Leigh v Sanchez
[2025] WADC 53
•29 AUGUST 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LEIGH -v- SANCHEZ [2025] WADC 53
CORAM: ZEMPILAS DCJ
HEARD: 24 APRIL & 30 JULY 2025
DELIVERED : 29 AUGUST 2025
FILE NO/S: APP 53 of 2024
BETWEEN: TRACY LEIGH
Appellant
AND
LOUIS PHILIPPE SANCHEZ
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE ANDRETICH
File Number : MAJ/RO/12/2023
Catchwords:
Restraining Orders Act 1997 (WA) - Error of law - Granting an interim violence restraining order on application for misconduct restraining order - Programming orders - Appellant did not comply - Interim violence restraining order cancelled without final order hearing - Procedural fairness
Legislation:
Criminal Procedure Act 2004 (WA), s 98, s 133(3)
Evidence Act 1906 (WA), s 31A
Result:
Application to amend grounds of appeal granted
Appeal allowed
Appellant's application for a misconduct restraining order dated 14 April 2023 is remitted to the Magistrates Court at Perth for a final order hearing to be fixed pursuant to s 41(4) of the Restraining Orders Act 1997 (WA)
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J Levine |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Matrix Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
KSJ v GJA [2021] WASCA 98
ZEMPILAS DCJ:
Introduction
This appeal concerns the decision of a magistrate to cancel an interim violence restraining order (IVRO) without proceeding to a final order hearing (FOH). The IVRO was initially granted by the magistrate following an application by the appellant for a misconduct restraining order (MRO) against the respondent.
The magistrate's decision to cancel the IVRO (magistrate's second decision) was made pursuant to s 19 Magistrates Court (Civil Proceedings) Act2004 (WA) (MCCPA) on the basis there had been non-compliance by the appellant with programming orders made by the court ahead of the FOH listed to commence the following week.
The appellant says she was denied procedural fairness in the circumstances or that the magistrate gave insufficient weight to considerations in her favour and excessive weight to considerations in the respondent's favour in making the decision.
Following the first hearing of the appeal, I raised with the parties whether the decision by the magistrate to grant the IVRO on an application for a MRO amounted to an error of law (magistrate's first decision).
During a subsequent hearing, the appellant applied for leave to amend the grounds of appeal to include this ground.
If leave is granted, the appeal is to proceed on the basis that there has been an appellable error of law in respect of either the magistrate's first or second decision.
Background and magistrate's first decision
On 14 April 2023, the appellant applied for a MRO against the respondent. The application details included allegations of cyber abuse and stalking by the respondent against the appellant since 2016. In associated proceedings, the appellant had commenced a defamation action in Queensland in 2018 against the respondent on the basis of similar allegations.
The respondent was advised of the application and the matter listed on 13 July 2023 for a MRO mention hearing.[1] Ahead of that date, on 6 June 2023, the appellant lodged a submission, outlining further details in respect of her allegations.
[1] Form 25 - General Order dated 8 June 2023.
On 13 July 2023, at the instigation of and before the magistrate, the appellant was sworn in to provide evidence in support of her application. The appellant was self‑represented on that date and has been throughout these proceedings. The respondent has always been represented by counsel.
In answer to questions put by the magistrate, and under affirmation, the appellant essentially adopted the description of events that had been outlined in her written application and submission.
The magistrate then, purportedly pursuant to the Restraining Orders Act 1997 (WA) (Act), changed the application from a MRO to a violence restraining order (VRO) on the basis of the evidence she had heard. The magistrate granted an IVRO on that date, and she said:[2]
… but as it stands I am satisfied under the criteria that I have to be satisfied under, having read the documents and having read - heard what Ms Leigh has said, that it does fall within the definition of personal violence, stalking behaviour, and I'm going to grant the application on that basis.
[2] Magistrates Court transcript (MC ts) (13 July 2023), MC ts 4 (13 July 2023).
The respondent's counsel did not dispute the magistrate's authority to do so, and the matter was concluded on the basis that, if the respondent subsequently filed an objection to the IVRO, the matter would be listed on a date to be determined by the court.[3]
[3] MC ts 7 (13 July 2023).
On 21 August 2023 the respondent lodged an objection to the IVRO. On 31 August 2023, 22 September 2023 and 12 October 2023 there were appearances in respect of the IVRO, including an application to make some minor variations to the wording. On 30 November 2023, the matter was adjourned to a final order directions hearing on 25 January 2024, pending some attempts at mediation.
On 25 January 2024 at a final order directions hearing, a 2‑day FOH was listed, to commence on 19 March 2024. The magistrate made the following programming orders:
1.On or before 16 February 2024 the appellant to file and serve any affidavits upon which she intended to rely at the hearing, those affidavits to stand as the witnesses' evidence‑in‑chief.
2.On or before 1 March 2024 the respondent to file and serve any affidavits upon which he intended to rely at the hearing, which would stand as the witnesses' evidence‑in‑chief.
