KSJ v GJA
[2021] WASCA 98
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KSJ -v- GJA [2021] WASCA 98
CORAM: MITCHELL JA
BEECH JA
VAUGHAN JA
HEARD: 20 MAY 2021
DELIVERED : 31 MAY 2021
FILE NO/S: CACV 125 of 2020
BETWEEN: KSJ
Appellant
AND
GJA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BIRMINGHAM DCJ
File Number : APP 36 of 2020
Catchwords:
Appeals - Appeal from decision made in proceedings under the Restraining Orders Act 1997 (WA) - Whether the District Court of Western Australia has jurisdiction pursuant to s 40 of the Magistrates Court (Civil Proceedings) Act2004 (WA) to hear an appeal from a decision of the Magistrates Court of Western Australia to cancel an interim family violence restraining order - Whether the District Court of Western Australia had jurisdiction under s 64 of the Restraining Orders Act1997 (WA) - Whether decision to cancel an interim family violence restraining order is a decision 'in relation to a final order' - Whether effect of the magistrate's decision to cancel the interim family violence restraining order was to dismiss the application for a final family violence restraining order
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Restraining Orders Act 1997 (WA), s 64
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Armstrong v Saxby [2016] WADC 87; (2016) 90 SR (WA) 1
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Jackson v Chrisp [2012] WASCA 158
Komorowski v Ong [2019] WASCA 201; [2020] ALMD 1039
KSJ v GJA [2020] WADC 140
KSJ v GJA [2020] WADC 96
Laurent v Fates [2015] WASCA 226
Lewis v Sergeant Riley [2017] NSWCA 272; (2017) 96 NSWLR 274
Lovelady v Griffiths [2018] WADC 180; (2018) 96 SR (WA) 108
Mohammadi v Bethune [2018] WASCA 98
O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356
Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404
PAR v JLT [2015] WASC 362
Rayney v AW [2009] WASCA 203
Trajkoski v Director of Public Prosecutions (WA) [2010] WASCA 119; (2010) 41 WAR 105
JUDGMENT OF THE COURT:
Introduction
The appellant applied in the Magistrates Court of Western Australia for a family violence restraining order (FVRO) under pt 1B of the Restraining Orders Act 1997 (WA) against the respondent. The respondent is the partner of SH, who is the appellant's former partner. The appellant was granted, ex parte, an interim FVRO against the respondent. The application for an FVRO and the interim FVRO were to prevent contact between the respondent, on the one hand, and the appellant and her children, on the other hand.
The appellant's FVRO application was listed for final hearing but was adjourned several times, in part due to an interlocutory appeal (the first appeal), instituted by the appellant in the District Court of Western Australia, from a decision of a magistrate to dismiss a summons to produce documents issued by the appellant in her FVRO application.
After an adjournment, the appellant's FVRO application was relisted for final hearing on 23 April 2020. On that day, the parties agreed that the hearing could not proceed because the first appeal was part heard. Thus, the appellant's FVRO application was to be adjourned to await the outcome of the first appeal. Notwithstanding that this was so, the magistrate engaged in an exchange with the appellant concerning the merits and prospects of the appellant's application. In the course of that exchange, the appellant said she wanted to withdraw her FVRO application against the respondent. She explained that she could no longer subject her children to the impact of the proceedings. At the conclusion of that hearing, the magistrate made orders formally cancelling the interim FVRO, noting that he understood the appellant to be inviting him to do so. The magistrate did not make orders dismissing the appellant's substantive FVRO application. Rather, the magistrate adjourned that application to a date before his Honour, at which time he said he would deal with costs and would formally dismiss the FVRO application.
At the next hearing in the appellant's FVRO proceedings, the appellant indicated her expectation that, after receiving judgment in the first appeal, the FVRO application would proceed to trial. The FVRO application was again adjourned.
Subsequently, the appellant's first appeal was upheld and orders were made for the production of stipulated classes of documents.
The appellant then again appealed to the District Court - this time against the magistrate's decision to cancel the interim FVRO. In the District Court, the judge dismissed the appellant's appeal on the basis that the District Court did not have jurisdiction under s 64 of the Restraining Orders Act to hear an appeal from a decision to cancel an interim FVRO.
The appellant now appeals against the judge's decision that her appeal to the District Court was incompetent.
The appellant's submissions and grounds raise a number of issues and make a number of complaints. However, the single issue dispositive of this appeal is the jurisdiction question: was the primary judge correct in concluding that the appeal to the District Court was incompetent? If his Honour was correct in so finding, the appeal to this court must be dismissed and there will be no occasion for this court to consider other complaints made by the appellant in the grounds and submissions. If, on the other hand, his Honour erred in so finding, the appeal must be upheld and orders should be made to give effect to the judge's conclusion that the magistrate erred in the manner explained later in these reasons.
For the reasons that follow, in our opinion, the primary judge was correct to find that the District Court does not have jurisdiction to hear an appeal from a decision to cancel an interim FVRO. Consequently, the appeal to this court must be dismissed.
Background
The appellant applied for an FVRO against the respondent, who is the current partner of the appellant's former partner,[1] pursuant to pt 1B of the Restraining Orders Act. The appellant also initiated similar proceedings against her former partner, SH.[2]
[1] Magistrates Court 13 May 2019, ts 2.
[2] KSJ v GJA [2020] WADC 140 (primary reasons) [2] ‑ [3].
The FVRO applications related to alleged conduct of the respondent and SH towards the appellant and her children and an alleged incident on 9 May 2019 at the appellant's property.[3] The application for the FVRO against the respondent sought to prevent the respondent from having contact with the appellant and her children.[4]
[3] Primary reasons [5]; Magistrates Court 13 May 2019, ts 2.
[4] Primary reasons [4].
On 13 May 2019, the appellant was granted an interim FVRO against the respondent.[5]
[5] Primary reasons [4]; Magistrates Court 13 May 2019, ts 3 ‑ 4.
As outlined later in these reasons, under the Restraining Orders Act, a respondent must be served with an interim order and must endorse on a copy of the order whether they object to a final order being made. The respondent objected to the interim FVRO,[6] triggering an obligation on the registrar to fix a hearing date for the substantive FVRO application.[7]
[6] Magistrates Court 15 May 2019, ts 5.
[7] Restraining Orders Act, s 33. See further at [39], below.
The appellant's application was set down for a final order hearing on 11 November 2019. However, the final order hearing did not occur on that day. After dealing with a summons to produce issued by the appellant and learning of the evidence that the parties sought to adduce, the magistrate decided that there would not be enough time to take evidence that day.[8]
[8] Magistrates Court 11 November 2019, ts 61 ‑ 62, 64.
By the summons to produce, the appellant sought to require the respondent to produce certain documents at the final order hearing. The magistrate dismissed the summons to produce on the ground that the documents the appellant sought were not relevant to her allegations against the respondent.[9] That decision was the subject of the appellant's first appeal to the District Court.[10] The first appeal was heard in the District Court on 20 April 2020, 14 May 2020, 19 May 2020 and 9 June 2020.[11]
[9] Primary reasons [6]; Magistrates Court 11 November 2019, ts 64 ‑ 68.
[10] Primary reasons [7].
[11] Primary reasons [7].
On 25 November 2019, the appellant's FVRO proceedings against the respondent went before the magistrate who was sitting on the appellant's FVRO application against SH to decide whether the two proceedings should be consolidated. Her Honour dismissed the application to consolidate the proceedings on the basis the appellant did not consent to consolidation[12] and it would be unfair to the appellant to consolidate the proceedings while the first appeal was still pending determination.[13] The magistrate adjourned the final hearing of the FVRO application against the respondent to 23 April 2020.[14]
[12] Magistrates Court 25 November 2019, ts 8.
[13] Magistrates Court 25 November 2019, ts 18 ‑ 20.
[14] Primary reasons [8].
On 23 April 2020, the matter came before a different magistrate, who noted that the parties were agreed that the final order hearing could not take place until the first appeal had been resolved:[15]
HIS HONOUR: Yes. Okay. Anyway, look, it seems as though everyone is agreed that today's hearing be vacated. Mr [respondent's counsel], I think it sounds as though it's agreed.
[RESPONDENT'S COUNSEL]: Yes, your Honour. Obviously, you can't proceed if her application for evidence to be brought - - -
[15] Magistrates Court 23 April 2020, ts 7.
The magistrate asked the appellant about the basis of her FVRO application against the respondent and about the first appeal. His Honour expressed some views about the merits of both. Specifically, the magistrate expressed doubts about the District Court's jurisdiction to hear the first appeal:[16]
HIS HONOUR: Yes, yes. Because I was about to sort of add, not that it's my decision, but there is, I think, ample authority on such appeals as yours. I expect [the judge] will very swiftly deal with your application.
[APPELLANT]: Your Honour, yes, the ‑ what it's - - -
HIS HONOUR: Let me make it clear. It's my understanding that appeals to the District Court can only be made in respect to final orders made on a restraining order.
[APPELLANT]: On a restraining order, yes, your Honour, but it's different for interlocutory, and there's Supreme Court plus - - -
HIS HONOUR: Well, you get to find out.
[16] Magistrates Court 23 April 2020, ts 3.
The magistrate repeated his view on jurisdiction, with which the appellant disagreed. The magistrate also said that the appellant may be continuing her FVRO application against the respondent on frivolous and vexatious grounds:[17]
[17] Magistrates Court 23 April 2020, ts 8 ‑ 9.
HIS HONOUR: Because I think you're unlikely to succeed in the District Court, with the greatest respect.
[APPELLANT]: The Supreme ‑ and I really appreciate it. Your opinion is similar to others who look at it at first instance. I've got a very strong barrister's opinion, and I will be using counsel in the District Court and Supreme Court. I have ‑ I am not entering this lightly, and it's in the interests of my children that I am - - -
HIS HONOUR: Yes. Anyway, look, I'm simply offering you my view that - - -
[APPELLANT]: Thank you.
