KSJ v GJA - [2020] WADC 96

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KSJ -v- GJA [2020] WADC 96
CORAM:   BIRMINGHAM QC DCJ
HEARD:   20 APRIL, 14 & 19 MAY, 9 JUNE 2020
DELIVERED          :   1 JULY 2020
FILE NO/S:   APP 89 of 2019
BETWEEN:   KSJ
Appellant
AND
GJA
Respondent

ON APPEAL FROM:
Jurisdiction              :   PERTH MAGISTRATES COURT
Coram:   MAGISTRATE YOUNG
File Number            :   MC/PER/CIV/RO/1962/2019

Catchwords:

Appeal - Restraining Orders Act 1997 (WA) - Interlocutory decision - Setting aside summons to produce - Legitimate forensic purpose - Test to apply - Whether s 40(1)(a) of Magistrates Court (Civil Proceedings) Act 2004 applies - Right of appeal where no final order made

Legislation:

District Court Rules 2005 (WA), r 57(2)(b)
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 8, s 13, s 16(1)(q), s 40
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 71, r 71A
Magistrates Court Act 2004 (WA), s 10, s 12, s 14, s 21
Restraining Orders Act 1997 (WA), s 3, s 7A(a), s 24, s 44A(1), s 64, s 72(1)(a)

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr A J Aristei

Solicitors:

Appellant	:	Not applicable
Respondent	:	Kean Legal

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

Armstrong v Saxby [2016] WADC 87
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Laurent v Fates [2015] WASCA 226
Lovelady v Griffiths [2018] WADC 180
MJH v The State of Western Australia [2006] WASCA 167
Stanley v Layne Christensen Company [2004] WASCA 50
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

BIRMINGHAM QC DCJ:

Background

In the court below, the appellant has applied for a family violence restraining order against the respondent (FVRO). The appellant has also initiated similar proceedings against her former partner, SH. The applications are brought pursuant to pt 1B of the Restraining Orders Act 1997 (WA).
The respondent is the current partner of SH.
The appellant and SH have been involved in extensive Family Court proceedings regarding the care and custody of their two children.
The FVRO applications relate to the alleged conduct of the respondent and SH towards the appellant and her children and an incident allegedly involving the respondent at the appellant's property on 9 May 2019.
The appellant's application was originally set down for a final order hearing on 11 November 2019 however, when it became apparent early in the proceedings that the matter could not proceed that day, Magistrate Young adjourned the hearing to enable it to be heard jointly with the proceedings between the appellant and SH.
The learned magistrate then proceeded to deal with a summons to produce, issued by the appellant requiring the respondent to produce certain documents.
The documents sought were:
•The respondent's Certificate III in Child Care;
•Other documents relating to the respondent's child care qualifications;
•Medical report about the respondent's milk allergy;
•Medical report about the respondent's lactose intolerance;
•Medical report about the respondent's gluten allergy;
•The respondent's gym membership.
After dealing with issues related to the service of the proceedings the learned magistrate dismissed the appellant's summons to produce insofar as he considered the documents then being sought were not relevant to the issues to be determined at the hearing of the application for a final violence restraining order.
Relevant to this appeal the learned magistrate made orders:
1(a)The summons was properly served;
(b)The respondent is not in contempt of court for not providing the requested documents to the court;
(c)Costs thrown away for service of summons after respondent's lawyers refused service reserved pending the outcome of the final violence restraining order hearing;
(d)Summons to produce is set aside as the applicant has not established that the documents requested have any relevance to the issues to be determined at the hearing of the family violence restraining order.
The appellant now seeks to appeal the learned magistrate's determination pursuant to s 40(1) (a) of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
The two grounds of appeal allege, in essence, that the learned magistrate erred in law by first, applying the wrong test when setting aside the summons to produce and secondly, by reviewing the documents handed up by the person protected (the appellant) and making a decision on them but not admitting them into evidence.
The respondent has applied pursuant to r 57(2)(b) of District Court Rules 2005 (WA) for the appeal to be struck out on the grounds that there is no reasonable prospect of success and that there is no jurisdiction to hear the appeal.
I directed that the respondent's application and the appeal be heard together.