3.On or before 8 March 2024 both parties to advise the court of the names and details of witnesses proposed to give their evidence by Microsoft Teams.
4.On or before 15 March 2024 both parties to file a list of documents upon which they intended to rely.[4]
[4] The documents were not required to be attached, just listed with a brief summary of what each document contained; MC ts 8 (25 January 2024).
The magistrate indicated that these orders were made in an attempt to truncate the length of the trial, so that arrangements could be made for witnesses to appear by audiovisual link (AVL) if required and so that the court could have an opportunity to see the affidavits of the proposed witnesses ahead of time to determine whether the evidence was admissible.[5]
[5] MC ts 8 (25 January 2024).
On 6 February 2024 the appellant lodged an application to vacate the FOH listed on 19 March 2024 on the basis that she had had insufficient time to comply with the programming orders, and that she had some logistical difficulties in attending the hearing over those dates, primarily due to the unavailability of her disability support person.
On 23 February 2024 the appellant lodged the affidavit of Timothy Patrick Kennedy with exhibits annexed.
On 29 February 2024 the magistrate heard the appellant's application to vacate the FOH. The respondent told the court that they had also been unable to comply with the programming orders and did not oppose the application. The magistrate granted the application and vacated the hearing dates.
The magistrate made further programming orders on that date:
1.Trial dates listed for 19 and 20 March 2024 in Bunbury Magistrates Court are vacated.
2.The orders made on 25 January 2024 are replaced by the following orders.
3.Adjourned to 29 July 2024 at 9.30 am at Bunbury Magistrates Court for a 3 day FOH (29 to 31 July 2024).
4.Leave granted to the Respondent to vacate the FOH dates in the event he is not available on those dates provided the court is satisfied that the reason he is not available is legitimate.
5.Both the Person Protected and Respondent are to appear in person at the FOH.
6.Leave is granted for the Person Protected to have lunch breaks of 1 1/2 hours in the course of the FOH.
7.On or before 30 March 2024 the Person Protected is to file and serve any affidavits upon which she intends to rely at the FOH. Those affidavits will stand as the evidence in chief of each witness (if that evidence is relevant and admissible)
8.On or before 30 April 2024 the Respondent is to file and serve any affidavits upon which he intends to rely at the FOH. Those affidavits will stand as the evidence in chief of each witness (if that evidence is relevant and admissible)
9.On or before 7 May 2024 both parties to apply to the court in writing seeking leave for any witnesses they intend to rely upon at trial to give evidence by Microsoft Teams (excluding the Person Protected and the Respondent) with contact details for each witness.
10.Any witness to appear by Microsoft Teams must be provided with a paginated and indexed list of documents which it is intended that they be directed in giving evidence and those documents are to be contained in a sealed envelope.
11.On or before 1 June 2024 both parties are to share their documents by way of drop box as agreed and the parties are to communicate the details of the drop box to be utilised well in advance.
12.On or before 21 June 2024 both parties may file brief affidavits in response, if considered necessary.
13.On or before 5 July 2024 both parties to file and serve a list of documents upon which they intend to rely at the FOH with a BRIEF summary of the content of each document.
14.Notice to issue to both parties.
15.Costs reserved.
On 5 April 2024 the appellant lodged the affidavit of Paul Elbourne with exhibits annexed.
On 8 April 2024 the respondent's solicitors filed an application in Queensland to strike out the appellant's defamation action as well as for an injunction to prevent her proceeding with the restraining order application in Western Australia.
On 9 April 2024 the appellant lodged her own affidavit which affirmed her previously filed submissions and evidence in respect of the application for the MRO.
On 10 May 2024 the respondent's solicitor lodged an affidavit on behalf of Mr Sanchez.
On 15 May 2024 the respondent's application in the Queensland defamation action had its first hearing.
On 17 May 2024 the respondent's solicitors lodged the affidavit of John Flahive on behalf of the respondent.
On 14 June 2024 there was a further hearing in the Queensland defamation action at which the respondent's applications to strike out and for the injunction were both dismissed.
On 20 June 2024 the appellant wrote to the Magistrates Court advising that the parties had not complied with the orders dated 29 February 2024. The email stated:
Dear Registrar,
I refer to the orders of 29 February 2024 (the Orders).
Mr Sanchez filed an application in the District Court of Queensland on 8 April 2024 to strike out my defamation claim and have an injunction against the VRO trial proceeding. He served the application on 16 April 2024.
This led to two months of additional work that was not planned at the time of the Orders, particularly for me as I was self represented at the second hearing on 14 June 2024.
Neither party has exchanged documents as per Order 11.
I have an affidavit in reply to file and I have a further witness to file an affidavit in reply. My further witness has been incapacitated recently due to medical issues. I anticipate having both affidavits available no later than the end of next week.
I will liase with Mr Stanarevic regarding the sharing of documents and advise the court when it is reasonable for both parties to complete that step.
I don't believe that the final timeline has been compromised as we are still well in advance of the 29 July 2024 hearing dates.
best wishes
Tracy
This email was not brought to the attention of the magistrate but remained on the electronic court file.