HIS HONOUR: - - - no appeal lies from any interlocutory decision of a magistrate under the Restraining Orders Act.
[APPELLANT]: You're right, but this isn't under the Restraining Orders Act. So the matter may have originated in the Restraining Orders Act, but the appeal isn't under the Restraining Orders Act. So section 64 of the Restraining Orders Act only applies to final orders, and that got expanded after November 2016. So, yes, I completely appreciate it. It's ‑ your view is the same as - - -
HIS HONOUR: Yes. And also, I proffer the view ‑ and I can say this because I won't be hearing your final order hearing ‑ is that your endeavours to seek admission of facts and subpoena documents really just go beyond what is reasonable, is really just an outright fishing exercise of no relevance to your application.
[APPELLANT]: I think a trial would indicate otherwise, but I appreciate your Honour's view.
HIS HONOUR: Anyway, and that, of course, in my view, exposes you to an issue of costs should it be unsuccessful at trial.
[APPELLANT]: Given ‑ arguably the opposite, but given that the Act - - -
HIS HONOUR: Because the argument might be under section 68 that you perhaps haven't commenced on this basis, but you are continuing your application on the basis of what might be argued to be frivolous and vexatious grounds.
[APPELLANT]: I take that on board, your Honour, but I don't (indistinct) so.
HIS HONOUR: Given the existence of Family Court orders - - -
[APPELLANT]: Yes, your Honour.
HIS HONOUR: - - - given that there perhaps remain issues between you and [SH] that are not the responsibility of Ms [respondent].
[APPELLANT]: Your Honour, I guess there are no issues, from my perspective, with [SH] given that we have final orders and I'm a protected person, but he consented to both of them.
HIS HONOUR: Anyway, I'm on transcript - - -
[APPELLANT]: Sure. Thank you.
HIS HONOUR: - - - and Mr [respondent's counsel] no doubt will refer to my comments in any application for costs later in the year if you end up being unsuccessful. And I expect that costs would be significant, as they will be in any unsuccessful District Court appeal.
[APPELLANT]: Yes, your Honour. I'm well aware. I'm very well aware.
After briefly discussing other matters, the magistrate asked the parties for their availability for a mention in 10 weeks' time. In that context, the appellant asked to withdraw her application for an FVRO against the respondent. The magistrate decided that he would, that day, make orders to formally cancel the interim FVRO and that he would adjourn the FVRO application and bring the matter before his Honour for another mention at a later date to then deal with costs. The magistrate noted that he understood the appellant to be inviting him to cancel the interim FVRO. The following sets out the material parts of the exchange in full:[18]
[18] Magistrates Court 23 April 2020, ts 12 ‑ 15.
HIS HONOUR: Yes. I've done my best. I'm just trying to work out ‑ say, 10 weeks.
[RESPONDENT'S COUNSEL]: Sorry, your Honour. I don't have the calendar in front of me.
HIS HONOUR: No, nor do I.
JSO: Sorry. I can get that (indistinct)
[APPELLANT]: I'm very concerned about this matter going on and - - -
HIS HONOUR: Sorry?
[APPELLANT]: I'm very concerned about this matter going on and the ongoing impact on my children.
JSO: 10 weeks from now is 2 July.
HIS HONOUR: Sorry, what date in July?
JSO: The 2nd.
HIS HONOUR: You're unavailable on 1 July, I see, Mr [respondent's counsel]. 2 July?
[RESPONDENT'S COUNSEL]: Thank you, your Honour.
HIS HONOUR: Ms [appellant], 2 July?
[APPELLANT]: I can't continue to expose my children to what they're experiencing. I'm going to withdraw my application.
HIS HONOUR: Sorry?
[APPELLANT]: I'm going to withdraw my application.
HIS HONOUR: What application?
[APPELLANT]: The FVRO application.
HIS HONOUR: Watch out. Because you've got a lawyer on the other side.
[RESPONDENT'S COUNSEL]: She's a lawyer as well.
[APPELLANT]: I understand, your Honour. I'm not a lawyer, [respondent's counsel].
…
HIS HONOUR: You shouldn't be interpreting, Ms [respondent], my ‑ sorry, Ms [appellant] ‑ my intentions today to try and get you to withdraw. I was simply exploring what this case was all about, because when I read the volume of material on this file, a lot of questions are raised, particularly when I had the view that there are Family Court orders in place and that no prosecution has been made by DCP.
[APPELLANT]: Yet.
HIS HONOUR: I know that that's a slow process, but, you know, after 10 months - - -
[APPELLANT]: But the investigation didn't start until - - -
HIS HONOUR: And you tell me that you have an order against … your former husband, and that that order includes the children.
[APPELLANT]: No. They ‑ because we've got Family Court orders, they're - - -
HIS HONOUR: The children are not named on that order?
[APPELLANT]: Not the final one, no, your Honour. They were on the interim one.
HIS HONOUR: Okay. So you've simply got an order against him. And then, of course, the Family Court orders prevail anyway.
[APPELLANT]: Yes, they do, your Honour.
HIS HONOUR: And if there's a problem with the Family Court orders and the way the children are being looked after, that's a matter for the Family Court.
[APPELLANT]: And DCP, your Honour. So DCP will sort that out.
HIS HONOUR: Yes. Yes. Are you wishing to discontinue this application today?
[APPELLANT]: Yes, your Honour.
HIS HONOUR: Are you sure? Then subject to hearing from you, Mr [respondent's counsel], I'm doing two things, at least: (1) cancelling the interim order made on 13 May 2019; subject to hearing from you, Mr [respondent's counsel], dismissing the original application.
[RESPONDENT'S COUNSEL]: Your Honour, we would obviously be seeking costs in this matter. There is an issue ‑ another firm is actually dealing with the District Court appeal. Now, am I to assume the District Court is going to be withdrawn as well?
[APPELLANT]: We will have to sort that out. If this is no longer - - -
HIS HONOUR: I think, in fairness to Ms [appellant], Mr [respondent's counsel], what I might do is cancel ‑ because that's what I think Ms [appellant] is inviting me to do ‑ cancel the interim order today, adjourn the application for a mention towards the end of the month, which will be after 14 May, and if that appeal is discontinued or if a decision is made, I will know about that when it's back before me, and I will hear any costs argument, and you can respond to any costs argument. Subject to my making a direction now on Mr [respondent's counsel] office that they provide you ‑ and is email okay with you from Mr [respondent's counsel's] office?
[APPELLANT]: Yes, your Honour. Yes, your Honour.
HIS HONOUR: Via email, Mr [respondent's counsel], with - - -
[APPELLANT]: Can I have a hard copy as well in the post?
…
HIS HONOUR: And so mail and email, Mr [respondent's counsel], firstly, a schedule of what costs you might be claiming, and justify that, if you wouldn't mind, and copy to the court, because I will have a look at it as well. And secondly, your argument, Mr [respondent's counsel], under section 68, your submissions are briefly submissions under section 68. That's the section that talks about costs and those two nasty words, 'frivolous' and 'vexatious'.
[APPELLANT]: Yes, your Honour.
…
[APPELLANT]: Will your Honour be the one hearing the vexatious - - -
HIS HONOUR: I will be making a decision on: (1) whether costs are justified, and with reference to section 68; (2) if I do make an order for costs, what that amount should be ‑ which is not necessarily going to be what Mr [respondent's counsel] is asking for. (emphasis added)
After discussing the parties' availability for that further hearing, the magistrate confirmed that at the conclusion of the present hearing he would make orders formally cancelling the interim FVRO and that at the next hearing he would deal with costs and would formally dismiss the FVRO application. The appellant appeared to confirm that she was content to proceed in that way:[19]
[APPELLANT]: And to confirm that the hearing on ‑ that you're talking about will appear in this court and it will be purely on the matter of costs?
HIS HONOUR: Only on the matter of costs, and on that day, apart from dealing with the issue of costs, I will be formally dismissing your application. Today, I am formally cancelling the interim order.
[APPELLANT]: Okay.
HIS HONOUR: Do you follow ‑ which is what you're wanting to do?
[APPELLANT]: Yes, that is, your Honour.
[19] Magistrates Court 23 April 2020, ts 17.
The magistrate concluded by formally making the following orders, as his Honour had foreshadowed:[20]
HIS HONOUR: … Okay. Thank you. I now make formally an order that the interim order made back in May last year is cancelled. Adjourn to 26 May before me, 9.30, with priority, for determination of any costs application and ultimately for me to then close the file or dismiss the original application. Okay. Thank you very much. Thank you, Mr [respondent's counsel].
[20] Magistrates Court 23 April 2020, ts 20; primary reasons [11].
The magistrate's handwritten record of proceedings for 23 April 2020 states:
Applicant ‑ IP
Resp. Yes, with [respondent's counsel]
After some 'debate' applicant wished to discontinue/withdraw her application and cancel IFVRO
Orders:
1.IFVRO made 13/5/19 cancelled[.]
2.Adj to 26/5/20 before Mag G for argument on respondent's costs[.]
3.Respondent to file and serve s[c]hedule of costs sought and brief submissions on 5.6[indistinct] and whether 'frivolous' or 'vexatious'[.]
The appellant said, in her appeal to the District Court, that, after 23 April 2020, she enquired with police about the status of the interim FVRO and was told that it remained in force.[21]
[21] Primary reasons [12].
On 19 May 2020, judgment in the first appeal was reserved.[22]
[22] Primary reasons [15].
On 26 May 2020, the matter again came before the magistrate who, on 23 April 2020, had cancelled the interim FVRO. The parties provided his Honour an update on the status of the first appeal, which was still yet to be decided. In light of that, the parties and the magistrate agreed that the FVRO matter should be further adjourned. The appellant reiterated her view that the District Court would have jurisdiction to hear her first appeal. She also said she expected that, upon receiving a decision in the first appeal, the parties would go to trial for the FVRO application against the respondent:[23]
HIS HONOUR: Ms [appellant], what's your expectation with the District Court? I thought it would be all over with.
