Kozak v Ehrhardt - [2024] WADC 6

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KOZAK -v- EHRHARDT [2024] WADC 6
CORAM:   GETHING DCJ
HEARD:   7 FEBRUARY 2024
DELIVERED          :   9 FEBRUARY 2024
FILE NO/S:   APP 27 of 2022
BETWEEN:   JAMES KOZAK
Appellant
AND
CATHERINE CHRISTINE EHRHARDT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MILLINGTON
File Number            :   MC/CIV/MID/RO/870/2021

Catchwords:

Appeals - Magistrates Court - Restraining orders - Whether a perfected order remitting a matter back to the Magistrates Court can be set aside on the ground of fraud

Legislation:

Restraining Orders Act 1997 (WA), s 44B

Result:

Application to set aside final orders dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr J R Young

Solicitors:

Appellant	:	Not applicable
Respondent	:	Barry Nilsson Lawyers (WA)

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

Abdel-Messih v Qaqish [2022] WASCA 30
Allbeury v Corruption and Crime Commission [2012] WASCA 84
DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226
Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Jonesco v Beard [1930] AC 298
Kozak v Ehrhardt [2022] WASCA 165
Kozak v Ehrhardt [No 2] [2023] WASCA 28
Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217
Miller v McKnight [2023] WASCA 182
Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201 (S)
Re Hall; Ex Parte Chin [No 2] [2011] WASC 155
Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
Zaghloul v Bayly [2023] WASCA 64

GETHING DCJ:

This is an application to reopen an appeal which was dealt with by me on 29 July 2022 by allowing it and making an order remitting the matter to the Magistrates Court for determination (Application). Mr Kozak, the appellant, seeks to reopen the appeal so that he can argue that I should replace the order remitting the matter to the Magistrates Court with an order either dismissing it or permanently staying it as an abuse of process.
At the hearing of this matter on 7 February 2024 I dismissed the application for reasons to be published later. These are my reasons for doing so.