On 30 June 2024 the appellant sent an email to the respondent's lawyers, Matrix Legal. The email said as follows:
Mark,
Firstly, I am advising you that I require Mr John Flahive to attend the trial for cross‑examination on his affidavit.
I may cross‑examine Phil Sanchez but I'm not sure yet. As he has been ordered to attend, I will make that decision closer to the trial.
I will have a witness affidavit in reply, along with an additional affidavit from me, filed and served this week. My witness has been unwell and as you know, I have been somewhat occupied with the application in Brisbane and recovering from that.
We both need to share the documents we will be relying on.
When can I expect that from you?
We need to provide the court a list by 5 July although I can't see a problem with requesting an additional week to do that if we both agree.
Tracy
On 3 July 2024 Mark Stanarevic of Matrix Legal sent the following response to the appellant:
Dear Ms Leigh
Apologies for the delay. I suggest we do the exchange Thursday next week.
I have notified Mr Flahavine [sic] of his requirement for cross‑examination.
Regards,
Mark Stanarevic
The Thursday following the 3 July 2024 would have been 11 July 2024.
Ms Leigh responded later the same day and said the following:
Mark,
Considering you just filed an application to strike out the entirety of my defamation claim amendments, to be heard on 12 July 2024, I expect to be somewhat tied up next week.
It may need to be early the following week.
Tracy
The date then suggested by the appellant would have been 15 or 16 July 2024.
The appellant sent a further email to the respondent's solicitors on 12 July 2024 attaching the affidavit of a further witness, Sharon Bowen, in response to Mr Flahive's affidavit. She further stated, 'I hope to get my affidavit in reply finished over the weekend now that the hearings in the other Sanchez matter are on hold for two weeks'.
On 15 July 2024 the appellant sent a further email to the respondent's solicitor. It said as follows:
Mark,
An update on where I am so that we get to the trial on 29 July properly organised.
I will file and serve my affidavit in reply on Wednesday.
When are you planning on uploading the documents you are going to rely on other than the affidavits?
I will be relying on material that your client is already familiar with, including all the previous submissions and attachments, the filed affidavits and screenshots of your client's derogatory publications over the past 7 1/2 years.
We also need to collaborate on a trial plan to put to Magistrate Andretich.
I think we need to each have a short opening address to clearly define the facts and issues.
As it is my application I will call my witnesses first. I have three witnesses so I expect that will take most of Monday 29th.
Please let me know if you will be calling me to be cross‑examined, preferably by Monday next week so I can prepare.
…
If there is anything else, please include it in an email in reply.
Tracy
On 16 July 2024 the respondent's application to strike out the appellant's further amended statement of claim in the Queensland defamation action was listed at the respondent's request for hearing in Brisbane on 25 July 2024. The appellant had sought that it be listed in August 2024, after the FOH.
On 17 July 2024 at 10.45 am the appellant sent an email to the respondent's barrister, Mr Levine. It stated:
Jeffery,
I am receiving no communication from Mark and we are now just over a week away from the trial.
Have you received the served affidavits, particularly the affidavit of Sharon Bowen? I am still working on my affidavit in reply, as Mr Sanchez's affidavit is quite extensive and I have been somewhat tied up on your client's applications in my defamation claim.
We need to liaise properly so that we run the trial efficiently, if it is to go ahead in light of the affidavit of Sharon Bowen and my correspondence to Mark about that (see below emails).
…
Can you please with some urgency whether your client intends to continue to trial, and if so, advise which if any of my witnesses, including myself, you will seek to cross‑examine on their affidavits so I can inform them and the court. I don't believe I have had any correspondence to that event to date.
Can you also answer my questions in the email below.
Tracy
The questions referred to by the appellant were those put forward in her email to Matrix Legal on 15 July 2024.
On the same date, 17 July 2024 at 1.40 pm Mark Stanarevic emailed the Magistrates Court and appellant and said the following:
Dear Registry and Ms Leigh
We refer to Ms Leigh's email below and disagree that the timeframe is still suitable to proceed to trial. We attach by way of service the respondent's application and ask if the matter can be heard by AVL on 29 July 2024 and the trial be vacated or alternatively a day next week prior to the trial date.
Regards,
Mark Stanarevic
The appellant's email referred to by Mr Stanarevic was the one she had sent to the court dated 20 June 2024.
The Form 23 application lodged by the respondent was seeking that the court make the following orders:
1)That the Violence Misconduct proceeding is dismissed or alternatively, for a springing order that the protected person comply with all of her obligations pursuant to the February Orders and that the final hearing on 29 July 2024 is adjourned with costs.
2)That the Respondent's lawyer can appear by AVL for this application.
3)If the matter is not dismissed, that the Respondent can appear by AVL for the trial.
