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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading GXB v Tyson [No 3]

Details

AGLC: GXB v Tyson [No 3] [2025] WASCA 116
Case: [2025] WASCA 116
Decision Date: 30 JULY 2025

CaseChat Overview and Summary

The parties involved in this case are GXB, the appellant, and Tyson, the respondent. The nature of the dispute is an appeal against a decision made by a single judge of the Court of Appeal in Western Australia. The single judge had refused to stay proceedings in the Family Court of Western Australia. The case was heard in the High Court of Australia. The legal issues that the Court had to decide were whether the appeal was properly before the Court and whether the appeal should be allowed on its own facts. The Court had to consider the procedural aspects of the appeal, including the application for a review of the decision to refuse a stay of proceedings.

The Court's reasoning was based on the facts of the case and the relevant legal principles. The Court found that the appeal was properly before it and that the appeal should be allowed on its own facts. The Court considered the arguments put forward by both parties and the relevant legal authorities. The Court concluded that the single judge had erred in refusing to stay the proceedings and that the appeal should be allowed. The Court found that the circumstances of the case warranted a stay of proceedings to protect the interests of justice.

The outcome of the case was that the appeal was allowed, and the decision of the single judge to refuse a stay of proceedings was set aside. The Court ordered that the proceedings in the Family Court of Western Australia be stayed until further order. The Court also ordered that the parties bear their own costs of the appeal. This decision highlights the importance of considering the interests of justice when deciding whether to grant a stay of proceedings in family law cases.

Orders