Background

In order to deal with the application, it is necessary to briefly review the history of this litigation.
On 13 January 2022, the Magistrates Court made a misconduct restraining order (MRO) against Mr Kozak in favour of the respondent, Ms Ehrhardt (initial MRO trial). The MRO was for a duration of 12 months. It included a requirement that Mr Kozak not refer to Ms Ehrhardt by any electronic means, including by using the internet and any social network application (such as 'Facebook') to depict or refer to her in any offensive manner.
Ms Ehrhardt's MRO application was supported by an affidavit which she swore on 15 November 2021. The affidavit deposed to Mr Kozak having published many posts containing offensive material concerning her on two Facebook pages. Ms Ehrhardt, who is a member of a local government council, deposed to feeling offended, humiliated and intimidated, with particular reference to the publication of her address and the publication of images of firearms. She deposed to seeking an order preventing Mr Kozak from publishing further material and approaching within 500 m of her, her immediate family and her home address. The Facebook posts referred to in the affidavit were identified as attachments to the affidavit.
Mr Kozak appealed to the District Court against the MRO (DC Appeal). On 29 July 2022, I made orders setting aside the MRO, remitting the MRO application to the Magistrates Court and ordering a new trial of the matter before a different magistrate. I delivered oral reasons for making those orders. In essence, I set aside the MRO on the ground that the magistrate had failed to comply with Restraining Orders Act 1997 (WA) (ROA) s 44B. It relevantly provides:
[A]t the request of a party to an application, the registrar of the court where the application was made is to provide to the person a copy of any affidavit received in evidence in relation to the application.
I found that Mr Kozak was not provided with procedural fairness as he was not provided with a copy of the affidavit on which Ms Ehrhardt sought to rely for the MRO application, to which he was entitled as of right, either prior to or at the hearing of her MRO application.
My decision of 29 July 2022 was recorded in a formal order of the court.
On 19 August 2022, Mr Kozak appealed to the Court of Appeal against my order remitting his MRO application to the Magistrates Court.
Mr Kozak then sought a stay of the order remitting the MRO application pending the determination of his appeal. The Court of Appeal refused to do so, publishing reasons, which I will refer to as the Stay Reasons.[1]
[1] Kozak v Ehrhardt[2022] WASCA 165 (judgment of the court) (Stay Reasons).
In the Stay Reasons, the Court of Appeal observed that the three grounds of appeal were in substance to the effect that I erred in law by:[2]
1.finding the magistrate did not comply with his obligations under s 44B of the Restraining Orders Act;
2.accepting that the respondent's affidavit sworn 15 November 2021 complied with s 9(3)(c) of the Oaths, Affirmations and Statutory Declarations Act 2005 (WA); and
3.concluding that there was a meritorious case to be remitted for retrial when it was open to find that the respondent's affidavit sworn 15 November 2021 did not contain the attachments referred to in it.
[2] Stay Reasons [10].
In support of the stay application, Mr Kozak filed an affidavit in which he raised a concern as to whether the documents produced to the District Court were the same documents that were produced to the Magistrates Court as attachments to the affidavit sworn by Ms Ehrhardt on 15 November 2021.
The Court of Appeal identified three primary reasons for refusing to grant the stay. The first was that the court was not satisfied that, if a stay was not granted, the appeal would be rendered nugatory in a way that would justify the grant of a stay. The second and third are germane to the present application, so I will quote them:[3]
Second, we are not satisfied that the merits of the appellant's grounds of appeal are sufficiently strong to warrant the grant of a stay. A common order where an appellate court finds there to have been a failure to accord procedural fairness in proceedings below is to remit the matter for rehearing. None of the grounds of appeal identify any compelling reason why the primary judge erred in adopting that approach in the present case. The error contended for in ground 1 concerns the finding which led the primary judge to set aside the MRO, rather than any finding which led the judge to remit the MRO application to the Magistrates Court. Grounds 2 and 3 relate to the manner in which the attachments to the respondent's affidavit of 15 November 2021 were dealt with. That is not a matter which appears to us to be material to the question of whether there should be a retrial of the respondent's MRO application, at which time evidence will need to be tendered afresh and can be scrutinised. It does not appear to us from the material before this court that the respondent's MRO application is hopeless or doomed to fail. In the circumstances, it is difficult to see why an order remitting the MRO application, so that it can be the subject of a hearing that is procedurally fair to both the appellant and respondent, should not have been made.