This application was accompanied by an affidavit of the respondent. The affidavit stated the respondent was unable to comply with the programming orders made on 29 February 2024 because the time for compliance had passed and because of late compliance with the orders by the appellant. The respondent stated that he was not in a position to know the basis of the case being made against him.[6]
[6] Affidavit of Louis Philippe Sanchez affirmed 17 July 2024, pars 4 - 6.
The respondent also indicated that he would be unable to attend the FOH in person because of carer responsibilities and attached a medical certificate to that effect. The medical certificate was dated 16 April 2024 and indicated that the respondent would be unable to leave his wife, for whom he had carer responsibilities, for three days to attend a court hearing in Western Australia.[7]
[7] LPS-3 annexed to affidavit of Louis Philippe Sanchez affirmed 17 July 2024.
On 19 July 2024 the appellant lodged her affidavit in response to the respondent's affidavit.
On 21 July 2024 the appellant uploaded documents to the shared Dropbox.
The respondent's Form 23 application was heard on 22 July 2024.
Magistrate's second decision
At the hearing of the respondent's application on 22 July 2024, the magistrate commenced by saying:
HER HONOUR: Sorry. In light of what you say in the emails, Mr Levine, are you asking for the restraining order to be cancelled?
LEVINE, MR: Yes, your Honour. But there are obviously a range of orders that your Honour can make. But we would be asking for it to be cancelled.
In support of his application, Mr Levine said the following:[8]
LEVINE, MR: … There has been non‑compliance with the orders, gross non-compliance, by Ms Leigh. There was an attempt to have an exchange of documents on 30 June by my instructing solicitor, but that was refused. We emailed - - -
LEIGH, MS: That's not correct. That is not correct.
HER HONOUR: Ms Leigh. Ms Leigh - - -
LEIGH, MS: Stop lying.
HER HONOUR: Ms Leigh, don't interrupt, and don't talk over, please. You've had an opportunity to put your position. The way things operate in this court is one person talks, the other one responds. and I will come back to you if I think I need to hear any further from you. But you don't interrupt while the other person is speaking, please.
[8] MC ts 4, MC ts 5 (22 July 2024).
Mr Levine then read from the appellant's email to Matrix Legal dated 30 June 2024 and recited the respondent's lawyers' response on 3 July 2024 suggesting that they do the exchange on Thursday of the following week. Mr Levine partially read the appellant's response of the same date, ending with, 'I expect to be somewhat tied up next week'.[9]
[9] MC ts 6 (22 July 2024).
He then said:[10]
In relation to the sharing of documents, she's the applicant. It's primarily her duty to share the documents. And at the very least, there could have been an exchange, but she didn't agree - my submission is that she said she was unable to agree, or she didn't agree to it in a timely manner.
[10] MC ts 6 (22 July 2024).
Mr Levine refers to the documents that have been provided by the appellant and describes them as being 'hundreds of documents'. He says in relation to those documents:[11]
I would need to go through, print them out, work full time, and even then, I don't think I would be in a position to get instructions on every document. She also hasn't done - because the sharing of documents hasn't been done - there has been no filing and serving, a list of documents hasn't been filed, and also a brief summary of the content of each document.
[11] MC ts 7 (22 July 2024).
Mr Levine pointed out that in the interim the respondent is subject to the IVRO and that it is the appellant who is agitating the defamation proceedings in Queensland.
In response the appellant pointed out the following:
1.That she had 'not not complied with the orders' (emphasis added) and had provided four affidavits.[12]
2.All that remained for her to do was to provide an affidavit in response, which she was prepared to forego and instead deal with by way of cross‑examination of the respondent at the hearing.[13]
3.That she had communicated with the respondent's lawyers on 30 June 2024 about sharing the documents after which the respondent's lawyer suggested that they do so the following week. She then requested that be extended for a number of days because of the application the respondent's solicitors had lodged in the Queensland defamation action and that she could have complied with that by 15 or 16 July 2024. The appellant pointed out she had provided the list on 21 July 2024.[14]
4.That the programming orders stated that the parties were to share their documents, and this was not contingent on the appellant providing her documents first. Further, that it was the respondent who had not provided his documents at all, making them in breach of the programming orders and that the respondent could have supplied his documents on 1 June 2024 in compliance with the orders but he did not.[15]
5.That there is nothing new in the document list now provided to the respondent. All the documents provided had been provided in the previous year, with the exception of one private message conversation between the appellant and the respondent which amounted to 17 screenshots only.[16]
6.That the respondent or his lawyers had been dishonest or disingenuous with the court.[17]
7.That the appellant wanted her day in court next week and believed that she should be able to.[18]
[12] MC ts 3 (22 July 2024).
[13] MC ts 5 (22 July 2024).
[14] MC ts 4 (22 July 2024).
[15] MC ts 8 (22 July 2024).
[16] MC ts 8 (22 July 2024).
[17] MC ts 5 (22 July 2024).
[18] MC ts 10 (22 July 2024).