Application to strike out

Before I deal with the merits of the appellant's appeal, it is appropriate to deal with the respondent's application to strike out the appeal for want of jurisdiction.
The respondent contends there is no jurisdiction for the District Court to hear this appeal as it is not an appeal from a final order.
The respondent submitted that the only applicable basis for this appeal is s 64 of the Restraining Orders Act insofar as the orders were made in respect of proceedings commenced under the Restraining Orders Act.
Section 64(1) of the Restraining Orders Act provides:
64.Appeals
(1)A person aggrieved by the decision of a court -
(a)under section 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)to do any of the following -
(i)make, vary or cancel a final order;
(ii)refuse to make, vary or cancel a final order;
(iii)make any other order in relation to a final order,
may appeal against that decision in accordance with this section.
Section 23(1)(b) and s 29(1)(b) refer to telephone applications and hearings in the absence of the respondent and are not relevant to this appeal.
The right to appeal under the Act must be in relation to a 'final' order.
Section 3 of the Restraining Orders Act provides:
final order means any of the following -
(a) in relation to an FVRO, a conduct agreement order;
(b) in relation to a VRO or MRO, a consent order;
(c) a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e) a restraining order made at a final order hearing;
(f) a restraining order made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section;
(g) a restraining order that is a final order under section 63(4a) or 63A(3);
It is common ground that the orders made by the learned magistrate were not final orders as defined in s 3 of the Act. The final order hearing in relation to this matter was adjourned to a subsequent date and is yet to be heard.
The respondent submitted that insofar as s 64 of the Restraining Orders Act provides the only avenue for appeal, and no final order has been made, the appeal must fail for want of jurisdiction.
Critical to this appeal is whether the orders made by the learned magistrate in relation to the summons to produce were orders made under the Restraining Orders Act. If they were not made under that Act, any appeal therefrom would need to be found elsewhere: Laurent v Fates [2015] WASCA 226 [44].
Simply because proceedings have commenced under an Act, does not necessarily mean that every aspect of those proceedings are governed by that same Act.
Section 9 of the Magistrates Court Act 2004 (WA) provides that the court has the jurisdiction conferred on it by that Act and by other written laws.
Section 10 of the Magistrates Court Act provides that the court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act.
Section 72(1)(a) of the Restraining Orders Act prescribes that if the matter is being heard by the Magistrates Court, the practices and procedures to be followed are those under the Magistrates Court (Civil Proceedings) Act, unless otherwise prescribed.
Section 7A(a) of the Restraining Orders Act provides that a Magistrates Court may hear and make family violence restraining orders under, inter alia, s 24A of the Restraining Orders Act.
Section 8 of the Magistrates Court (Civil Proceedings) Act provides:
8. Statutory jurisdiction
The Court's civil jurisdiction includes any jurisdiction conferred on the Court by a written law other than this Act, other than jurisdiction conferred on the Court as a court of summary jurisdiction.
Section 12 of the Magistrates Court Act allows for the court to exercise more than one aspect of its jurisdiction at one sitting.
It is evident that there is a significant degree of interaction between the Restraining Orders Act and other legislation governing the civil proceedings in the Magistrates Court, especially in relation to the practices and procedures to be adopted.
In Laurent v Fates McLure P and Murphy JA left open the question as to whether the learned magistrate's decision to dismiss an application for a restraining order as an abuse of process remained within the Magistrate Court's civil jurisdiction.[1] The court considered that if the application pursuant to the Restraining Orders Act was within the Magistrate Court's civil jurisdiction, the appeal rights conferred by part 7 of the Magistrates Court (Civil Proceedings) Act may apply to the magistrate's decision.[2]
[1] Laurent v Fates [48].
[2] Laurent v Fates [51].
Section 40 of the Magistrates Court (Civil Proceedings) Act provides for appeal rights in relation to civil proceedings:
40.Appeal from Magistrates Court to District Court
(1)A party to a case that is not a minor case may appeal to the District Court against -
(a)any order made by the Magistrates Court in the course of proceedings in the case; or
(b)the judgment of the Magistrates Court in the case.
'Case' is defined in s 3 of the Magistrates Court (Civil Proceedings) Act as 'any proceedings in the Court involving or in connection with the Court's civil jurisdiction'.