Third, the balance of convenience appears to us to favour the refusal of a stay. Since the appeal to the District Court was determined, the respondent has been the subject of posts on social media which are capable of being characterised as intimidating and offensive. It is unnecessary for this court to reach any conclusion as to whether the material would justify the making of a restraining order or whether the appellant is responsible for the posts. It is not in the public interest for a person who continues to be the subject of publications of this type, from which she seeks the courts' protection, to be denied a hearing of her application for the MRO and the protection which the Restraining Orders Act provides until the appeal to this court is determined.
[3] Stay Reasons [20], [21].
The appeal was heard by the Court of Appeal on 9 February 2023. The court dismissed the appeal, publishing reasons the following day, which I will refer to as the Appeal Reasons.[4]
[4] Kozak v Ehrhardt [No 2] [2023] WASCA 28 (judgment of the court).
In the Appeal Reasons, the Court of Appeal set out what it regarded as the essence of the oral submissions made by Mr Kozak. It is again germane to the present application to quote them:[5]
1.The respondent had deliberately withheld the annexures to her affidavit in the Magistrates Court proceedings from the appellant after a magistrate repeatedly said at a directions hearing held on 15 November 2021 that the appellant should have a copy of the affidavit.
2.Between the time the respondent's affidavit was returned to her after the MRO was granted and the affidavit was handed to the District Court at the hearing of the appeal to that court, the respondent interfered with the attachments to her affidavit in the Magistrates Court.
3.This alleged conduct of the respondent had a tendency, and was intended, to pervert the administration of justice and should lead to an order dismissing the application for an MRO in order to protect the court from an abuse of the court's process and safeguard the administration of justice …
4.In these circumstances, the case should not have been remitted to the Magistrates Court for rehearing, but rather the primary judge ought to have made an order dismissing the MRO application.
[5] Appeal Reasons [14] (reference omitted).
The court went on to say:[6]
It is apparent from the material filed in relation to the stay application that many of the factual contentions noted above are disputed by the respondent. It is also apparent from the appellant's oral submissions that a substantial part of the evidence on which the appellant relies to seek to establish these facts arose or came to be appreciated only after the decision by the primary judge remitting the matter.
Nothing in the appellant's written and oral submissions provides any reason for doubting the correctness of the primary judge's decision to remit the MRO application for rehearing in the Magistrates Court. That was the appropriate course where it could not be concluded, on the material before the primary judge, that the respondent's application for an MRO was doomed to fail but the primary judge was not in a position to himself determine the MRO application. To the extent that the appellant seeks to raise issues about the evidence which might be relied on by the respondent in seeking to obtain an MRO, those issues are appropriately determined at the new hearing in the Magistrates Court rather than on appeal to this court.
Further, the remittal order does not prevent the appellant from seeking to have the MRO application dismissed in the Magistrates Court on the basis of an asserted abuse of process. Given the contested nature of the allegations, and the absence of any factual findings after hearing evidence, it would not be appropriate for this court, and it would not have been appropriate for the District Court, to attempt to resolve the factual contest on an appeal hearing. The merit of the appellant's abuse of process contentions (about which we make no comment) is appropriately assessed by the Magistrates Court in the fresh hearing and determination of the MRO application, in the event that the appellant chooses to pursue those contentions in the Magistrates Court.
For these reasons, at the hearing on 9 February 2023, we were satisfied that none of the appellant's grounds of appeal had any reasonable prospect of succeeding, in the sense of resulting in the setting aside of the primary judge's order remitting the case to the Magistrates Court. We therefore ordered that the appeal be dismissed.
[6] Appeal Reasons [15] - [18].
The MRO went to trial last year, with a number of hearings (MRO retrial). On 7 October 2023 a 2-year final MRO was imposed (final MRO decision).
No appeal has been lodged with this court from the final MRO decision.
On 18 October 2023, Mr Kozak sent an email to the District Court attaching an affidavit in which he requested the court to reopen the DC Appeal (being the Application).
In response, I convened a hearing on 7 November 2023. After hearing from Mr Kozak and counsel for Ms Ehrhardt, I made orders that:
1.By 22 December 2023 the appellant file and serve any:
(a)application for leave to adduce further evidence in the appeal;
(b)affidavit in support of the application; and
(c)outline of submissions in support of the application.
2.Unless otherwise ordered the application be determined on the papers.
3.The costs of the hearing today be reserved.
On 5 January 2024 Mr Kozak filed an outline of submissions (Appellant's submissions).
In the end, I formed the view that it was more appropriate to hear from the parties than to determine the Application on the papers. This hearing took place on 7 February 2024.