The magistrate then outlined her decision and the reasons for it as follows:[19]
On 17 July '24, there's an email from the respondent, attaching documents from you, indicating that you're working on further affidavit material, preparing your own affidavit, and that's the affidavit in response that you speak of. I understand that those documents, as you say, perhaps might have been available earlier, but the reality is there was a number of documents filed last Friday, and the trial is due to commence next Monday. The difficulty the court has is - the first thing that is difficult is that we have no longer got any multi-day dates available for trial this year.
And in actual fact, if the trial was to be vacated and adjourned off, we would be looking at probably a third of the way through next year - that's 2025 - before the matter is resolved. I've just been told that the defamation proceedings, the final hearing is 2 December 2024. And I was aware that there were defamation proceedings at the outset, but the necessity for you to file documents and respond to material in that court is not something that this court would take into account by - in failure to provide documents and filing documents late.
I realise there has been some delay on both sides, but the reality is you are the applicant, not the respondent, in these proceedings. So I'm faced with a situation where, arguably, the respondent is at a disadvantage. But taking into account the defamation proceedings being on foot, and the fact that I can't list a trial in these proceedings until three days - in three days in a row, and potentially more, given the amount of material that has been filed, until next year. And with the non-compliance of orders, plus the defamation proceedings coming to a final hearing on 2 December '24, I take the view that those defamation proceedings are a more proper arena for these issues to be fleshed out.
They were some way off, and they had stalled, when the order was initial granted. And in the circumstances, what I'm going to do, under section 19 of the Magistrates Court (Civil Proceedings) Act 2004, which states - 19, subsection (2):
If a party does not comply with this Act, rules of court, or an order or direction made by the court, the court may order the party to pay the costs occasioned by non-compliance irrespective of whether the party ultimately succeeds in the case; or give judgment against the party without trial.
And relying on that section, what I'm going to do is I'm going to grant the application to cancel the order, and I'm going to cancel the interim violence restraining order, because if it were to remain in place until next year, it brings about a fair amount of unjustness in respect of the respondent.
[19] MC ts 10 - MC ts 11 (22 July 2024).
Application to amend grounds of appeal
Following the first appeal hearing on 24 April 2025, the following email was provided to counsel for the respondent and the appellant:
Dear Ms Leigh and Mr Stanarevic,
…
Upon further consideration of the relevant legislation, Her Honour points to the following:
1.On 13 July 2023, at a FOH of the appellant's Misconduct Restraining Order (MRO) application, the Magistrate instead granted an interim Violence Restraining Order (IVRO);
2.Section 43(1) and (1a) of Restraining Orders Act 1997 permits a court to make a final VRO only in those circumstances;
3.The granting of a IVRO by the magistrate appears to amount to an error of law; and
4.If so, the remedy should be to remit the appellant's application for an MRO for a further FOH in the Magistrate's Court.
Her Honour seeks further brief written submissions from each party in light of the above, should they wish to add anything further. The appellant is to file and serve any submissions on this issue within 14 days of today, the respondent within 7 days thereafter.
Regards,
Associate to Her Honour Judge Zempilas
Both counsel for the respondent and the appellant provided further submissions in writing and a second appeal hearing was held on 30 July 2025 to hear oral argument in respect of this issue, including an application by the appellant to amend her grounds of appeal in accordance with r 56 and r 57 of the District Court Rules 2005 (WA) (Rules).
The submissions pointed out that the potential error referred to in the email was incorrect, as the magistrate's first decision was in fact made at a mention hearing for the appellant's MRO application. I acknowledged the error to counsel and the second appeal hearing proceeded on that basis.
Legal principles
Relevantly, the Act provides as follows:
3.Terms used
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);
final order hearing means a hearing fixed under section 33(1), 40(3), 41(4) or 43A(7)(b);
interim order means a telephone order or an order made under section 29(1)(a), 43A(7)(a) or 63(4b), the duration of which is more than 72 hours;
mention hearing means a hearing fixed under section 23(2), 26(3), 29(2) or 39;
Part 4 - Hearings and evidence
Division 1 - Mention hearings
41.Consent order or final order hearing to be fixed
(1)If, at a mention hearing, the respondent consents to a final order being made in relation to a VRO or MRO, the court may make the order by consent without being satisfied there are grounds for making the order.
(2)If a respondent consents to a final order being made in relation to a VRO or MRO, the consent does not constitute an admission by the respondent of all or any of the matters alleged in the application.
(3)The registrar is to prepare and serve a final order made by consent under subsection (1).
(4)Subject to section 40, at a mention hearing at which a consent order is not made, the court is to direct the registrar to fix a hearing and summons the respondent to attend the hearing.
Division 2 - Final order hearings
43.Making final order
(1)Subject to section 42, at a final order hearing a court may make a final order of the type, and with the terms, the court considers appropriate.
(1a)Without limiting subsection (1), at a final order hearing, a court -
(a)may, subject to Part 2, make a final order for a VRO even if the application was for an MRO;
(b)may, subject to Part 3, make a final order for an MRO -
(i)even if the application was for a VRO; and
(ii)even if an interim order is in force.
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.