[APPELLANT]: I know, your Honour, and I say this with the greatest respect: your Honour perhaps is mistaken as to the right of appeal to the District Court from family violence restraining orders, not necessarily with family violence restraining orders but with interlocutory matters, and so section 40 does apply, of the Magistrates Court Civil Proceedings, and that is ‑ so my expectation in the District Court is that there will be ‑ Ms [respondent's] team would ‑ their application would be dismissed and the District Court will have jurisdiction to hear the application around subpoenas.
As my expectation, then that hearing will occur in the District Court and then a ruling will be made on that. So I was very amenable to a ‑ and then we come back here and then we go to trial for the FVRO. So I was very amenable to an adjournment, but Mr [respondent's counsel] did not give me enough time to respond and I wasn't able to ‑ with the matters I had on yesterday. It's not that I'm opposed to an adjournment, not at all. I just ‑ the late notice. (emphasis added)
Neither the parties nor the magistrate mentioned that the interim FVRO had been cancelled, nor that the appellant had, on 23 April 2020, expressed a desire to withdraw the FVRO application.[24] The matter was further adjourned to 29 July 2020.[25]
[23] Magistrates Court 26 May 2011, ts 97 ‑ 98.
[24] Primary reasons [13].
[25] Magistrates Court 26 May 2011, ts 100.
On 27 May 2020, the Magistrates Court issued to the parties a Notification of Cancellation of Restraining Order.[26] The Notification was in the following terms:
[26] Primary reasons [14].
On 29 May 2020, the respondent's solicitor filed an affidavit in the first appeal, attaching the Notification.[27]
[27] Primary reasons [16].
There was a further hearing in the first appeal on 9 June 2020 and judgment was reserved.[28]
[28] Primary reasons [16].
On 10 June 2020, the appellant appealed to the District Court against the magistrate's decision on 23 April 2020 to cancel the interim FVRO against the respondent.[29] Specifically, the appeal notice in the District Court records the appeal as an appeal against the decision 'Cancelling the Restraining Order'. The competency of that appeal is the critical issue in this appeal.
[29] Primary reasons [18].
On 1 July 2020, the appellant's first appeal was upheld and orders were made for production of stipulated classes of documents.[30]
[30] KSJ v GJA [2020] WADC 96.
On 29 July 2020, the substantive FVRO application came back before the magistrate. The appellant referred to the decision in the first appeal and to her pending appeal to the District Court against the cancellation of the interim FVRO order, seeking an adjournment of the substantive FVRO application until after the determination of the pending appeal. The application was adjourned until 14 October 2020.[31] We will say more as to the hearing of 29 July 2020 and two subsequent hearings later in these reasons.
[31] Magistrates Court 29 July 2020, ts 6 - 8.
The appellant's appeal to the District Court was heard on 3 September 2020 and 29 September 2020.
It is convenient to outline the statutory framework before turning to the primary judge's reasons for concluding that the appeal was incompetent.
Statutory framework
Restraining Orders Act
Part 2A of the Restraining Orders Act is titled 'Provisions for FVRO and VRO'. Section 24A(1) and s 24A(2) of the Act sets out who may make an application for an FVRO:
(1)An application for an FVRO may be made by -
(a)the person seeking to be protected, if the person is 16 years of age or older; or
(b)a police officer on behalf of the person seeking to be protected, regardless of the age of the person.
(2)An application for an FVRO may also be made -
(a)if the person seeking to be protected is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person; or
(c)if the regulations so provide, by a person acting on behalf of another person in circumstances prescribed by the regulations for the purposes of this paragraph.
Section 24A(3)(c) relevantly provides that an application for an FVRO is to be made in accordance with the rules of court to the Magistrates Court.
Section 26 states that in an application for an FVRO made pursuant to s 24A, the applicant must indicate whether they wish to have the first hearing of the application held in the absence of the respondent or proceed directly to a defended hearing. If the applicant indicates they wish to have the first hearing held in the absence of the respondent, a hearing for that purpose must be fixed in accordance with the rules of the court[32] and the first hearing is to be held in the absence of the respondent.[33]
[32] Restraining Orders Act, s 26(2).
[33] Restraining Orders Act, s 27(1).
Pursuant to s 29(1), at a first hearing held in the absence of the appellant, the court may:
(a)make an FVRO or VRO; or
(b)dismiss the application; or
(c)adjourn the matter to a mention hearing; or
(d)at the request of the applicant, discontinue the application.
Section 29(3) provides that if the duration of an FVRO (or VRO) made under s 29(1)(a) is longer than 72 hours, the order is an interim order and div 4 of pt 2A of the Restraining Orders Act applies.
Division 4 of pt 2A is titled 'Procedure when interim order made'. Section 31 provides that, within 21 days of being served with an interim order, a respondent must complete the respondent's endorsement copy of the order and return it to the registrar. If the respondent does not object to the interim order becoming a final order, it becomes a final order:
32.Respondent does not object to final order being made
(1)If a respondent -
(a)returns the respondent's endorsement copy of an interim order in accordance with section 31; and
(b)indicates on it that the respondent does not object to the interim order becoming final,
the interim order becomes a final order with the same terms as the interim order.
If the respondent objects to the interim order becoming final, a date will be fixed for a hearing:
33.Respondent objects to final order being made
(1)If a respondent -
(a)returns the respondent's endorsement copy of an interim order in accordance with section 31; and
(b)indicates on it that the respondent objects to the interim order becoming final,
the registrar is to fix a hearing and notify all parties of the hearing.
As already noted, the respondent in this case objected to the interim FVRO.[34]
[34] Magistrates Court 6 June 2019, ts 2; primary reasons [57].
Although s 33(1) does not expressly state that the hearing to be fixed pursuant to that section will be a final order hearing, it is clear from the Act as a whole that that is so; see for example s 33(2).
Division 2 of pt 4 deals with 'final order hearings'. Section 42 provides, so far as is material:
42. Attendance at final order hearing
…
(2)If a respondent does not attend a final order hearing and the applicant does attend, the court -
(a)if it is satisfied that the respondent was -
(i)in the case of a hearing fixed under section 33, notified of the hearing; or
(ii)in the case of a hearing fixed under section 40(3)(c), 41(4) or 43A(7)(b), served with a summons requiring the respondent to attend the hearing,
is, subject to subsection (3), to hear the matter in the absence of the respondent; or
(b)otherwise, is to adjourn the hearing.
(3)If -
(a)a respondent does not attend a final order hearing; and
(b)the applicant does attend; and
(c)the court is satisfied in accordance with subsection (2)(a); and
(d)an earlier restraining order is in force in respect of the matter,
the court is to make a final order in the same terms as the earlier order unless any new ground or matter is raised by the applicant at the final order hearing.
Section 43 provides that, subject to s 42, at a final order hearing the court may make a final order of the type and with the terms it considers appropriate.
Part 5 of the Restraining Orders Act concerns the procedures for varying and cancelling restraining orders.
Section 45 provides that a person protected by a restraining order may apply to vary or cancel it. By s 45(4), an application to cancel a restraining order is to be made in the prescribed form. By s 49, at the hearing of an application made under s 45, the court, relevantly, has the power to cancel an interim order.
Section 49B(1) provides that in considering whether to vary or cancel an FVRO, the court is to have regard to:
(a) the matters referred to in section 10F; and
(b)if the application for the variation or cancellation is made by the person protected, whether or not it is possible that threats have been made against, or some other pressure has been brought to bear on, the person protected.
Section 10F relevantly provides as follows:
10F.Matters to be considered by court generally
(1)When considering whether to make an FVRO and the terms of the order, a court is to have regard to the following -
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(e)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(f)hardship that may be caused to the respondent if the order is made;
(g)any family orders;
(h)other current legal proceedings involving the respondent or the person seeking to be protected;
(i)any criminal convictions of the respondent;
(j)any police orders made against the respondent;
(k)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(l)any police incident reports relating to the respondent;
(m)any risk assessment, or risk-relevant information, relating to the relationship between the respondent and the person seeking to be protected;
(n)any other matters the court considers relevant.
(2)A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
Section 64 of the Restraining Orders Act makes provision for rights of appeal in the following manner:
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.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
(3)If the decision was made by the Children's Court when constituted so as not to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act 1988 section 41.
(4)If the decision was made by the Children's Court when constituted so as to consist of or include a judge, the appeal is to be made in accordance with the Children's Court of Western Australia Act 1988 section 42A.
(5)If the decision was made by the District Court, the appeal is to be made to the Court of Appeal in accordance with section 79(1)(a) of the District Court of Western Australia Act 1969.
(6)If the decision was made by a judge of the Supreme Court, the appeal is to be made to the Court of Appeal in accordance with section 58 of the Supreme Court Act 1935.
(6a)If the decision was made by a court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth, the appeal is to be made -
(a)in the case of a decision of a court of summary jurisdiction, to the Family Court of Western Australia in accordance with section 211(2) of the Family Court Act 1997; and
(b)otherwise to the Court of Appeal of the Supreme Court in accordance with section 211(3) of the Family Court Act 1997.
(6b)If -
(a)the decision was made under section 63(1) to make a restraining order against a person charged with an offence; and
(b)the person charged is convicted of that or another offence; and
(c)the person charged appeals against the conviction or the sentence imposed,
any appeal under subsection (1) by the person charged against the decision is to be made to the court that hears and determines the appeal against the conviction or sentence.
The term 'final order' is defined by s 3 of the Restraining Orders Act as follows:
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)[.]
Other legislation
Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) provides for a right of appeal from a civil case in the Magistrates Court as follows:
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.
