Leigh v Sanchez - [2025] WADC 53

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Leigh v Sanchez

Details

AGLC: Leigh v Sanchez [2025] WADC 53
Case: [2025] WADC 53
Decision Date: 29 AUGUST 2025

CaseChat Overview and Summary

In the matter of Leigh v Sanchez, the appellant, Mr Leigh, sought review of an interim violence restraining order (VRO) that had been granted to the respondent, Ms Sanchez. The dispute arose when Mr Leigh, who was incarcerated, applied for a misconduct restraining order (MRO) under the Restraining Orders Act 1997 (WA), and Ms Sanchez subsequently applied for a VRO. The matter was heard in the Magistrates Court of Western Australia, with the appeal being heard by the District Court.

The central legal issue before the court was whether the Magistrates Court had correctly exercised its discretion in cancelling the interim VRO without holding a final hearing, and whether procedural fairness was observed. The court needed to determine whether the Magistrates Court's decision was an error of law, particularly concerning the cancellation of the interim order without a final hearing and the appellant's non-compliance with programming orders.

The court held that the Magistrates Court did indeed err in cancelling the interim VRO without a final hearing. The court found that the appellant's failure to comply with programming orders did not automatically entitle the Magistrates Court to cancel the interim order without considering the merits of the application. The court emphasised that procedural fairness required the Magistrates Court to afford the appellant an opportunity to be heard on the merits of the application, particularly given the serious consequences of a VRO. The court concluded that the Magistrates Court's decision was an error of law and quashed the interim VRO.

The court further determined that the appeal should be remitted to the Magistrates Court for a final hearing on the VRO application. The court ordered that the interim VRO be cancelled, and that the matter be relisted for a final hearing to determine whether a VRO should be granted to Ms Sanchez.

Orders