72.Practice and procedure generally
(1)Unless otherwise prescribed by this Act, the practices and procedures to be followed in matters relating to restraining orders are, if the matter is being heard by -
(a)the Magistrates Court, the practices and procedures applying in that court under the Magistrates Court (Civil Proceedings) Act 2004;
The grounds for the granting of a VRO are set out in s 12 of the Act. The grounds for the granting of an MRO are set out in s 34 of the Act.
The MCCPA relevantly provides:
19.Default by party, Court's powers to deal with
(1)This section does not apply to a failure to comply with the judgment of the Court in a case or any order made in or as a consequence of the judgment.
(2)If a party does not comply with this Act, rules of court, or an order or direction made by the Court, the Court may -
(a)order the party to pay the costs occasioned by the non‑compliance irrespective of whether the party ultimately succeeds in the case; or
(b)give judgment against the party without a trial.
(3)The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
The MCCPA further provides that a party to a case that is not a minor case who is aggrieved by a decision of a magistrate to make any order in the course of proceedings in the case may appeal to the District Court.[20]
[20] MCCPA s 40(1)(a).
As to the interplay between s 64 of the Act and s 40(1)(a) MCCPA, the Court of Appeal has stated:[21]
… 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.
[21] KSJ v GJA [2021] WASCA 98 [103] (KSJ).
The meaning of the phrase used in s 64(1)(b)(iii) of the Act was also discussed in KSJ:[22]
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. …
[22] KSJ [142].
This was expanded to include the following potential consequences:[23]
…
(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.
[23] KSJ [144].
An appeal pursuant to either s 64 of the Act or s 40(1)(a) of MCCPA is by way of a rehearing.[24] The appeal is to be decided on the material and evidence that was before the Magistrates Court.[25]
[24] District Court Rules 2005 (WA) r 50(1).
[25] MCCPA s 40(4)(a).
The appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision was the result of some legal, factual or discretionary error.[26]
[26] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[27] The onus is on the appellant to demonstrate this error.
[27] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).
Appellant's submissions
In respect of the magistrate's first decision, the appellant submits there was no power for the magistrate to grant an IVRO in this way and at that point in proceedings. The appellant pointed to the definition of an interim order pursuant to s 3 of the Act which does not include such an order.
The appellant submits such an error cannot be ignored even though it occurred at an earlier time in proceedings because it changed the course of the entire proceedings from that point. In particular, the appellant submits that, had the magistrate not made the first decision, the parties would have had a FOH for a MRO within a few months thereafter. The appellant says she was further prejudiced by the ongoing delays and then the subsequent need to appeal the second decision of the magistrate.
Further, the appellant submits an error of law, irrespective of when in proceedings it occurred, ought to be addressed in the interests of the proper administration of justice.
In respect of the second decision, if there is no right of appeal pursuant to s 64 of the Act, the appellant submits there is a right of appeal pursuant to s 40 MCCPA because the magistrate stated she was making her decision pursuant to s 19 MCCPA.
The appellant says this court is required to take into account all the material comprising the chain of events leading up to the making of the second decision. The appellant submits the magistrate should have taken all those materials into account and, if required, could have reserved her decision in order to do so.
The appellant submits this could have included the following; the reasons for the appellant's delay in compliance with the programming orders, the evidence of substantial compliance with the programming orders by the appellant filing affidavits well in advance of the FOH, the intended purpose of the programming orders and the fact the appellant was a self‑represented litigant with ongoing health and disability issues.
The appellant submits procedural fairness was not afforded to her because:
1.The magistrate was led into error by the respondent's counsel, which had the result of seriously undermining the appellant's credibility;
2.The magistrate glossed over the respondent's own non‑compliance with the programming orders and overlooked the efforts the appellant had made in advancing the trial from 20 June 2024 to 17 July 2024; and
3.The magistrate did not consider the objects of the Act.
The appellant submits magistrate cancelled the IVRO without providing the appellant the opportunity for a FOH, where there was no impediment to the FOH proceeding on 29 July 2024.
Respondent's submissions
The respondent submits leave should not be granted for the appellant to amend the grounds of appeal to include an alleged error of law in respect of the magistrate's first decision. The respondent submits that such a ground is too different to the original ground of appeal and that too much time has passed since the making of the first decision, rendering it unfair to the respondent and potentially out of time.
The respondent submitted that this court, in identifying and pointing out a potential error of law in respect of the first decision, has acted outside its remit. The respondent submitted that, if a court of appeal comes across an error of law made two years prior, it has to be ignored.
The respondent, in written submissions, said that in sending the email dated 5 May 2025 and in not qualifying the proposed error of law, I had pre‑determined the matter such that I ought to recuse myself.[28]
[28] There was no formal application to this effect.
In respect of either the first or second decision, the respondent submits there is no right of appeal pursuant to s 64 of the Act because the decision made was not in respect of a final order but was an 'interlocutory' decision.
