JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JC -v- TH [2024] WADC 58
CORAM: BLACK DCJ
HEARD: 26 MARCH 2024
DELIVERED : 26 JULY 2024
FILE NO/S: APP 51 of 2023
BETWEEN: JC
Appellant
AND
TH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SCADDEN
File Number : RO/148/2023
Catchwords:
Procedural fairness - Unrepresented litigant - Lack of transparency of decision‑making - Issue estoppel in the context of Family Court proceedings
Legislation:
Criminal Procedure Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Matter remitted to Magistrates Court for re-hearing
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr G M Cridland |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49
Nugawela v American Express Australia Ltd [2016] WADC 170
Re Minister for Immigration and Multicultural Affairs
Ex Parte Lam [2003] HCA 6
Stone v Braun [2015] WASCA 103
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
BLACK DCJ:
Overview
The appellant and the respondent married in 2010 and went on to have five children together. Ten years later the marriage had irrevocably broken down and within weeks of the separation, orders were sought from the Magistrates Court restraining the appellant from contacting his former wife (the respondent).
The appellant now seeks the cancellation of a final Family Violence Restraining Order (FVRO) that was made in the Albany Magistrates Court on 1 September 2023 in favour of his former wife. An interim order to the same effect had been in place since 24 May 2023.
The parties had by the time of the FVRO hearing endured a four‑day contested trial in the Family Court. Following that trial, Justice O'Brien delivered a written decision and made accompanying Family Court Orders (FC Orders) on 10 November 2022. These orders regulated the manner in which the former husband and wife could interact, particularly in relation to the care of their children.
The FC Orders failed to resolve the issues between the parties and between 22 and 24 May 2023 the respondent applied for and was granted on an ex-parte basis, an interim FVRO.
In August of that same year a final FVRO hearing took place. At this hearing the presiding magistrate, Magistrate Scaddan, part way through the hearing, narrowed the scope of evidence by purporting to restrict the evidence to matters alleged to have occurred after the making of the FC Orders.
This was despite the fact that the respondent's particularised…
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- AGLC
- JC v TH [2024] WADC 58
- Case
- [2024] WADC 58
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around whether the Family Court had properly applied the principles of procedural fairness to JC, who was unrepresented. This included assessing whether the court had adequately informed JC of the legal requirements and the implications of certain decisions. Additionally, the court had to determine whether issue estoppel could be applied in family court proceedings, particularly in cases involving unrepresented litigants.
In its reasoning, the court emphasised that procedural fairness is a practical concept aimed at preventing practical injustice. It noted that while procedural fairness is equally applicable to both represented and unrepresented litigants, there is a greater need to ensure fairness when dealing with unrepresented parties. The court held that unrepresented litigants should be afforded some leniency and flexibility in their claims. It was also observed that while there is no absolute right to have a case heard on its merits, each party must be given a reasonable opportunity to be heard. Furthermore, the court underscored the importance of clear communication to avoid misleading self-represented litigants about legal procedures or substantive law.
The court found that the Family Court had not adequately ensured procedural fairness for JC, particularly in communicating the implications of certain decisions and the application of issue estoppel. Consequently, the appeal was successful on several grounds, and the decision of the Family Court was set aside.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Fairness is essentially a practical concept. It is not abstract in nature. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances.[12] [12] Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam [2003] HCA 6. While the requirement to afford procedural fairness to a litigant applies equally to a represented and an unrepresented litigant, there is a particular imperative in this respect when a party is unrepresented, especially when the other party is represented. A litigant in person should be afforded some leniency in relation to court rules and his claims should be approached with some flexibility.[13] [13] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 543. 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.[14] [14] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49. In communicating with a self‑represented litigant, the court must be careful to ensure that things said by the court do not inadvertently mislead the self‑represented litigant, including by reinforcing a misapprehension, about the applicable substantive or procedural law, or about the way in which the case is to be conducted.[15] [15] Downes v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193. As the Court of Appeal observed in Zerjavic v Chevron Australia Pty Ltd:[16] (a)the court's obligation is to ensure a fair and just trial for all parties;(b)a self-represented litigant is subject to the practice and procedure of the court as much as any other litigant;(c)the court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case); (d)a trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised; and(e)the trial judge's role in providing information to the self‑represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self-represented litigant. Grounds 2, 4, 5 and 7 relate directly or indirectly to the magistrate's treatment of matters said to have occurred prior to the making of the FC Orders on 10 November 2022. In the event that one or more of these grounds are made out, then the appeal would succeed and it would be unnecessary to consider any of the remaining appeal grounds. It is appropriate therefore to consider this issue first. The magistrate in her reasons for decision stated as follows:[17] … I have sought to limit the decision to consideration of matters that arose since the Family Court orders. I have done so mainly because the applicant alleges the respondent's behaviour since the Family Court orders is the reason why she made the application. …[17] Appeal Book, page 134.