(2)An appeal against the judgment of the Magistrates Court in a case that is a minor case is subject to section 32.
(3)An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.
(4A)The appeal must be conducted in accordance with rules of court made by the District Court.
(4)The District Court must decide the appeal on -
(a)the material and evidence that were before the Magistrates Court; and
(b)any other evidence that it gives leave to be admitted.
(5)Leave may only be given under subsection (4)(b) in exceptional circumstances.
(6)Subsection (4) does not prevent the District Court from dealing with an appeal against a decision of the Magistrates Court to admit or refuse to admit any evidence.
Section 3 of the Magistrates Court (Civil Proceedings) Act defines 'minor case' as having the meaning given by s 26. Section 26 relevantly provides that:
minor case means -
(a) a claim within the jurisdiction of the Court where -
(i)the value of the claim or of the relief claimed is not more than the minor cases jurisdictional limit; and
(ii)the claimant has elected to have the claim dealt with under the minor cases procedure;
or
(b)a matter within the jurisdiction of the Court referred to in section 8 that is declared to be a minor case for the purposes of this Act by the written law that confers jurisdiction on the Court to deal with the matter; or
(c)any other claim within the jurisdiction of the Court (including a claim within the jurisdiction of the Court by virtue of a consent given under section 6(1)(f)) that the parties agree is to be treated as a minor case.
Section 8 of the Magistrates Court (Civil Proceedings) Act is in the following terms:
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 10 and s 11 of the Magistrates Court Act 2004 (WA) provide as follows:
10.Civil jurisdiction
The Court's civil jurisdiction is set out in the Magistrates Court (Civil Proceedings) Act 2004.
11.Criminal jurisdiction
(1)The Court's criminal jurisdiction is set out in this section.
(2)The Court has jurisdiction -
(a)to hear and determine a charge of a simple offence; and
(b)to hear and determine a charge of an indictable offence that can be dealt with summarily; and
(c)to commit a person charged with an indictable offence that is to be dealt with on indictment to the District Court or the Supreme Court for trial or sentence; and
(d)to commit a person charged with an indictable offence that is to be dealt with summarily to the District Court or the Supreme Court for sentence; and
(e)to deal with any case that, under a written law, is to be dealt with by a court of summary jurisdiction.
(3)The jurisdiction referred to in subsection (2) is to be exercised subject to -
(a)The Criminal Code;
(b) the Criminal Procedure Act 2004;
(c)the Children's Court of Western Australia Act 1988 Part 3;
(d)any other written law that confers jurisdiction to deal with a charge of an offence on a court of summary jurisdiction.
(3a)The Court's criminal jurisdiction includes any jurisdiction that is conferred on the Court by a written law other than this Act and that is expressly said to form part of the Court's criminal jurisdiction.
(4)In exercising its criminal jurisdiction, the Court is a court of summary jurisdiction.
Primary reasons
The appellant's grounds of appeal in the District Court were:[35]
[35] Primary reasons [19].
1.The Magistrate made an error of law in cancelling the Restraining Order.
2.The Magistrate did not follow the Restraining Order [sic] Act when cancelling it[.]
3.The Magistrate should have requested additional information and it is requested that this now be provided[.]
4.The Magistrate did not follow the correct procedure[.]
5.The Magistrate did not properly take into account the elements as required by the Restraining Order [sic] Act[.]
6.If the Magistrate had heard the additional evidence it would have been obvious not to cancel it.
7.The Magistrate's [sic] Court made an error in keeping the FVRO as valid.
Primary judge's consideration of the merits of the grounds of appeal
His Honour said that the seventh ground appeared to respond to the Magistrates Court's delay in notifying the parties that the interim FVRO had been cancelled. His Honour concluded that this ground was not necessary. Given that delay, the appellant's appeal to the District Court was brought within time and no extension was required.[36]
[36] Primary reasons [21].
The judge summarised grounds 1 ‑ 6 as one ground, namely that the magistrate erred by failing to comply with the requirements of pt 5 of the Restraining Orders Act in cancelling the interim FVRO upon the appellant's oral application on 23 April 2020.[37] His Honour treated this ground as containing two limbs.[38]
[37] Primary reasons [20].
[38] Primary reasons [22].
First, the appellant submitted that the magistrate erred by failing to require the appellant to lodge her application to cancel the interim FVRO in the prescribed form. With reference to the Magistrates Court Act, the Magistrates Court (Civil Proceedings) Act and the Restraining Orders Act, the judge held that the appellant's application to withdraw her FVRO application did not need to be in written form before the magistrate could deal with it.[39]
[39] Primary reasons [28] ‑ [34].
Secondly, the appellant submitted that the magistrate did not properly take into account the factors prescribed by s 49B(1) and s 10F of the Restraining Orders Act before cancelling the interim FVRO. His Honour found that these factors must be considered when deciding whether to cancel or vary either a final or an interim FVRO.[40] The judge accepted the appellant's evidence that, during the hearing on 23 April 2020, she felt under intense pressure not to continue the proceedings and that her decision to withdraw the FVRO application was made 'in the heat of the moment'.[41] The judge found that, while the magistrate ensured the appellant appreciated the consequences of her request to withdraw her FVRO application, he did not turn his mind to the matters required by s 49B. In particular, the magistrate was required to satisfy himself that the appellant's request was freely made and not made while under pressure, and he ought to have made further enquiries about the welfare of her children, who were also protected by the order. Further, the judge found, in circumstances where the appellant was then seemingly in a distressed state, the magistrate ought to have invited the appellant to take time to consider her position and then, if she so decided, to make a formal application for dismissal of the FVRO application.[42]
[40] Primary reasons [22] ‑ [27].
[41] Primary reasons [36] ‑ [38].
[42] Primary reasons [39] ‑ [41].
Notwithstanding this view, the judge ultimately concluded that the District Court did not have jurisdiction under s 64 of the Restraining Orders Act to hear the appellant's appeal and consequently dismissed the appeal.[43]
Jurisdiction under s 64 of the Restraining Orders Act
[43] Primary reasons [63].
The judge began by characterising what had occurred on 23 April 2020. Significantly, his Honour said, on that day the magistrate cancelled the appellant's interim FVRO against the respondent but 'did not make a final order dismissing the appellant's application for an FVRO'. The final order hearing of the application was simply adjourned to a nominated date. Accordingly, at the time of the appeal in the District Court, the appellant's FVRO application remained 'live' in the Magistrates Court.[44]
[44] Primary reasons [42] ‑ [43].
The appellant commenced the appeal in the District Court under s 64 of the Restraining Orders Act.[45] After setting out s 64 and the definition in s 3 of 'final order',[46] the judge concluded that the cancellation of an interim order cannot be said to fit within the definition of 'final order'.[47] His Honour considered that: [48]
[t]he question that arises is whether the cancellation of an interim order, in that it affects the continuance of a final FVRO hearing, constitutes a 'final order' for the purposes of s 64(1).
Evidently, in the judge's view, this was the only arguable way that the magistrate's order to cancel the interim FVRO could be said to be a 'final order'.
[45] Primary reasons [45].
[46] Primary reasons [48] ‑ [50].
[47] Primary reasons [51].
[48] Primary reasons [52].
The crux of the judge's reasoning was that an FVRO application for a final order is not reliant on the existence of an interim order and, therefore, the cancellation of an interim order cannot be considered a 'final order'. The judge pointed to s 29 of the Restraining Orders Act, which permits the court, at an application for FVRO in the absence of a respondent, to adjourn the matter to a mention hearing without granting an interim FVRO. Pursuant to s 41(4), the matter can then be set down for a final order hearing, subject to s 40.[49]
[49] Primary reasons [61] ‑ [62].
The judge also referred to PAR v JLT, a case concerning an appeal against the making of an interim order. There, Fiannaca J held that 'there is no provision for an appeal against a decision to make an interim violence restraining order'.[50]
[50] Primary reasons [53] quoting PAR v JLT [2015] WASC 362 [7].
Grounds of appeal to this court
The appellant appeals to this court on the following grounds:
1.Erred in law in not finding that the District Court had jurisdiction to hear the appeal (paragraph 28, 44, 45, 46, 47, 51, 55, 63)[.]
2.Erred in fact about the cancellation status on the record at the Magistrate's [sic] Court of the original application at the time the appeal made. (paragraph 42, 43, 44, 45, 51, 55[).]
3.Erred in fact and law about the requirement to complete a form to cancel and [sic] FVRO (paragraph 28, 34, 42, 43, 44, 45)[.]
4.Erred in fact that the appellant's submissions on that the Magistrate erred in failing to require the appellant to lodge the prescribed form for an application to cancel the interim FVRO was filed without leave (paragraph 28, 43)[.]
5.Erred in fact that the appellant's submissions on that the Magistrate erred in failing to require the appellant to lodge the prescribed form for an application to cancel the interim FVRO was filed after [the judge] had reserved his decision (paragraph 28)[.]
6.Erred in fact that the appellant's submissions on that the Magistrate erred in failing to require the appellant to lodge the prescribed form for an application to cancel the interim FVRO were significantly out of time (paragraph 28)[.]
7.Erred in law and fact as to the definition and what amounts to pressure, was unreasonable and against the weight of evidence (paragraph 37, 38)[.]
8.Erred in law and fact when he didn't find the Magistrate's conduct to be bias and inappropriate with a protected person in a family and domestic violence matter, this was unreasonable and against the weight of evidence (paragraph 39, 40)[.]
9.Erred when he didn't find that his own conduct to be bias and inappropriate that he hear the appeal with a protected person in a family and domestic violence matter (paragraph 38, 39, 40)[.]
10.Erred when he did not find that the Magistrate acted towards the Appellant in a manner such as to give rise to a reasonable apprehension of bias and this was unreasonable and against the weight of evidence (paragraph 38, 40)[.]