The respondent relies upon KSG as authority for the proposition that this court never has power to hear an appeal against a decision in respect of an IVRO. The respondent submitted this proposition of law applies regardless of the facts of KSG as compared to the facts of this case.
In respect of the first decision, the respondent submits there was no error of law because the power for a magistrate make an IVRO at a mention hearing for an application for an MRO can be inferred pursuant to s 16 MCCPA.
Even if there were an error of law, the respondent submitted the only recourse for the parties would have been judicial review of the decision or appeal by the respondent.
In respect of the second decision, the respondent submits if a right of appeal is available, the only transcripts this court ought to refer to in considering the appeal are those which reflect submissions made and relied upon by the magistrate.
The respondent submits that in making the second decision, the magistrate did afford procedural fairness.
The respondent points out:
1.The earlier FOH had to be adjourned because the appellant could not comply with the programming orders on that occasion, therefore the appellant was not entitled to a second adjournment.
2.The programming orders made on 29 February 2024 were agreed by the appellant and took into account the appellant's issues. Nonetheless, the appellant had continuously demonstrated disregard for the programming orders.
3.The appellant's three initial affidavits were lodged slightly late, to which the respondent made no complaint.
4.The appellant had bombarded the respondent with a range of documents just before the FOH was scheduled to begin. Going through and taking instructions on all the documents was not a simple matter.
5.The respondent had not shared its documents via Dropbox because that should have occurred by way of an 'exchange' of documents with the appellant. Once the appellant shared them on 21 July 2024, the respondent was not in a position to proceed with the FOH.
In respect of the appellant's submission that respondent's counsel misled the magistrate on 22 July 2024, the respondent's counsel acknowledged 'it may not have been as accurate as it could have been'[29] when stating to the magistrate 'there was an attempt to have an exchange of documents on 30 June by my instructing solicitor but that was refused'.[30]
[29] ts 85.
[30] MC ts 4 (22 July 2024).
Further, the respondent's counsel submitted there was no utility in him reading out to the magistrate the whole of the appellant's email dated 3 July 2024, including the sentence in which she suggested the exchange of documents 'may need to be early the following week', as this was not relevant.
The respondent was planning to make an application in relation to his inability to attend the FOH in person, either to appear by AVL or for the FOH to proceed in his absence. His application to appear by AVL was included in the application dated 17 July 2024.
The respondent would have been significantly prejudiced by any adjournment of the FOH because, due to the court listing considerations outlined by the magistrate, he would have remained subject to the IVRO for up to nine further months.
Findings of fact
The magistrate made two decisions relevant to this appeal.
First, the magistrate decided on 13 July 2023, at a mention hearing for the appellant's misconduct restraining order application, to instead grant a IVRO in favour of the appellant.
The first decision changed the trajectory of the appellant's initial application for a final MRO. In particular, it altered the timeframe and process for the application thereafter, as well as the test to be applied by the magistrate pursuant to the Act in considering whether to grant or refuse a final order.
Second, the magistrate decided on 22 July 2024 to cancel the IVRO without permitting the appellant's application to proceed to a FOH.
There was evidence from the appellant in support of her application in the possession of the court and the respondent from April 2024, in the form of:
(a)three affidavits filed by the appellant, being those of Kennedy, Elbourne and the appellant herself, and
(b)the evidence the court was required to take into account pursuant to s 42(4) of the Act.
The appellant was self‑represented throughout and experienced additional practical issues in respect of the proceedings due to the nature of her health issues, some of which the magistrate was willing to accommodate, and the additional time involved in responding to the respondent's applications in the Queensland defamation action which directly coincided with the proceedings in Western Australia under the Act.
The stated purpose of the programming orders was to shorten the length of the FOH, to make arrangements for AVL links with witnesses, and to avoid the parties presenting inadmissible evidence.
The additional orders made on 29 February 2024 reflected the need for both parties to be present in person at the FOH and for both parties to share documents by 1 June 2024.
The making of such programming orders is not provided for within the Act but can be made pursuant to the MCCPA.
The programming orders were not expressed by the magistrate to be springing orders and the potential consequences of either party not complying with the orders was never explained to either the appellant or respondent.
The respondent did not comply with the programming orders to some extent in that affidavits were filed and served outside the scheduled timeframes and no documents were ever shared by the respondent in the Dropbox.
The respondent did not express any concern to the court or to the appellant about the appellant not having complied with the programming orders before 17 July 2024, even though the appellant wrote to the respondent's solicitors in late June and early July to discuss the issue.
The appellant was making genuine efforts to progress the FOH by communicating with the respondent's solicitor approximately one month prior to the FOH and on four occasions for the following fortnight.
The respondent's solicitor replied on only one occasion on 3 July 2024 and did not then communicate any concern about non-compliance or an inability to prepare the matter for FOH.
The respondent knew that he could likely not comply with the programming orders, in particular the order that he attend in person at the FOH, and he had been aware of this since April when he obtained the medical certificate to that effect. The respondent did not bring this to the attention of the court or the appellant until he made the application to cancel or adjourn the FOH on 17 July 2024.