Determination

The specific order sought by Mr Kozak in the Application is an order that the matter heard and determined on 29 July 2022 be reopened, to allow him to 'enter new evidence, capable of affecting the Decision reached, which could not have been reasonably discovered at the time of hearing, in the interests of justice'. He also invites the court to stay the final MRO issued on 6 October 2023 in the interim. His end point is that the decision I should now come to, having considered the additional material which he refers to, is to dismiss or permanently stay the final MRO in the DC Appeal, rather than remitting it to the Magistrates Court.
In his submissions, Mr Kozak refers to the power to amend pleadings in Rules of the Supreme Court 1971 (WA) (RSC) O 21 r 5. However, this rule does not apply to grounds of appeal in a District Court appeal.
In his submissions Mr Kozak also refers to District Court Rules 2005 (WA) (DCR) r 56 which provides that except 'with the leave of the Court, a party to an appeal is not entitled to seek any relief or rely on any ground that is not set out in the notice of appeal or the answer, as the case may be'. Whilst there is a power to amend grounds of appeal, this power may only be exercised 'before or during the hearing of an appeal'.[7]
[7] DCR r 57(2)(i).
Rather, the relevant principles are those governing when an appeal which has been finally determined may be reopened or reheard, or a perfected order finalising an appeal recalled or varied.
Appeals are creatures of statute. A right of appeal exists to the extent, and only to the extent, that a statutory provision confers a right of appeal.[8] It is not a common law remedy.[9] The appellate jurisdiction of the District Court is determined by the statute creating the court and those conferring it with jurisdiction. This is the same as the Court of Appeal.[10] By analogy to the principles which apply in the Court of Appeal, any jurisdiction to reopen or rehear an appeal which has been finally determined, or recall or vary perfected orders, must be found within the statutory provisions conferring jurisdiction upon the court.[11] This rule is underpinned by the principles in respect of the finality of litigation:[12]
The principle that, subject to any statutory indications to the contrary, perfected orders of courts cannot be set aside rests upon the public interest in the finality of court judgments and orders … the judicial system would become discredited if 'final' orders were revealed as provisional or subject to reconsideration and collateral challenge …
[8] Abdel-Messih v Qaqish [2022] WASCA 30 [5] (judgment of the court).
[9] Allbeury v Corruption and Crime Commission[2012] WASCA 84 [80] (Buss JA).
[10] Polo Enterprises Australia Pty Ltd v Shire of Broome[2015] WASCA 201 (S) [5] (reasons of the court) (Polo).
[11] Polo [5]; Lashansky v Legal Practitioners Complaints Committee [2005] WASCA 217 [123] - [124] (judgment of the court) (Lashansky).
[12] Lashansky [151] (reference omitted). See also: Polo [5], [11].
With one exception, there is no express power in the District Court of Western Australia Act 1969 (WA) (DCA), the DCR, the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) nor the ROA to reopen an appeal or vary a perfected order following an appeal. The exception is the power of the court to correct clerical mistakes in judgments or orders.[13] However, a contention that a fraud has been committed which led the court to be misled is not an error which could be described as an accidental error to which this rule may apply.[14]
[13] Supreme Court Act 1937 (WA) (SCA) s 33 and RSC O 21 r 10, which apply in the District Court by virtue of DCA s 52 and DCR r 6.
[14] Re Hall; Ex Parte Chin [No 2][2011] WASC 155 [50] - [54] (Sleight Commr) (Hall).
There is no power to reopen an appeal or vary a perfected final order on the basis of alleged fresh evidence or changed circumstances.[15]
[15] Gamser v The Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145, 154 (Aickin J with whom Barwick CJ, Gibbs & Stephen JJ agreed); Lashansky [135].
However, again by analogy, I do accept that there is a power to set aside a perfected final order in an appeal to the District Court which has been obtained by fraud. This power could be implied as a power necessary for the court to protect the integrity of its own processes.[16]
[16] DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 [35] - [37] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); Lashansky [124] - [135]; Hall [26] - [34]. See generally: Heydon JD, Leeming MJ & Turner PG, Meagher, Gummow & Lehane's Equity Doctrines & Remedies LexisNexis Butterworths (5^th ed, 2015) [12-145].
The fraud alleged by Mr Kozak is that Ms Ehrhardt deliberately misled this court at the hearing of the appeal on 29 July 2022.
Mr Kozak's position is set out in his affidavit sworn 18 October 2023 and Appellant's submissions.
The nub of Mr Kozak's concern relates to the evidence relied on by Ms Ehrhardt to found the MRO, both on the initial application and the rehearing. Ms Ehrhardt's application is based on Facebook posts about her, which were Exhibit 1 to her initial affidavit in support. Her position is that they were made by Mr Kozak. At the hearing before me on 29 July 2022, I observed that at the initial MRO trial, Mr Kozak did not give evidence to the effect that the Facebook posts were fake or were not made by him, a position which he declined to clarify on appeal.[17]
[17] ts 9 - ts 10 (29 July 2022).
Ms Ehrhardt's position before the Magistrate at the initial MRO trial and this court on the DC Appeal was that the screen shots which were Exhibit 1 to her affidavit were taken by her.[18]
[18] See for example the Respondent's Outline of Submissions filed 25 July 2022, pars 32 and 44.
In the hearing before me on 29 July 2022, Mr Kozak drew my attention to the Facebook posts in Exhibit 1, in particular to the fact that the details as to who gathered the evidence, that is who retrieved the Facebook page and took a screen shot of it, had been concealed.[19]
[19] ts 15.
Mr Kozak tells me that, in the affidavit materials filed in support of the MRO retrial, Ms Ehrhardt said that she had used a marker to redact the identity of the person who retrieved the Facebook page. She did this as she was concerned that Mr Kozak might begin harassing those people.[20]
[20] Appellant's submissions, par 46.