11.Erred in law and fact and his decision was unreasonable and against the weight of evidence as to the impact of the Magistrates' and Judge's conduct amounted to pressure on the appellant (paragraph 38, 40)[.]
12.Erred in law and fact and his decision was unreasonable and against the weight of evidence as to the impact of the opposing counsel's conduct amounted to pressure (paragraph 38, 40)[.]
13.Erred in law and fact and his decision was unreasonable and against the weight of evidence that the respondent and or the appellant's ex[‑]husband's behaviour placed pressure on the appellant (paragraph 36, 38, 40)[.]
14.Erred in law and fact and his decision was unreasonable and inconsistent with the Judge's DV bench handbook that the appellant's ex[‑]husband's behaviour was an attempt to coercively control her (paragraph 36, 38, 40)[.]
15.Erred in law and fact not awarding costs to the appellant[.]
16.Erred in law and fact not awarding indemnity costs to the appellant[.]
Only ground 1 relates to whether the District Court had jurisdiction to hear the appeal. But, as we have already observed, only the question of jurisdiction need be considered.
The appellant's submissions on ground 1
The appellant submits that the District Court had jurisdiction to hear the appeal from the Magistrates Court pursuant to either or both of s 40 of the Magistrates Court (Civil Proceedings) Act or s 64 of the Restraining Orders Act. As will be seen, the appellant advances four alternative pathways to the conclusion that the judge had jurisdiction.
Section 40 of the Magistrates Court (Civil Proceedings) Act
First, the appellant submits that the District Court had jurisdiction to hear the appeal by virtue of s 40(1)(a) of the Magistrates Court (Civil Proceedings) Act.[51] As set out above, that provision confers a right to appeal to the District Court against 'any order made by the Magistrates Court in the course of proceedings' in a case other than a minor case.
[51] Appellant's submissions [9].
The appellant submits that s 40 can apply to matters that have their origins in the Restraining Orders Act.[52] She says that this question was left open in Laurent v Fates.[53]
[52] Appellant's submissions [9] ‑ [10].
[53] Laurent v Fates [2015] WASCA 226.
The appellant submits that clear words are needed before a right of appeal - which is a substantive right - should be taken to have been excluded. She submits that no such clear words are found in s 64 of the Restraining Orders Act. Unlike some other Acts with which the appellant drew a contrast, nothing in the language of that Act is, she submits, exclusive or exhaustive.[54]
[54] Appeal ts 31, 33, 35 - 40, 42.
The appellant's second argument has two steps. The first step is, the appellant submits, that in exercising a discretion to depart from the procedural requirements set out in the Restraining Orders Act, the magistrate was acting pursuant to powers conferred on him by the Magistrates Court (Civil Proceedings) Act, not the Restraining Orders Act. She submits that in departing from the requirements of the latter Act, particularly s 49B and s 10F, the magistrate must be taken to have been exercising power under s 13, s 14, s 15 or s 16 of the Magistrates Court (Civil Proceedings) Act, pointing specifically to s 13(1), s 14(6), s 15(2) and s 16(2). She also points to r 109 of the Magistrates Court (Civil Proceedings) Rules.[55]
[55] Appellant's submissions [20], appeal ts 43, 44 - 48.
The second step is that, consequently, adopting the reasoning of Birmingham DCJ in the first appeal,[56] there is a right of appeal under s 40 of the Magistrates Court (Civil Proceedings) Act.
[56] KSJ v GJA [2020] WADC 96.
The appellant also submits that the magistrate departed from the requirements of the Restraining Orders Act and adopted his own procedures, which resulted in a denial of procedural fairness and in turn gives rise to a right of appeal under s 40 of the Magistrates Court (Civil Proceedings) Act.[57] She also submits it would be a breach of procedural fairness if a magistrate were able to ignore requirements set out in legislation without being subject to review by a higher court in an appeal.[58]
Section 64 of the Restraining Orders Act
[57] Appellant's submissions [38].
[58] Appellant's submissions [39].
The third and fourth of the appellant's pathways contend that the District Court had jurisdiction to hear her appeal pursuant to s 64 of the Restraining Orders Act.
The appellant's third argument is that after the magistrate cancelled her interim FVRO against the respondent, but before her appeal in the District Court, her FVRO application was also cancelled.[59] She submits that consideration of the records of the Magistrates Court demonstrates that the effect of the order of 23 April 2020 was not only to cancel the interim FVRO, but also to cancel the substantive FVRO application.
[59] Appellant's submissions [33] ‑ [36], [41], [43].
Consequently, the appellant submits that the judge had jurisdiction to hear her appeal pursuant to s 64(2)(b)(ii) of the Restraining Orders Act, on the basis that she is a person aggrieved by a decision of a court to refuse to make a final order.
By her fourth argument, the appellant submits the judge had jurisdiction to hear her appeal pursuant to s 64(1)(b)(iii). That is, she submits that the magistrate's order cancelling the interim FVRO was a decision made 'in relation to a final order', the final order being an order for a final FVRO against the respondent.[60]
[60] Appellant's submissions [46].
The appellant submits that 'in relation to' should not be construed in a restrictive or narrow way. She submits that 'in relation to' refers to either a direct or indirect relationship between the decision to 'make any other order' and the 'final order'.[61] The appellant refers to O'Grady v The Northern Queensland Co Ltd ‑ a case about the jurisdiction of the wardens court pursuant to s 80 of the Mining Act 1968 ‑ 1983 (Qld) ‑ in support of her submission[62] that 'in relation to' is an 'expression of broad import'.[63]
Disposition of the jurisdictional question: section 40 of the Magistrates Court (Civil Proceedings) Act
[61] Appellant's submissions [48].
[62] Appellant's submissions [47].
[63] O'Grady v The Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 374; appeal ts 50 - 51.
We turn to consider the merit of these arguments, beginning with the first.
The appellant's first argument: concurrent appeal rights
Section 40 of the Magistrates Court (Civil Proceedings) Act confers a right of appeal on a party to a case in the Magistrates Court that is not a minor case to appeal against any order made by the court in the course of proceedings in the case. The broad scope of that right - relating to any order in the course of proceedings - should be noticed. It encompasses interlocutory orders.
On the face of things, that appeal right, if applicable, would encompass a case in which the Magistrates Court was determining an application under the Restraining Orders Act. Proceedings under the Restraining Orders Act are, by s 8 of the Magistrates Court (Civil Proceedings) Act, part of the civil jurisdiction of the Magistrates Court. That court's jurisdiction under the Restraining Orders Act is not conferred on the Magistrates Court as a court of summary jurisdiction, and thus falls within the ambit of s 8 of the Magistrates Court (Civil Proceedings) Act. The issue raised by ground 1 is whether the general right of appeal conferred by s 40 of the Magistrates Court (Civil Proceedings) Act applies to a decision made under the Restraining Orders Act.
In Laurent v Fates, this court observed that the appeal rights conferred by pt 7 of the Magistrates Court (Civil Proceedings) Act (in which s 40 is contained) would arguably apply to a decision to strike out a misconduct restraining order application for abuse of process.
A provision such as s 40(1) of the Magistrates Court (Civil Proceedings) Act has the dual function of conferring a right of appeal on the parties identified in the provision and conferring jurisdiction on the court to which the appeal may be brought. Consequently, such a provision engages the well‑established principle that it is inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.[64] Further, the existence of two overlapping rights of appeal is far from unheard of.[65]
[64] Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404, 421; Lewis v Sergeant Riley [2017] NSWCA 272; (2017) 96 NSWLR 274 [5], [26].
[65] Lewis v Sergeant Riley [22].
Nevertheless, for the reasons that follow, in our opinion, the elaborate stipulation in s 64 of the Restraining Orders Act of rights of appeal in relation to specified species of decisions under the Restraining Orders Act should be taken to be intended to be exhaustive, so as to exclude the general and broad right of appeal conferred by s 40(1) of the Magistrates Court (Civil Proceedings) Act against orders made in the course of proceedings in the Magistrates Court.
Where two or more statutory enactments comprise a legislative scheme, the enactments should be construed accordingly and the court should endeavour to produce a rational, sensible, efficient and just operation.[66]
[66] Trajkoski v Director of Public Prosecutions(WA) [2010] WASCA 119; (2010) 41 WAR 105 [50] ‑ [52]; Mohammadi v Bethune [2018] WASCA 98 [36].
The following features of the statutory scheme, in combination, persuade us of the conclusion in [82] above.
First, and most significantly, s 64 of the Restraining Orders Act specifically refers to and incorporates pt 7 of the Magistrates Court (Civil Proceedings) Act, in which s 40 is located. Section 64(2) provides that where the decision the subject of the proposed appeal is made by the Magistrates Court, the appeal under s 64 is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act (subject to a presently immaterial exception). In enacting s 64 of the Restraining Orders Act with its specific reference to pt 7 of the Magistrates Court (Civil Proceedings) Act - in which s 40 of that latter Act is contained - the legislature cannot be taken to have overlooked the rights of appeal in s 40 of the Magistrates Court (Civil Proceedings) Act.
Secondly, in enacting s 64 of the Restraining Orders Act, the legislature has made elaborate provision stipulating specific kinds of decisions under the Restraining Orders Act in respect of which a right of appeal against the decision is conferred. Rights of appeal are conferred in relation to a decision to:
(1)dismiss an application for an FVRO at a telephone hearing under s 23(1)(b) or at a first hearing conducted in the absence of the respondent under s 29(1)(b);
(2)make, vary or cancel a final order;
(3)refuse to make, vary or cancel a final order; or
(4)make any other order in relation to a final order.
Thirdly, if the general right of appeal under s 40 of the Magistrates Court (Civil Proceedings) Act encompasses proceedings under the Restraining Orders Act, there is no apparent need for, or purpose to be served by, the stipulation of the right of appeal under s 64 of the Restraining Orders Act. All of the species of decisions stipulated under s 64 of the Restraining Orders Act would be encompassed within s 40(1) of the Magistrates Court (Civil Proceedings) Act as orders made in the course of proceedings in the case or the judgment in the case.