As noted above, counsel for the respondent submits that s 64 of the Restraining Orders Act, expressly limits the circumstances in which a party may appeal decisions made under this Act. The respondent contends that the only avenue for appeal is confined to final orders and not otherwise.
In support of this, counsel for the respondent referred to and relied on the judgments of this court in Lovelady v Griffiths [2018] WADC 180 (Lovelady) and Armstrong v Saxby [2016] WADC 87 (Armstrong).
In Lovelady, the appellant, Mr Lovelady, appealed pursuant to s 40(1)(a) Magistrates Court (Civil Proceedings) Act, from the magistrate's refusal to award costs upon the dismissal of an application for a violence restraining order by Mrs Griffiths. Staude DCJ observed that any decision to allow or refuse a costs order application was expressly provided for by s 69 of the Restraining Orders Act as an exercise of the civil jurisdiction conferred by the Act itself.[3] Accordingly, unless any appeal against such decision fell within the ambit of s 64 of the Restraining Orders Act, no independent right of appeal was enlivened.[4] Accordingly the question raised by the decision in Laurent v Fates did not arise for consideration by His Honour.
[3] Lovelady [28].
[4] Lovelady [31].
In Armstrong, Gething DCJ, referring to Laurent v Fates, accepted that a right of appeal under s 40 of the Magistrates Court (Civil Proceedings) Act could exist if no other power in the Restraining Orders Act provided for the magistrate's decision.[5] The appeal before his Honour was in respect of the dismissal of an application for a violence restraining order expressly provided for in s 43A of the Restraining Orders Act. As the order arose under that Act, s 64(1) expressly provided that there was no right of appeal in relation to the magistrate's decision.[6]
[5] Armstrong [33].
[6] Armstrong [36].
Each appeal related to an exercise of power expressly conferred upon the court through the operation of the Restraining Orders Act and were governed by s 64 of the Act. Laurent v Fates, however, recognises that the court's exercise of power in restraining order proceedings may also be derived from the Magistrates Court's general civil jurisdiction and not solely from the Restraining Orders Act.[7]
[7] Laurent v Fates [44] - [51].
In this appeal, the appellant seeks to appeal the decision of the learned magistrate on what is essentially an interlocutory matter; the setting aside of a summons to produce within the proceedings prior to any final order hearing having occurred.
The respondent contends that there can be no right of appeal insofar the final order hearing is yet to occur and no final order has been made. If the respondent's contention is correct, it would necessarily compel the appellant to proceed with the final hearing without the benefit of the materials upon which she seeks to rely and perhaps the presentation of her case thereby significantly fettered, and to thereafter appeal the final order based on the learned magistrate's flawed decision at an earlier interlocutory stage of the proceedings.
Consequently, the appellant would be forced to proceed with the unnecessary expenditure of time, effort and associated judicial resources in continuing with a hearing that has been infected by an otherwise appealable error at an earlier stage. Such outcome is inconsistent with the court's express duty to ensure that cases are dealt with efficiently, economically and expeditiously and that its judicial and administrative resources are used as efficiently as possible: s 13 Magistrates Court (Civil Proceedings) Act.
It is apparent that interlocutory decisions by magistrates in relation to family violence restraining order proceedings are not necessarily solely given their power from the Restraining Orders Act.
As noted above, where the application for an order under the Restraining Orders Act is being heard by the Magistrates Court, the practices and procedures to be followed are those under the Magistrates Court (Civil Proceedings) Act, unless otherwise prescribed.[8]
[8] Restraining Orders Act s 72(1)(a).
Specifically in the present circumstances, the Magistrates Court has the power to cancel a summons or other document issued by the court if there is a good reason to do so: s 21 of the Magistrates Court Act.
In my view, the determination of whether the summons to produce ought to be set aside was not an exercise of power under the Restraining Orders Act but rather a decision exercised under the general civil jurisdiction of the Magistrates Court - that is to say, an 'order made by the Magistrates Court in the course of the proceedings in the case'.[9] The orders made by the learned magistrate are properly characterised as an interlocutory determination on the relevance and admissibility of material and the production of documents in the course of the proceedings and not otherwise.
[9] Magistrates Court (Civil Proceedings) Act s 40(1)(a).
It follows that, in the circumstances, the right to appeal such a decision is not limited to the appeals provision within the Restraining Orders Act but falls to be considered within the general appeals power under s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act.
Accordingly the application for dismissal of the appeal for want of jurisdiction must be dismissed.