In the course of the MRO retrial, Mr Kozak obtained information under summons identifying the person who retrieved the Facebook pages comprising Exhibit 1 as a Patricia Arndt.[21] Mr Kozak says that Ms Ehrhardt's action 'operated to deceive the Respondent that the Applicant was the person with personal knowledge, when in fact it was always Patricia Arndt'.[22]
[21] Appellant's submissions, par 28.
[22] Appellant's submissions, par 31.
The essence of the fraud alleged by Mr Kozak is that the hearing before me proceeded on the basis that the Facebook posts which founded the MRO were retrieved from the internet by Ms Ehrhardt. He says that this was misleading and deceptive as the true position (which only became known later) is that the Facebook posts were retrieved from the internet by Ms Arndt and sent by her to Ms Ehrhardt. He says that this action by Ms Ehrhardt was deliberate and amounted to both perjury and fraud. Specifically, his position is:[23]
To the issue of whether the 29 July 2022 decision in the District Court or either of the two hearings in the Supreme Court were affected by fraud are now placed in a current context, the retrial on 20 February 2023 before Magistrate Randazzo. The allegations of fraud by the Defendant in her conduct and evidentiary practices in the retrial are essentially the same.
…
It will be the Appellants position that the very same abuse of process allegations referenced by the Court of Appeals in its 10 February 2023 published decision, paragraph 17, have not been withdrawn and are maintained in present application before the court.
Appellant seeks to amend his grounds to present a position which aligns itself with procedure and precedent, relevant to the decision delivered by retrial Magistrate Randazzo on 6 October 2023.
The correctness of the decisions by District Appeals Court on 29 July 202 and the Court of Appeals on 9 February 2023, are not challenged, except insofar as they both provide the context to how the Defendant benefitted by her material deceptions and bad faith which advanced her Misconduct Restraining Order (MRO) application to a rehearing before Magistrate Randazzo on 20 February 2023.
[23] Appellant's submissions, pars 6 - 8.
The proper procedure to consider an application to set aside the orders I made on 29 July 2022 on the basis of fraud, would be to hold, in effect, a trial within the DC Appeal as to whether or not Ms Ehrhardt had engaged in fraud. It would not be appropriate to deal with the Application summarily.
In Jonesco v Beard Lord Buckmaster observed that:[24]
It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.
[24] Jonesco v Beard [1930] AC 298, 300 (Lord Buckmaster with whom Vicount Dunedin & Lord Warrington of Clyffe agreed) (Jonesco).
However, Lord Buckmaster did recognise that there is a jurisdiction to set aside a judgment for fraud on a motion for a new trial within the existing action.[25] His Lordship continued:[26]
If, however, for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.
[25] Jonesco (301).
[26] Jonesco (301).
In Spies v Commonwealth Bank of Australia, Handley JA referred to these comments by Lord Buckmaster and went on to say:[27]
The need referred to by Lord Buckmaster in Jonesco v Beard when departure from the established practice is permitted to state with the same clarity and specificity the particulars of the fraud relied upon means that a departure from the practice should not be allowed except in the simplest of cases.
Where such an action is brought after trial the statement of claim (or summons in the Commercial Division) must allege facts which establish that the plaintiff has reasonable prospects of success. This requires the plaintiff to plead that since the judgment he has discovered fresh facts which alone, or in combination with previously known facts, raise a serious question to be tried. The statement of claim must also allege that the party entitled to the benefit of the judgment was responsible for the fraud …
[27] Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 700 (Handley JA with whom Clarke JA agreed, as did Mahoney JA who made similar observations at 693).
The issue before me for consideration at this stage in the determination of the Application is thus whether to list the Application for a formal trial in the District Court on the issue of whether a fraud has occurred.
For three reasons, I decline to do so, and instead dismiss the Application.