Taken together, these considerations sustain the conclusion that:
(1)s 64 of the Restraining Orders Act regulates the scope of appeals under pt 7 of the Magistrates Court (Civil Proceedings) Act against decisions in proceedings under the Restraining Orders Act; and
(2)the legislature is to be taken to have exhaustively expressed in s 64(1) the decisions in proceedings under the Restraining Orders Act in respect of which a right of appeal under pt 7 of the Magistrates Court (Civil Proceedings) Act is conferred.
Fourthly, s 64 is enacted in a context in which decisions under the Restraining Orders Act may be made by a variety of courts. Section 64(1) makes provision as to the scope of the right of appeal it confers, applicable to all cases, regardless of the court in which the decision is made. Section 64 then proceeds to stipulate the procedure for such an appeal in a manner that varies with the identity of the court which made the decision the subject of the proposed appeal. The scheme and structure of s 64 suggests an intention to make uniform provision as to the scope of decisions under the Restraining Orders Act which are capable of being appealed, regardless of the court in which the decision is made. That counts in favour of construing s 64 as making exhaustive provision for appeals in proceedings under the Restraining Orders Act.
Fifthly, the construction we have adopted does not produce results which are inconsistent with the general objects of the Restraining Orders Act or which lack a discernible legal policy justification. The undesirable effect of appeals against interlocutory orders in delaying the final resolution of proceedings, and fragmenting proceedings with the attendant increased cost and inconvenience to the parties and the inefficient use of limited judicial resources, are well known and need not be elaborated.
In contrast to many other appeal provisions, leave is not required to appeal against an interlocutory decision in a case where s 40 of the Magistrates Court (Civil Proceedings) Act applies. It is understandable that Parliament would objectively intend to avoid the undesirable consequences of appeals from interlocutory orders by excluding appeals from decisions about interim orders made under the Restraining Orders Act. That approach also reduces the scope for an obstructive respondent to delay and add cost to proceedings under the Restraining Orders Act by instituting appeals as of right against decisions about interim orders.
Sixthly, consideration of the legislative history supports the construction in [82] above.
When the Restraining Orders Act was enacted, s 64 was, so far as material, in the following terms:
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)in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by a court of petty sessions, the appeal is to be made to the Supreme Court in accordance with Part VIII of the Justices Act 1902.
At the time when the Restraining Orders Act came into operation, pt VIII of the Justices Act contained the following provisions:
183.Definitions
In this Part unless the contrary intention appears -
…
'Court' means the Supreme Court constituted by one Judge and, where the Full Court has jurisdiction under this Part, includes the Full Court;
'Full Court' has the meaning assigned to it by section 4 of the Supreme Court Act 1935;
…
Right of appeal by leave
184.Right of appeal
(1)Subject to any other Act -
(a)an appeal lies to the Court, by leave as provided in this Part, from a decision of justices; but
(b)otherwise there is no appeal from such a decision.
(2)A decision that is declared by an Act to be final may not be the subject of an appeal under this Part.
(3)A decision by justices to commit a defendant for trial may not be the subject of an appeal under this Part.
185.Application for leave
(1)An application for leave to appeal may be made to a Judge in chambers or in Court.
(2)The application may be made by -
(a) any person who is aggrieved by the decision; or
(b) the Attorney General,
or by each of them, and shall be made ex parte unless the Judge orders that the application be served on any person.
(3)One application for leave to appeal may be made in respect of 2 or more decisions given at the same hearing, and the appeals for which leave is granted on any such application shall be consolidated unless, or except to the extent that, the Court otherwise orders.
Thus, when enacted, s 64 followed the same scheme as is apparent in its current form. It provided for a right to appeal a 'decision … in relation to a final order' to the Supreme Court in accordance with pt VIII of the Justices Act, that part making general provision for appeals to the Supreme Court from any decision of justices, with immaterial exceptions. In our view, like conclusions to those in [85] ‑ [87] above applied when s 64 was enacted.
The appellant sought to rely on the legislative history to explain why s 40 of the Magistrates Court (Civil Proceedings) Act encompasses the entirety of the scope of s 64 of the Restraining Orders Act. The appellant refers to s 184(2) of the Justices Act, at the time when the Restraining Orders Act came into operation, which provided that '[a] decision that is declared by an Act to be final may not be the subject of an appeal' (emphasis added) under pt VIII of that Act. The appellant then points to the inclusion, in s 64(1), of references to 'a final order' (emphasis added), submitting that s 64 evidently sought to avoid the effect of s 184(2) of the Justices Act by providing expressly for a right of appeal in relation to a final order made under the Restraining Orders Act. In this manner, she submitted, s 64 of the Restraining Orders Act did not limit, but rather, expanded or added to the right available under the Justices Act to appeal against decisions made in restraining order proceedings.[67]
[67] Appeal ts 30 - 31, 34.
This submission confuses and conflates two quite distinct contexts in which the word 'final' is used. The term 'final' in relation to a decision which may be the subject to an appeal is commonly used in two different senses:
(1)The term 'final' may be used to distinguish a decision which disposes of an application by finally determining the rights of the parties from an interlocutory or interim decision which does not have that effect.[68]
(2)The term 'final' may be used to identify a decision which is not subject to appeal, as opposed to a decision which is appellable.[69] This is the sense in which the word 'final' was used in s 184(2) of the Justices Act.
[68] As to the distinction between final and interlocutory decisions, see the discussion in CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [45] - [58].
[69] See Jackson v Chrisp [2012] WASCA 158 [58] - [61] applied in Komorowski v Ong [2019] WASCA 201; [2020] ALMD 1039 [9].
In the Restraining Orders Act, orders made at a final order hearing are defined as 'final orders'. Such orders are properly characterised as final in the sense explained at [97](1) above. That does not entail that the decision is 'declared … to be final' in the sense in which that phrase is used in s 184(2) of the Justices Act. That phrase encompasses the well‑recognised form of statutory provision, noted at [97](2) above, by which an Act states that a particular species of decision 'shall be final'. If the term 'final' in s 64 of the Restraining Orders Act was used in the sense noted at [97](2) above, it would indicate that there could be no appeal from decisions in relation to a final order. That is contrary to the evident purpose of s 64 to confer rights of appeal in relation to final orders. Thus, contrary to the appellant's submission, the legislative history does not explain the fact that, if applicable to decisions made in restraining order proceedings, the appeal rights under s 40 of the Magistrates Court (Civil Proceedings) Act would encompass all cases within s 64 of the Restraining Orders Act. As we have said, in our view, that fact, together with the matters in [85] and [86] above, sustain the conclusion in [82] above.
In 2004, the Restraining Orders Act was amended to reflect the creation of the Magistrates Court by the Magistrates Court Act and associated legislation. By the table to s 124 of the Courts Legislation Amendment and Repeal Act 2004 (WA), s 64(2) of the Restraining Orders Act was amended and a new subsection, subsection (6b), was added. Section 64 then read as follows:
(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)in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
(3)If the decision was made by the Children's Court when constituted so as not to consist of or include a Judge, the appeal is to be made to the Supreme Court in accordance with section 41 of the Children's Court of Western Australia Act 1988 as if the decision were a decision within the meaning of section 41(2) of that Act.
(4)If the decision was made by the Children's Court when constituted so as to consist of or include a Judge, the appeal is to be made to the Court of Appeal in accordance with section 43 (other than subsections (2) and (3)) of the Children's Court of Western Australia Act 1988 as if the decision were a decision within the meaning of section 43(3b) of that Act.
(5)If the decision was made by the District Court, the appeal is to be made to the Court of Appeal in accordance with section 79(1)(a) of the District Court of Western Australia Act 1969.
(6)If the decision was made by a Judge of the Supreme Court, the appeal is to be made to the Court of Appeal in accordance with section 58 of the Supreme Court Act 1935.
(6a)If the decision was made by a court hearing proceedings under the Family Court Act 1997 or the Family Law Act 1975 of the Commonwealth, the appeal is to be made -
(a)in the case of a decision of a court of summary jurisdiction, to the Family Court of Western Australia in accordance with section 211(2) of the Family Court Act 1997; and
(b)otherwise to the Court of Appeal of the Supreme Court in accordance with section 211(3) of the Family Court Act 1997.
(6b)If -
(a)the decision was made under section 63(1) to make a restraining order against a person charged with an offence;
(b)the person charged is convicted of that or another offence; and
(c)the person charged appeals against the conviction or the sentence imposed,
any appeal under subsection (1) by the person charged against the decision is to be made to the court that hears and determines the appeal against the conviction or sentence.
In 2016, s 64(1) was amended to replace s 64(1)(b). By s 73 of the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA), s 64(1) was amended to reflect its current form, as set out in [47] above.
The Explanatory Memorandum[70] refers to the amendment to s 64 as follows:
[70] Explanatory Memorandum (Legislative Council), Restraining Orders and Related Legislation Amendment Bill 2016 (WA) 1.
Clause 73
Section 64 amended
This clause amends section 64 (Appeals). The primary purpose of this amendment is to ensure that a decision of a court to refuse to make a final order may be appealed in accordance with section 64. This addresses an issue that was brought to light in the Supreme Court decision in BV (on behalf of M, N and O) v TP [2016] WASC 228. In that case, the Court indicated that the existing (unamended) wording of section 64(1) paragraph (b), 'a decision in relation to a final order', does not include a decision not to make such an order. The amendment also seeks to minimise the risk of any further uncertainty by providing a more prescriptive account of the decisions that may be appealed. (original emphasis)
This amendment is an indication, reinforced by the explanatory memorandum, that the legislature proceeded on the basis that s 64 of the Restraining Orders Act exhaustively states the scope of decisions under that Act that may be the subject of an appeal. If proceedings under the Restraining Orders Act fall within the ambit of s 40(1) of the Magistrates Court (Civil Proceedings) Act, there would have been no need to amend s 64 in this manner. That is because a decision to refuse to make a final order would be within the ambit of s 40 of the Magistrates Court (Civil Proceedings) Act and so able to be appealed under that provision.