Merits of the appeal

Having determined that the appeal is within jurisdiction, I turn to the merits of the appeal.
Section 40(4) of the Magistrates Court (Civil Proceedings) Act requires the appeal must be determined on the material and evidence that were before the Magistrates Court and any other evidence where leave has been given in exceptional circumstances (s 40(5)).
I have been provided with the transcript of the hearing in the Magistrates Court before the learned magistrate on 11 November 2019.
The appellant's grounds of appeal are:
(1)That the learned magistrate erred in law in determining the test for setting aside subpoenas was any relevance; and
(2)The learned magistrate erred by reviewing documents provided by the appellant and making a decision based on those documents, but not admitting them into evidence.
The appellant was self-represented in the hearing before the Magistrates Court and in this appeal. Whilst the appellant has previously completed a law degree she is not admitted to practice and has never practised as a legal practitioner. Whilst some latitude may be permitted in the drafting of the grounds of appeal it ought not be such as to unfairly prejudice the respondent. That said however, as observed by Beech J in Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 the court must ensure that a poorly expressed document or submission does not deny them a viable claim.[10]
[10] Ibrahim v The Honourable Justice Carolyn Martin [21] (Beech J citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 – 537.

Ground 1 – Setting aside summons to produce

On 25 October 2019, the appellant caused to be issued a summons to produce the abovementioned six documents at the Final Order Hearing, then listed for 11 November 2019.
The summons was issued pursuant to the procedure set out in s 71 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA). Rule 71 provides as follows:
71.Witness summons, request for and issue and service
(1)If a party wants to require a person to give evidence at a trial or to produce evidentiary material the party must lodge a request for the Court to issue a witness summons.
(2)The request must be in the approved form and must be accompanied by -
(a)a draft witness summons, in the approved form, that requires the witness to attend the Court to give oral evidence in the case; or
(b)a draft witness summons, in the approved form, that requires the witness to produce to the Court, either at the same time as giving the oral evidence or at an earlier time specified in the summons, evidentiary material that is relevant to the case. [emphasis added]
(2A)The request may be made before the case is listed for trial.
(3)If the Court issues the requested witness summons, the party must serve the witness summons on the witness at least 14 days before the trial date or an earlier date as directed by the Court. [emphasis added]
(4)The witness summons must be served personally.
(5)At the time a witness is served with a witness summons, or at a reasonable time before the attendance date -
(a)an amount that is likely to be sufficient to meet the reasonable expenses of attending the Court must be tendered to the witness; or
(b)arrangements to enable the witness to attend the Court must be made with the witness; or
(c)the means to enable the witness to attend the Court must be provided to the witness.
(6)The party which serves a witness summons must ensure that subrule (5) is complied with.
(7)The person who serves a witness with a witness summons must record how subrule (5) was complied with on a copy of the witness summons.
(8)If a copy of a witness summons contains information recorded in accordance with subrule (7) it is to be presumed that the information is true, unless the contrary is proved.
On the face of it r 71 calls for consideration of questions of relevance prior to the issue of the summons: r 71(2)(b). Further, the opening word 'If' in r 71(3) gives the Court a discretion to reject the request if the Court is not satisfied that the request is appropriate and directed to requiring the production of evidentiary material 'that is relevant to the case' or that the draft summons is otherwise than in the approved form.