The first reason is that in making the decision on 29 July 2022, I did not rely on the fact that it was Ms Ehrhardt who retrieved the Facebook posts from the internet. There was only really a passing reference in argument to the identity of the person who retrieved the Facebook posts from the internet. This was when Mr Kozak drew to my attention the fact that the identity of the person who retrieved the Facebook posts from the internet had been blacked out.[28] To determine the appeal, it was not necessary for me to attempt to resolve any factual contest between the parties, including the issue of the identity of the person who retrieved the Facebook posts from the internet. Indeed, the Court of Appeal in the Appeal Reasons said that it would not have been appropriate for me to have done so.[29] Rather, it was sufficient for me to be satisfied that, on the material before me, Ms Ehrhardt's application for a MRO was not doomed to fail,[30] a finding which I made in somewhat stronger terms.[31]
[28] ts 15 (29 July 2022).
[29] Appeal Reasons [17].
[30] Appeal Reasons [16].
[31] ts 32 (29 July 2022).
The second reason is that, even if I did find that Ms Ehrhardt engaged in the fraud asserted by Mr Kozak, set aside the orders made on 29 July 2022 and reopened the appeal, it would not automatically follow that I would have made a different final order. I come to this conclusion by testing what would be the case if, following a formal trial, I had found that Ms Ehrhardt engaged in the fraud asserted by Mr Kozak. This fraud would mean that Ms Ehrhardt deliberately misled the District Court by deposing that she was the one who retrieved the Facebook posts from the internet, when it was in fact Ms Arndt. A finding of fraud would have led me to reopen the DC Appeal and allow Mr Kozak to adduce further evidence. That further evidence would have been to the effect that it was Ms Arndt who retrieved the Facebook posts from the internet and sent them to Ms Ehrhardt. I would then have had to rehear the DC Appeal on this evidence and determine it.
I reiterate the observation by the Court of Appeal in the Appeal Reasons that, even on this scenario, it would not have been appropriate for me to have attempted to resolve any factual contest in the hearing before me.[32] Be that as it may, at its highest, the true position asserted by Mr Kozak is that the Facebook posts were retrieved from the internet by Ms Arndt and sent by her to Ms Ehrhardt. However, this finding would not have led me to make any different final order. It would not have made any difference to the issue of whether the initial MRO decision should have been set aside. The position would have remained that the Magistrate had failed to comply with ROA s 44B (quoted at [6]), which resulted in a breach of procedural fairness to Mr Kozak. In coming to this decision, I would not need to consider the quality of the evidence relied on by Ms Ehrhardt. It would be sufficient for me to find that her affidavit was not provided to Mr Kozak.
[32] Appeal Reasons [17].
Rather, the quality of the evidence relied on by Ms Ehrhardt was only relevant to the issue of whether I should remit the matter back to the magistrate.
On the one hand, as the Court of Appeal observed in the Stay Reasons, an order to remit is a common order where an appellate court finds there to have been a failure to accord procedural fairness.[33] The Court of Appeal also commented that it would not be in the public interest for Ms Ehrhardt to be denied a hearing on the merits of her MRO application (quoted at [12]). In the Appeal Reasons, the Court of Appeal observed that on the material before me, I could not conclude that Ms Ehrhardt's application for a MRO was doomed to fail (quoted at [15]).[34] The fact that the Facebook posts may have been retrieved from the internet by Ms Arndt and sent by her to Ms Ehrhardt, does not change this conclusion.
[33] Stay Reasons [20].
[34] See further my reasons at ts 32.
On the other hand, the order sought by Mr Kozak, being to not remit, would have had the effect of summarily dismissing or permanently staying the MRO application. As the High Court has recently observed, the power to permanently stay a matter which has not been heard on the merits on the ground of an abuse of process is one that should only be exercised in an exceptional case, as a last resort to protect the administration of justice where no other option is available.[35] A finding to the effect that the Facebook posts may have been, or even were, retrieved from the internet by Ms Arndt and sent by her to Ms Ehrhardt, falls far short of this standard.
