal application to be determined in the Family Court). This decision is the subject of the current review application.
[4] GXB v Honourable Justice Ciara Aisling Tyson [2025] WASC 206.
In his ex tempore reasons Mitchell JA addressed the generally applicable principles on a stay application, referring to Eastland Technology Australia Pty Ltd v Whisson[5] and Tradesman Technologies Pty Ltd v Ameduri.[6] Mitchell JA then made three assumptions in the appellant's favour without determining the correctness of those assumptions. Mitchell JA assumed that: (1) the Supreme Court has jurisdiction to grant relief by way of judicial review remedies in respect of orders made by the Family Court in the exercise of its federal jurisdiction conferred by the Family Law Act; (2) the Court of Appeal has power, to protect the effective exercise of its appellate jurisdiction in an appeal against a refusal by the General Division to judicially review orders of the Family Court, to stay proceedings pending in the Family Court; and (3) the refusal to grant a stay might render the appeal against Solomon J's orders nugatory in the relevant sense.
[5] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
[6] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] - [23].
Mitchell JA concluded that the order dismissing the appellant's judicial review application was plainly correct and was not attended by sufficient doubt to justify the grant of a stay. This was, in Mitchell JA's opinion, a circumstance where the court could confidently conclude that the appeal had no reasonable prospect of succeeding. His Honour stated:
It is established that judicial review remedies may be denied in the exercise of the court's discretion where an alternative remedy is available …
An appeal from the orders made by the Family Court lies to the Federal Appeal Court [ie the Federal Circuit and Family Court of Australia, Division 1] under s 26(1)(da)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). An appeal will also lie to the Federal Appeal Court from any order which may be made by the Family Court on the decision which it reserved on 17 April 2025.
The existence of these rights of appeal provides a compelling reason for the exercise of the Supreme Court's discretion to refuse to grant relief by way of judicial review remedies on the ground that an alternative remedy is available. That aspect of Solomon J's reasons is plainly correct and provided a sufficient basis for dismissing the appellant's judicial review application …
In the course of her oral submissions before me, the appellant contended that she had exhausted her rights of appeal to the Federal Appeal Court. I do not accept that submission. While the appellant's attempts to institute an appeal in the Federal Appeal Court have been rejected on procedural grounds, it does not appear that her rights of appeal have been effectively exercised so as to be spent. [16] - [19] (citations omitted)
Mitchell JA held that the appropriate remedy for the appellant, if dissatisfied with orders made by the Family Court in the exercise of its federal jurisdiction, was to appeal from those orders to the Federal Circuit and Family Court of Australia, Division 1 [20].
Mitchell JA would also have dismissed the stay application for two other reasons. First, due to the balance of convenience [21]. Second, due to the non-joinder of the appellant's husband [22]. These two matters were additional reasons for his Honour's dismissal of the stay application.
Whether or not there was a failure to join the appellant's husband ‑ and whether, if there was no joinder, that was the result of the eCourts portal as used by the appellant to file documents in the appeal, was a matter of some concern to the appellant on the review application. It is not necessary to resolve those issues now. In considering the review application it suffices to focus on Mitchell JA's conclusion that the appeal had no reasonable prospect of succeeding. The appellant must demonstrate error in that conclusion if the review application is to succeed.
The appellant relies on five grounds of review. They are prolix and extend over some five pages. In summary the grounds of review raise the following matters:
1.The appellant contends that she was denied natural justice and procedural fairness due to the eCourts generated notice of appeal and application in an appeal being uploaded on the court file in a way that: (a) did not include her legal name; (b) omitted two intended respondents (one being her husband); and (c) omitted the seven statutory enactments and one High Court authority (namely Kirk v Industrial Court of New South Wales[7]) that the appellant relied on to establish jurisdiction to appeal.
[7] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [579] - [580].
2.The appellant contends that Mitchell JA denied her natural justice and procedural fairness by failing to take her medical disability and her medical conditions and chronology of serious illness into consideration.
3.The appellant contends that Mitchell JA erred in law by pre‑judging the merits of the appeal (pointing out, among other things, that she had not yet had the opportunity to file her grounds of appeal or summary of argument).
4.The appellant contends that Mitchell JA erred in law by:
(a)excluding the Supreme Court from exercising its inherent and supervisory jurisdictions; and
(b)omitting to consider the material issues of jurisdictional error, errors on the fact of the record and allegations of unlawful orders and decisions made in bad faith.
5.The appellant contends that Mitchell JA's exercise of discretion miscarried by:
(a)dismissing the application despite admitting that the appellant had satisfied all three grounds for granting a stay;
(b)considering the detriment that would be caused to the appellant's husband in the Family Court proceedings;
(c)relying on the appellant's option of an appeal through the Federal Circuit and Family Court of Australia, Division 1 (something neither legally justified nor appropriate because it is contrary to the public interest in the proper administration of justice).
Most of these matters are wholly misconceived. Ground 5(a), for example, ignores that Mitchell JA found that the appeal had no reasonable prospect of succeeding ‑ this being the primary reason that his Honour refused the stay application. Each of grounds 1, 2, 4 and 5(b) go nowhere unless the appellant succeeds in establishing error in that key conclusion. Grounds 1, 2, 4 and 5(b) may be put to one side unless and until the appellant establishes error in the finding that the appeal lacks reasonable prospects of success.
It is only grounds 3 and 5(c) that seek to establish error in Mitchell JA's key conclusion that the appeal is without reasonable prospects of success. There was, in relation to ground 3, no legal error on the part of his Honour in evaluating the merits of the appeal. On a stay application it is well established that, while the overall consideration is the interests of justice, one of the matters to be considered is whether the appeal has reasonable prospects of success. What is sufficient to amount to reasonable prospects of success for the purpose of a stay application is ordinarily not a high hurdle. It will usually be enough to show that the grounds of appeal have a rational and logical prospect of succeeding. Grounds of appeal that have a rational and logical prospect of succeeding are grounds that are not irrational, fanciful or absurd. Accordingly, this consideration is concerned with unmeritorious appeals. It means that the court may refuse a stay in circumstances where it is plain that the appeal is without merit. See McCagh v McCagh.[8]
[8] McCagh v McCagh [2025] WASCA 105 [22], [28].
Mitchell JA was correct to consider and form a view on the merits of the appeal. Ground 3 fails. That leaves ground 5(c). It will be appreciated that, in ground 3, the appellant criticised Mitchell JA for considering the merits of the appeal when the appellant had not yet had an opportunity to formulate her grounds of appeal and submissions. That is no longer the case. The appellant ought to have filed her appellant's case by 17 July 2025. The appellant's case remains outstanding. Conformably with that omission, in the review application before us the appellant has not explained why Solomon J was wrong ‑ even arguably ‑ to dismiss the application for judicial review on the basis that an alternative remedy was available to the appellant in the form of an appeal to the Federal Circuit and Family Court of Australia, Division 1.
In our opinion, Mitchell JA was correct, for the reasons that his Honour gave, to conclude that the appeal had no reasonable prospect of succeeding. Mitchell JA was correct to find that the existence of the right to appeal from an order of the Family Court provided a compelling reason for the exercise of the Supreme Court's discretion to refuse to grant relief by way of judicial review and on that basis the appeal from Solomon J's order had no reasonable prospect of success. Ground 5(c) fails.
The appellant has not established error in Mitchell JA's decision. Mitchell JA's decision should be affirmed. The appellant's application filed 19 June 2025 must be dismissed. We so order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
Associate to the Hon Justice Vaughan
30 JULY 2025