For these reasons, in our view, when the Restraining Orders Act and the Magistrates Court (Civil Proceedings) Act are read as a whole and in their relevant context, s 64(1) must be taken as exhaustively stating the scope of decisions under the Restraining Orders Act which may be the subject of an appeal.
This conclusion is consistent with the conclusions reached in PAR v JLT; Armstrong v Saxby[71] and Lovelady v Griffiths.[72]
[71] Armstrong v Saxby [2016] WADC 87; (2016) 90 SR (WA) 1.
[72] Lovelady v Griffiths [2018] WADC 180; (2018) 96 SR (WA) 108 [20], [29].
This conclusion does not mean that a decision of a magistrate in Restraining Orders Act proceedings that does not fall within s 64 of the Restraining Orders Act is entirely free of any review. Section 36 of the Magistrates Court Act empowers a person who is aggrieved by a decision of the Magistrates Court to apply to have the decision judicially reviewed by the Supreme Court. Such a review is concerned solely with the legality of the decision, and is not a review or appeal on the merits.[73] Such a review is capable of encompassing a complaint of the kind referred to in the appellant's submission summarised in [71] above, namely breach of procedural fairness or failure to comply with requirements of the legislation.
[73] Rayney v AW [2009] WASCA 203 [25] - [27].
In her submissions to this court, the appellant referred to the court's power under s 36 of the Magistrates Court Act.[74] This court has no jurisdiction to determine any such application which, in any event, is not presently before this court. Any application of that nature must be made in separate proceedings instituted in the General Division of this court.
[74] Appellant's submissions [112] - [113]; appeal ts 51.
For these reasons, the appellant's first argument fails.
The appellant's second argument: basis of the impugned decision
The appellant's second argument can be dealt with more briefly.
In cancelling the interim FVRO, the magistrate was exercising power under s 49 of the Restraining Orders Act. That the magistrate exercised the power notwithstanding the absence of compliance with the formal requirements of s 45 does not alter or undermine that proposition. The subject matter of the appeal is properly characterised as the decision to cancel the interim order, not the decision to dispense with the formal requirements. The dispensing with the formal requirements is a step in the reasoning that is impugned by a ground of appeal ‑ it is not the subject matter of the appeal.
The same reasoning applies to the magistrate's failure (as alleged by the appellant and found by the primary judge) to comply with s 49B and s 10F of the Restraining Orders Act. The subject matter of the appeal is properly characterised as the decision to cancel the interim FVRO.
For these reasons, the appellant's second argument fails at its first step. Consequently there is no need to say anything as to the correctness of the second step.
Disposition of the jurisdictional question: section 64 of the Restraining Orders Act
We turn to the appellant's third and fourth arguments, which each contend that the District Court had jurisdiction to hear the appellant's appeal by virtue of s 64 of the Restraining Orders Act.
The appellant's third argument: effect of the decision made on 23 April 2020
Why the appellant's third argument fails - summary
The appellant's appeal to the District Court the subject of this appeal is her appeal against the magistrate's decision on 23 April 2020 to cancel the interim FVRO.
As already noted, by her third argument, the appellant asserts that the effect of the magistrate's orders of 23 April 2020 was to dismiss her application for a final FVRO. Having regard to the way the proceedings in the Magistrates Court progressed after the orders were made on 23 April 2020, it is entirely understandable that the appellant would hold that view as to the effect of the orders. It was a view that was expressed to her by a number of magistrates, and one that was advanced by counsel for the respondent in the Magistrates Court proceedings. However, as explained below, those views do not reflect the legal effect of the orders that were actually made.
The appellant's appeal to the District Court, which she instituted on 10 June 2020, challenged the cancellation of the interim FVRO by the order of 23 April 2020. The transcript of 23 April 2020, the magistrate's handwritten record of proceedings on that day, and the formal Notification of Cancellation of Restraining Order, issued on 27 May 2020, all indicate and conclusively demonstrate that on 23 April 2020:
(1)the interim FVRO made on 13 May 2019 was cancelled; and
(2)no order was made 'cancelling' or dismissing the substantive FVRO application (see [21] ‑ [23] and [27] above).
The transcript and handwritten record of proceedings record that the interim FVRO was cancelled and that the substantive application was adjourned to 26 May 2020. The operative part of the notification of cancellation of restraining order is in the following terms:
Please be advised that the restraining order granted on the date shown above was cancelled by the court on the date shown below.
The Restraining Order is no longer in force.
Contrary to the appellant's submissions,[75] the notification does not indicate that the application for a restraining order had been dismissed.
[75] Appeal ts 28.
In one sense that is sufficient to dispose of the appellant's third argument. However, it is appropriate to say something more as to why the argument fails. In doing so, we will outline the subsequent course of proceedings in the Magistrates Court, as it explains why the appellant understands the effect of the order to be as she does.
Hearing on 29 July 2020
The matter came on for hearing on 29 July 2020 before the magistrate who had, on 23 April 2020, cancelled the appellant's interim FVRO. By then, the appellant's first appeal to the District Court, against an order made by the magistrate on 11 November 2019 setting aside a summons to produce documents, had been allowed.[76] She had, by then, also instituted the second appeal to the District Court against the orders of 23 April 2020. The magistrate said that the first appeal decision was 'a little bit of a pyrrhic victory for you … [w]hen the order was cancelled by me on your request in March [sic].'[77] The appellant made submissions to the effect that the substantive application remained on foot.[78] The following exchange occurred in the course of those submissions:[79]
HIS HONOUR: But anyway, I know that you're probably not going to listen to me and make a note of this, but do you see if there's any merit in your proceeding with these proceedings in the Magistrates Court?
[APPELLANT]: I just ‑ your Honour, I would have loved this to be settled a year ago.
HIS HONOUR: Well, you actually did so in March.
[APPELLANT]: But that was by cancelling it, your Honour, I would like a conduct agreement or an FVRO.
HIS HONOUR: Yes, okay. Well, that's no doubt going to be considered by a judge over the road on that appeal. Noting that it was your wish to discontinue.
[76] KSJ v GJA [2020] WADC 96.
[77] Magistrates Court 29 July 2020, ts 3.
[78] Magistrates Court 29 July 2020, ts 3, 6.
[79] Magistrates Court 29 July 2020, ts 5 - 6.
The magistrate indicated that it was probably not appropriate for him to involve himself further 'in what was left of the application, which is a cost[s] determination'.[80] His Honour adjourned the matter to 14 October 2020:[81]
HIS HONOUR: … either for, depending on the outcome over the road, for costs in this matter to be determined, because there's an outstanding costs claim by the respondent against you.
[APPELLANT]: I understand, your Honour.
HIS HONOUR: Or if this file is resurrected from the grave the matter will be listed, no doubt, sometime in the future for a final order hearing.
[APPELLANT]: That's what I anticipate happening, your Honour.
[80] Magistrates Court 29 July 2020, ts 6.
[81] Magistrates Court 29 July 2020, ts 8.
The magistrate's comments on 29 July 2020 indicate a subjective understanding on his Honour's part that his orders of 23 April 2020 had disposed of the substance of the FVRO application and all that remained was to deal with the question of costs, subject to the order of 23 April 2020 being overturned on appeal. However, the legal effect of the orders is to be judged objectively and not by reference to what the magistrate subjectively understood the effect of his orders to be.
Hearing on 14 October 2020
The matter came on before a different magistrate on 14 October 2020. At the beginning of the hearing, that magistrate expressed his understanding of the record of 23 April 2020, indicating to the appellant that:[82]
it was your application to discontinue the application for the restraining order and that it was your application to cancel that restraining order and that was granted.
[82] Magistrates Court 14 October 2020, ts 2.
The appellant responded that the magistrate on 23 April 2020 did not grant the cancellation of the application, but was told by the magistrate 'that's how it has been recorded'.[83]
[83] Magistrates Court 14 October 2020, ts 2.
Later in the hearing, the magistrate asked counsel for the respondent whether he agreed that the application for the restraining order was still on foot. Counsel responded:[84]
The application for the restraining order has been cancelled, as far as we're concerned. There's an appeal before the District Court. The District Court will make that decision. (emphasis added)
[84] Magistrates Court 14 October 2020, ts 9.
The magistrate expressed the view that, if the District Court ruled against the appellant in the yet to be determined appeal, 'then I think there will be no application on foot'.[85] The magistrate made the following decision:[86]
All right. So I'm going to call it a matter. The matter is adjourned for a mention only hearing on 18 November. I've recorded that there's a District Court appeal on foot, that the previous order was purportedly cancelled, and the application was purportedly withdrawn by the applicant on 23 April 2020, the applicant is appealing the decisions that were made on 23 April 2020, and that the District Court decision is likely before the next court date. There will be a summons to issue to both parties. Back for mention on 18 November. (emphasis added)
[85] Magistrates Court 14 October 2020, ts 9.
[86] Magistrates Court 14 October 2020, ts 11.
Again, the magistrate appears to have subjectively understood: (i) that the effect of the orders of 23 April 2020 was twofold - to cancel the interim order and to withdraw the substantive application; and, further (ii) that the appeal to the District Court challenged both decisions. As already explained, that does not reflect the correct position as objectively determined based on the record.
Application to vary or cancel a restraining order on 9 November 2020
On 9 November 2020, the appellant filed a 'Restraining Order Application to Vary or Cancel' in which she asked that the interim FVRO be reinstated. That was the same day on which the primary judge dismissed the appellant's second appeal to the District Court for want of jurisdiction.