[35] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [3] (Kiefel CJ, Gageler & Jagot JJ).
So even if I had been satisfied that the Facebook posts had been retrieved from the internet by Ms Arndt and sent by her to Ms Ehrhardt, I would have still made an order remitting the matter to the Magistrates Court for determination by another magistrate.
The third reason is that, in any event, it would be open to me to strike out the residue of the DC Appeal, including the Application. The power to do so is contained in MCCPA s 43(3), which provides that 'the appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal'.[36] The term 'disproportionate' means out of proportion.[37] Whether the likely costs are disproportionate is an evaluative question of fact and degree.[38]
[36] The appeal provisions of the MCCPA apply to appeals under the ROA: ROA s 64(2).
[37] Miller v McKnight [2023] WASCA 182 [23] (judgment of the court) (Miller).
[38] Miller [23].
Here only the second limb applies, being whether likely costs of the appeal to the parties would be disproportionate to the nature of the case which is the subject of the appeal. The case the subject of an appeal is a MRO. To hold a trial on the issue of fraud would take probably a day, perhaps two. However, given the formality of this hearing (as mentioned at [40]), there would need to be a considerable amount of cost incurred in getting the matter up for a formal trial. The costs which Ms Ehrhardt, who is represented, would incur, would be in the thousands of dollars. In my view, this would be disproportionate to the nature of the case which is the subject of the appeal especially given the alternative of a trial on the merits in the Magistrates Court. This is in the context that the initial DC Appeal hearing only took around two hours and did not involve calling any witnesses.
Having come to this conclusion, I then have a discretion. In the exercise of the discretion, I am not required to consider the merits of the decision below. Otherwise, the discretion is an unfettered discretion to be exercised judicially according to the justice of the case.[39] A significant factor in the exercise of the discretion is that Mr Kozak is, in effect, trying to mount a collateral challenge to the final MRO decision. It is open to Mr Kozak to challenge this decision on appeal on the merits, subject to being granted leave to do so out of time.[40] In an appeal, he could raise any concerns he has as to the quality, or admissibility, of the evidence placed before the Magistrates Court by Ms Ehrhardt. So there is no substantive injustice to him in striking out the appeal. Moreover, for the second reason I have set out, even if I had found that Ms Ehrhardt had engaged in fraud in the manner asserted by Mr Kozak, I would have nonetheless made the same final order to remit the matter to the Magistrates Court.
[39] Miller [27].
[40] MCCPA s 40(3).
Rather than strike out the residue of the DC Appeal, it is sufficient if I utilise general case management powers to dismiss the Application for the reasons I have outlined (relying on the principles in MCCPA s 43(3) by analogy).
I add one further observation. On the materials which Mr Kozak relies on for the Application, at a number of points he makes a submission to the effect that he was given insufficient opportunity to consider the affidavit evidence relied on by Ms Ehrhardt at the final MRO hearing in February 2023. This is not relevant to the determination of the Application. Rather, it goes to the merits of the decision to grant the MRO. As I have said, if Mr Kozak wishes to appeal the final MRO decision on the merits, he may do so. What he cannot do is to in effect try and open a back door appeal route by collaterally challenging the final MRO decision by making an application to set aside my decision on 29 July 2022.
As the Court of Appeal has observed on occasion, 'there is typically no injustice in having a case determined on its merits'.[41] In this case, there was, and continues to be, no injustice in having the MRO application determined on its merits.
[41] Zaghloul v Bayly [2023] WASCA 64 [52] (reasons of the court); Sommerville Kalgoorlie Pty Ltd v Gullan Pty Ltd [2023] WASCA 45 [3] (reasons of the court).
For these reasons, at the hearing on 7 February 2024, I dismissed the Application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
9 FEBRUARY 2024