Pursuant to r 71A(1) of the Rules, a witness served with a witness summons requested under r 71(2)(b) must comply with the summons by delivering or sending the evidentiary material and a copy of the witness summons to the court at the date, time and place specified for production.
If a party wishes to object to the production of any documentary material, the court has the power, upon application, to cancel a summons or other document issued by the court if there is good reason to do so: s 21 Magistrates Courts Act.
The respondent failed to comply with the summons to produce the requested documents set out in par 7 above. Counsel for the respondent explained her refusal to comply with the summons in terms that she objected to the appellant seeking documents that she considered 'invaded her privacy'.[11]
[11] ts 31 of 11 November 2019.
During the hearing before the magistrate on 11 November 2019, it became apparent that one of the appellant's principal concerns relevant to her making the application for a restraining order on behalf of her children was the conduct of the respondent, in conjunction with the appellant's ex-partner, and her treatment of the children whilst in her custody, including whether the children were being given food to which they were allergic.[12]
[12] ts 41 of 11 November 2019.
During the course of the hearing, some document(s) were produced to the learned magistrate for his inspection but not shown to the appellant. Following inspection of the document(s) and questioning the appellant as to the relevance of the materials sought, the learned magistrate set aside the summons to produce and returned the documents(s) to the respondent.
In setting aside the summons, the learned magistrate ruled that the relevance that was to be attributed to the materials was directed solely to credibility and as such would not be relevant at the final hearing insofar as it would be inadmissible as collateral evidence.[13]
[13] ts 65 of 11 November 2019.
In my opinion, the learned magistrate applied the wrong test. The proper test to apply at a preliminary stage is whether the document sought is relevant to a legitimate line of enquiry. The summons to produce must necessarily be directed to documents that have a 'legitimate forensic purpose'; that is to say seeking 'evidentiary material that is relevant to the case'.[14] That necessarily will include matters that may simply go to credit of a witness at the ultimate trial.
[14] Magistrates Court (Civil Proceedings) Rules r 71(2)(b).
Section 14 of the Magistrates Court Act provides that the rules of evidence applicable in the Supreme Court apply in the Magistrates Court.
In Stanley v Layne Christensen Company [2004] WASCA 50 at [9] the court said:
… In concluding that a legitimate forensic purpose had been established for the first and second respondents to issue a subpoena requiring the production of copies of the affidavits in the Family Court proceedings the learned Master [who was Master Sanderson] identified the principles which regulated the decision which he was required to make as follows:
There are, I think, four points of principle which emerge from the cases. They are:
(1) A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to the issues before the trier of fact, including for the purpose of meeting the opposing case by way of cross-examination:  see Apache Northwest Pty Ltd & Ors v Western Power Corporation (1998) 19 WAR 350 at 374; National Employers' Mutual General Insurance Association Ltd v Waind & Anor [1978] 1 NSWLR 372 at 385; Maronis Holdings Ltd & Ors v Nippon Credit Australia Ltd & Ors (2000) 18 ACLC 609 at 613 ‑ 614.
(2) In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. It may, for example, become apparent when a document is used in cross-examination to refute unforeseen evidence-in-chief. Thus, whether a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and [sic] fairly disposing of proceedings, even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence:  see Apache Northwest (supra) at 376.  Cases will be rare in which, prior to production of documents, a subpoena will be set aside as an abuse of process on the ground the documents by description are manifestly irrelevant to the subject proceedings, or are incapable of bearing upon matters of credit pertinent to the proceedings:  see Brand v Digi‑Tech [2001] NSWSC 425.
(3) At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage.  Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken:  see Khanna v Lovell White Durrant[1995] 1 WLR 121 at 123.
(4) There is no requirement that to avoid the stigma of fishing, a party must already by [sic] in possession of some evidence before issuing a subpoena.  Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues for which the evidence sought would be relevant:  see Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 105 FCR 136 at 143 ‑ 144; Chapman v Luminis Pty Ltd [2001] FCA 1580 at [48]. In the interests of a fair trial, litigation should be conducted on the footing that all relevant documentary evidence is available: see Bailey (supra) at 143.'
We agree, with respect, that the learned Master correctly identified and addressed the principles upon which a determination of whether or not the subpoena … should be allowed to stand [sic].
See also Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [18] (Steytler P).
As observed in StanleyvLayne Christensen Company above, the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial. Whether a legitimate forensic purpose exists and a document is 'necessary' to fairly dispose of proceedings is to be understood in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, and fairly disposing of proceedings, even if it might not readily be seen at an earlier stage in the proceedings as necessarily being admissible in evidence.
The appellant's basis for seeking a final order against the respondent is due to the respondent's alleged care of the children and her alleged recognition of the children's allergies. The documents the appellant seeks would seemingly have some relevance to a line of questioning about the respondent's understanding of the children's needs and possibly her whereabouts on days the children were alleged to have been in her care.
In my opinion, in setting aside the summons to produce on the ground that the documents related solely to credit and were inadmissible as collateral evidence, the test applied by the learned magistrate was too narrow. Whilst the question of whether the documents sought were collateral and therefore inadmissible as evidence as part of the appellant's case may be relevant at a future hearing, it is not the appropriate test to determine if the documents sought have to be produced at an earlier point in time. Such test fails to properly take account of the legitimate forensic purpose for which the appellant may wish to use the documents sought in the preparation and presentation of her case, including when cross-examining the respondent. Whether the documents sought are ultimately admitted into evidence falls for consideration at any future trial when they are sought to be tendered – not at a preliminary stage.
In my opinion there is utility in the existence of the documents sought in assisting the appellant in the preparation of her case and the cross‑examination of the respondent on matters of credit where the foundation of the FVRO is the respondent's alleged conduct.
I am satisfied that ground 1 has been made out and the appeal should be upheld.