The application of the 17 July 2024 sought orders either cancelling the IVRO or adjourning the FOH with costs. The magistrate focused on the application for cancellation and did not fully consider the respondent's alternative application in light of the other factors referred to above.
The respondent's counsel misstated to the magistrate the extent to which the respondent's solicitor had attempted to exchange documents, misstated that the appellant had refused such attempts, and did not inform the magistrate fully as to when the appellant said she would be in a position to share documents by only partially reading an email dated 3 July 2004.
The magistrate did not consider a further alternative; to continue with the FOH listed on 29 July 2024 on the basis of the evidence actually filed.
Was there an appellable error of law in respect of the first or second decision?
This appeal is to be decided on the material and evidence that was before the Magistrates Court, including reference to transcripts of the entirety of proceedings and all documents filed by the parties.
The potential error of law in the magistrate's first decision was pointed out to the parties in qualified terms in the email dated 5 May 2025 and the parties were given an opportunity to be heard on it in writing and by way of oral submissions.
The issue was not, nor can it reasonably have been perceived to be, pre-determined in those circumstances.
The potential error of law occurred during a part of proceedings already in evidence at the first appeal hearing.
There is therefore no prejudice to the respondent in granting leave to amend the grounds of appeal that would outweigh any prejudice to the appellant in refusing such leave.
The application to amend the grounds of appeal is allowed, as is any extension of time to the extent it is necessary. Accordingly, the appellant's grounds are amended to include ground 1a: the magistrate erred in law in granting an IVRO in favour of the appellant on 13 July 2023 (first decision).
The first decision by the magistrate occurred at a mention hearing in respect of the appellant's original application for a MRO, pursuant to s 41(4) of the Act.
In granting an IVRO on that occasion, the magistrate implicitly did not make a final misconduct restraining order by consent or direct the registrar to fix a FOH, which were the only two options contemplated by s 41(4) of the Act.
In the absence of non-appearance or consent by the respondent, the only way in which the appellant could be granted a final order was at a FOH.
While there is provision for a court to grant a final VRO upon an application for a MRO, this is only pursuant to s 43(1a) of the Act; at a FOH on an application for a MRO, a court may make a final order for a VRO.
Section 43(1a) of the Act therefore allows for a magistrate, having heard all the evidence at a FOH and, if satisfied the evidence supports the criteria set out in pt 2 of the Act dealing with VROs, to instead grant a final VRO.
There is no power for a court to grant an IVRO at a mention hearing pursuant to s 40(4). Such a power cannot be inferred from s 16 MCCPA because the court's powers are prescribed by s 40(4) of the Act. Section 72 of the Act has no application in those circumstances.
The magistrate made an error of law in so doing.
As to whether this error can be the subject of appeal pursuant to s 64 of the Act, KSJconcerned a particular factual scenario in which a court cancelled an IVRO but the substantive application for a final restraining order remained on foot. It was in those circumstances the Court of Appeal decided s 64 of the Act did not permit an avenue of appeal; because the appellant's right to a FOH in that case had not been impacted.
It is clear from the decision in KSJ the Court of Appeal considered there might be circumstances in which an earlier or preliminary decision by a magistrate in respect of an application for a restraining order might still be an order 'in relation to a final order'.[31] This is consistent with a plain reading of s 64(1)(b), in which subpar (iii) contemplates appeals against orders beyond simply making or refusing a final order.
[31] KSJ [142], [144].
In the circumstances of this case, the magistrate's first decision resulted in the appellant losing her immediate right to a FOH to determine her substantive application for a final MRO. Instead, she had to progress through an alternative process towards an application for a final VRO which changed the legal considerations to which the magistrate would be required to have regard in deciding whether to grant an VRO at a FOH.
The first decision was therefore an order 'in relation to a final order' and appellable pursuant to s 64 of the Act. The appeal is allowed on that basis.
I therefore do not need to determine whether the magistrate's second decision amounted to an appellable error, by virtue of denial of procedural fairness to the appellant.
In any event, the appellant presented a compelling case to make such a finding, in circumstances where:
1.As a consequence of the magistrate's second decision, the appellant lost her right to a FOH to determine her substantive application for a final restraining order.
2.The appellant was self-represented, and the respondent was represented by solicitor and counsel.
3.The programming orders of 25 January 2024 and 29 February 2024 were never expressed by the magistrate to be springing orders, in that the potential consequences of non-compliance were not explained to either party.
4.In cancelling the IVRO due to perceived non-compliance by the appellant with the programming orders of 29 February 2024, the magistrate did not consider the purpose and nature of the programming orders within the context and objects of the Act.
5.Counsel for the respondent misstated the extent of the appellant's non-compliance at the hearing when the magistrate made the second decision.
The appellant's application for a MRO dated 14 April 2023 is remitted to the Magistrates Court at Perth for a FOH to be fixed pursuant to s 41(4) of the Act.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DB
Associate to Judge Zempilas
28 AUGUST 2025
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