Hearing on 18 November 2020
On 18 November 2020, the appellant appeared before a third magistrate, and asked that the matter be listed for a final order hearing.[87] The following exchange occurred between the magistrate and the appellant:[88]
[87] Magistrates Court 18 November 2020, ts 4.
[88] Magistrates Court 18 November 2020, ts 5 - 6.
HIS HONOUR: But I don't have any jurisdiction for a final order hearing.
[APPELLANT]: Yes, you do, your Honour.
HIS HONOUR: No, with great respect, Ms [appellant], I don't because your application as it currently stands has been cancelled.
[APPELLANT]: No, it hasn't, your Honour.
HIS HONOUR: It has.
[APPELLANT]: It absolutely hasn't. If the Magistrates Court have made multiple errors, you are going against ‑ and I guess it's up to you if your Honour is going to go against the recommendation of a District Court judge and a finding of a District Court judge. But the application is still on foot and it needs to be listed for a final order hearing.
HIS HONOUR: Is there any ‑ whilst I disagree, is there any reason it can't be a listed for a final order hearing on 1 December, given that - - -
[APPELLANT]: Yes, your Honour. We need at least two weeks to prepare for subpoenas and materials. So, no, it can't be listed on 1 December, your Honour.
HIS HONOUR: What am I listing for a final order hearing if there's no interim order in place?
[APPELLANT]: The application for a family violence restraining order, your Honour.
HIS HONOUR: No. But there is no order in place. There's no interim order in place presently.
[APPELLANT]: If you're telling me that the Magistrates Court has compounded their original error and cancelled the underlying application as well - - -
HIS HONOUR: Well, that's exactly what happened and that was the basis of your appeal to the District Court.
[APPELLANT]: Yes. And the District Court judge found that the application is still on foot.
HIS HONOUR: The District Court ‑ no, the District Court judge found, with respect, that he had no jurisdiction to interfere with that order. That's what he said.
[APPELLANT]: With respect, your Honour, may I read to you paragraph 43?
HIS HONOUR: Yes.
[APPELLANT]:
Significantly, the learned magistrate did not make a final order dismissing the appellant's application for an FVRO.
Do I need to go on?
HIS HONOUR: Yes, you do.
[APPELLANT]: Really?
HIS HONOUR: And you can cut the attitude, too, thanks, Ms [appellant], because - - -
[APPELLANT]: I will just leave it.
HIS HONOUR: - - - I'm here just trying to do my job. (emphasis added)
The magistrate then asked the appellant how many witnesses she planned to call at the final order hearing. The following exchange occurred:[89]
[89] Magistrates Court 18 November 2020, ts 7.
HIS HONOUR: How many witnesses are you going to call at the final order hearing, Ms [appellant]?
[APPELLANT]: Does your Honour now have a different opinion as to - - -
HIS HONOUR: I have. Yes, I do.
[APPELLANT]: Is ‑ are you going to recall the comments about saying that I've got attitude or that I am wrong?
HIS HONOUR: No, I'm not.
[APPELLANT]: Right. Okay.
HIS HONOUR: Thanks.
[APPELLANT]: So it's not customary for a magistrate to apologise when they're wrong?
HIS HONOUR: Well, no, because I don't believe I was wrong in the tone that you sought to address me. All I asked you to do was to point me to the relevant paragraph and I'm not going to apologise. Would you like to answer the question as to how many witnesses do you intend to call?
When the magistrate indicated that he was going to list the matter for a final order hearing, counsel for the respondent indicated:[90]
Your Honour, save for the fact that I believe there was no jurisdiction and the order stands, and I do have problems with the final order hearing, I think that will be the smartest, fastest way to resolve this matter.
[90] Magistrates Court 18 November 2020, ts 8.
The magistrate ultimately made orders in the following terms:[91]
What I'm going to do is I'm going to adjourn these proceedings to 1 December for the hearing of [the appellant's] application for reinstatement of the interim order. I will otherwise adjourn the proceedings to a trial allocation date on 10 February 2021 at 9.30 am. There's leave to issue subpoenas to the WAPD and the Department of Communities. Those subpoenas can be returnable on 10 February 2021 at the trial allocation date.
[91] Magistrates Court 18 November 2020, ts 16 - 17.
It appears from the above passages that having initially expressed ‑ in strong terms - disagreement with the appellant's position, the magistrate ultimately accepted that the application for an FVRO had not been dismissed, and listed the matter for trial allocation.
Hearing on 1 December 2020
The appellant's application to reinstate the interim FVRO was heard by a further different magistrate on 1 December 2020. The application was dismissed on the basis that, while there was an underlying application for a restraining order, there was no interim FVRO to be varied or cancelled.[92]
Subsequent hearings
[92] Magistrates Court 1 December 2020, ts 2 - 5.
There is no transcript of the trial allocation date hearing on 10 February 2021. However, a record of proceedings indicated that tentative trial dates of 17 - 19 March 2019 were allocated. The record indicates that those tentative dates were subsequently vacated due to the unavailability of the appellant's lawyer. On 23 February 2021, the trial allocation date was adjourned to 2 June 2021. The matter remains listed for a trial allocation date at that time.
Third argument: conclusion
The above account shows that a number of magistrates (including the magistrate who made the orders) and the respondent's counsel misunderstood the position as being that the application for a restraining order had been dismissed on 23 April 2020, or that the cancellation of the interim FVRO on that date had the effect of dismissing the underlying application. It is regrettable that, on occasion, comments were addressed to the appellant, a self‑represented litigant in proceedings involving allegations of family violence, in dismissive terms concerning a matter in respect of which the appellant was correct. That should not have occurred.
In the circumstances, the appellant's evident frustration at being, as she put it, 'stuck between two jurisdictions'[93] taking conflicting views of the status of her substantive FVRO application of 13 May 2019 is quite understandable. However, in the end, the Magistrates Court came to accept the position identified by the primary judge that the application remained on foot. As matters stand, the application is to be listed for final determination. What is listed is the application filed on 13 May 2019.
[93] Appeal ts 26 ‑ 27.
Contrary to the appellant's oral submissions at the hearing of this appeal, the Magistrates Court is not in the process of listing the 'Restraining Order Application to Vary or Cancel' filed on 9 November 2020 for hearing. That application was dismissed on 1 December 2020, on the basis that while the underlying application remained on foot, there was no interim FVRO to vary or cancel, as the interim FVRO had been cancelled on 23 April 2020.
The objective legal effect of the orders of 23 April 2020 is as set out in [115] above. The primary judge correctly apprehended the objective legal effect of those orders, and the position has now been accepted by the Magistrates Court. The application filed on 13 May 2019 remains on foot and is anticipated to be listed for hearing at a trial allocation date on 2 June 2021. The orders made on 23 April 2020 were not a refusal to make a final order for the purposes of s 64(1)(b)(ii) of the Restraining Orders Act. That provision does not operate to confer on the appellant a right to appeal against the orders actually made on 23 April 2020.
For these reasons the appellant's third argument fails.
The appellant's fourth argument: 'in relation to' a final order
The appellant's fourth argument is that the magistrate's order cancelling the interim FVRO was a decision made 'in relation to' a final order. We accept that the phrase 'in relation to' is an expression of broad import. In O'Grady v The Northern Queensland Co Ltd the court said as follows:[94]
The prepositional phrase 'in relation to' is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
[94] O'Grady v The Northern Queensland Co Ltd (376).
The phrase must, of course, be construed in its context, by reading the provision in which the phrase is used as a whole. Two aspects of the context seem to us to be important. First, the phrase requires the 'other order' to be in relation to a final order, not in relation to an application for a final order. Secondly, the phrase 'any other order in relation to a final order' is found in s 64(1)(b)(iii). That is to be read with subparagraphs (i) and (ii) of s 64(1)(b).
Reading subparagraph (iii) in its context, its language most naturally refers to a situation where a final order has been made and an 'other order' is made that is connected to, or affects, the operation, enforcement or consequences of the final order. Of course, in the present case, no final order had been made.
An order 'in relation to a final order' may also encompass an order that is connected to, or affects, the question of whether a final order should be made in circumstances where no final order has been made. For present purposes, it may be assumed, favourably to the appellant, that it does so.
Where, as here, the respondent objects to a final order being made, the presence of, or cancellation of, an interim FVRO is neither necessary for, nor, subject to one qualification, a mandatory consideration in, a decision whether to grant an FVRO at a final hearing. The qualification is that if the respondent does not attend the final order hearing and an earlier restraining order is in force, the court is to make a final order in the same terms as the earlier order unless the appellant raises a new ground or matter at the final order hearing.[95] Subject to that qualification, regardless of whether an interim order is in place, in considering whether to make an FVRO and the terms of any such order, the court must have regard to the matters stipulated in s 10F(1), with the matters in par (a), par (b) and par (c) of s 10F(1) being of primary importance.
[95] Restraining Orders Act, s 42.
Thus, in the present case, the decision to cancel the interim FVRO did not:
(1)alter the appellant's right to a final order hearing to determine her substantive application for a final FVRO; or
(2)affect the considerations to which the magistrate was required to have regard in deciding whether to grant an FVRO at the final order hearing, unless the respondent, who was legally represented in the proceedings, had failed to appear at the final order hearing.
For the above reasons, we are not persuaded that the decision to cancel the interim order has any identifiable connection to, or relation with, the appellant's application for a final order sufficient to support the characterisation of the cancellation of the interim FVRO as an 'order in relation to a final order' within the meaning of s 64(1)(b)(iii). The appellant's fourth argument fails.
For these reasons, in our view, the District Court did not have jurisdiction to hear the appellant's appeal in this case by virtue of s 64 of the Restraining Orders Act.
Conclusion
For the above reasons, the primary judge was correct to conclude that the appeal to the District Court was incompetent. Consequently, the appeal to this court must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Beech
31 MAY 2021
4