Ground 2 – Refusal to admit documents into evidence

The second ground of appeal is that the learned magistrate erred by reviewing documents but not admitting them into evidence.
The documents to which the appellant referred is not readily apparent from the transcript of the hearing before the learned magistrate. It is further unclear as to what extent the learned magistrate relied upon them, if at all, when ruling on the appellant's summons to produce the documents.
Although the documents were not elicited during the hearing of this appeal, the appellant's written submissions refer to communications from the respondent's partner (SH) during other proceedings relating to the existence of the documents sought by her.[15]
[15] Paragraph 20 of the appellant's submissions dated 17 June 2020.
Section 16(1)(q) of the Magistrates Court (Civil Proceedings) Act provides that for the purpose of controlling and managing cases and trials, the court may refuse to admit into evidence a document that a party has not provided in accordance with the rules of court.
Further, s 44A(1) of the Restraining Orders Act specifies that rules of evidence may not apply in circumstances where there is a final order hearing, a hearing in the absence of the respondent and a hearing for variation or cancellation of a restraining order. The hearing before the learned magistrate was not either of those hearings and so the rules of evidence still applied.
For the supporting documents to be admitted into evidence, they are required to be relevant and admissible.[16]
[16] MJH v The State of Western Australia [2006] WASCA 167 [43].
The hearing before the learned magistrate was not a trial for a final order. The learned magistrate was not required to admit the documents into evidence in a preliminary hearing where the question as to their ultimate relevance to any matter in issue is yet to be determined. These are matters more properly left for the presiding judicial officer at the subsequent trial of this matter.
Accordingly ground 2 must be dismissed.

Disposition of appeal

In the course of the hearing of this appeal, I directed that the respondent produce to this court those documents that had earlier been produced to the learned magistrate when objecting to their production.
By her affidavit sworn 25 May 2020, the respondent deposed that the only document she had in her possession responsive to the appellant's summons was a document entitled 'Certificate III Childcare in Community Services (Children's Services)' issued by Kath Dickson Training Services dated 24 March 2000. The respondent further deposed that she had no other documents in the remaining five classes of documents sought by the appellant.
I view with some concern that the judicial resources in the proceedings below and this appeal have resulted from an objection being taken to being required to produce documents that, save for the above mentioned certificate, did not exist.
The respondent's decision to deliberately refuse to produce the documents sought (or indicate their non-existence) in the face of a court order to do so unnecessarily delayed and obfuscated the proceedings below.
Had the respondent simply responded to the summons as directed to do so in the manner as she has now done in this court, the appellant's application could have proceeded on 11 November or such other date as was next suitable to the court.
Whether the respondent genuinely believed that the appellant's summons 'invaded her privacy' or otherwise is not sufficient justification for the path that this litigation has unnecessarily travelled. To engage in what is an unnecessary objection and thereby contributed to significantly delaying the appellant's application for relief has no place in litigation today and ought to be discouraged.
I make the following orders
(1)The respondent's application to strike out the appeal be dismissed.
(2)The appeal be allowed.
(3)The judgment of the learned magistrate made 11 November 2019 be varied to set aside the orders in pars 1(b), (c), and (d), and in lieu thereof it be ordered that:
(i)Within seven days, the respondent to produce to the Magistrates Court a copy of any of the documents in each of the classes sought by the applicant in annexure 'A' to the summons to produce dated 25 October 2019;
(ii)Within seven days, the respondent verify on oath that she does not hold and has never held any other documents in the classes of documents sought by the applicant in annexure 'A' to the summons to produce dated 25 October 2019.
I will hear from the parties as to the terms of the orders and the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AZ
Associate to the Judge
1 JULY 2020