Nicolosi & Faron (No 3)
[2025] FedCFamC1A 146
•20 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nicolosi & Faron (No 3) [2025] FedCFamC1A 146
Appeal from: Faron & Nicolosi [2025] FCWA 57 Appeal number: NAA 153 of 2025 File number: PTW 937 of 2017 Judgment of: ALDRIDGE, HARPER & SCHONELL JJ Date of judgment: 20 August 2025 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal from an interlocutory determination by the primary judge – Allegations of denial of procedural fairness and apprehended bias without merit – Where the applicant contends the primary judge erred in an application of the Harman undertaking as to affidavits and a transcript – Where the primary judge found the affidavit and transcript were impressed with an implied undertaking which necessitated consideration as to whether special circumstances existed permitting their use – Where the primary judge fell into error as the affidavit and transcript were not caught by the common law restrictions as to use – Where the Full Court is not satisfied substantial injustice would be occasioned if leave were not granted – Leave to appeal refused – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt XIVB, s 114UB
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35(b)
Family Court Act 1997 (WA) Pt 11A
Cases cited: Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow(2016) FLC 93-692; [2016] FamCAFC 34
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Nicolosi & Faron (No 2) [2024] FedCFamC1A 160
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Spedding v New South Wales [2022] NSWSC 503
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 71 Date of hearing: 29 July 2025 Place: Heard in Perth, delivered in Sydney The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 153 of 2025
PTW 937 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NICOLOSI
Applicant
AND: MS FARON
Respondent
ORDER MADE BY:
ALDRIDGE, HARPER & SCHONELL JJ
DATE OF ORDER:
20 AUGUST 2025
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 4 April 2025 is dismissed.
2.The Application in an Appeal filed 29 May 2025 is dismissed.
3.The respondent’s oral application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicolosi & Faron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & SCHONELL JJ:
By Notice of Appeal filed 4 April 2025, the applicant seeks leave to appeal from an interlocutory determination by the primary judge on 14 March 2025. Given the determination was interlocutory in nature, the applicant requires leave to appeal.
For reasons that will become apparent, leave to appeal will be refused and the Notice of Appeal dismissed.
BACKGROUND
The parties have been engaged in litigation before the Family Court of Western Australia and other courts in Western Australia since shortly after their separation in 2017. The litigation before the Family Court of Western Australia concluded with reasons for judgment delivered by the primary judge on 5 April 2024.
The applicant, unhappy with the result, appealed those orders which appeal was dismissed by a differently constituted Full Court of the Federal Circuit and Family Court of Australia on 17 September 2024. The parties remain engaged in proceedings before the Magistrates Court of Western Australia where each seeks restraining orders against the other, and proceedings before the Supreme Court of Western Australia commenced by the applicant on 11 March 2024 in which he seeks damages for defamation.
On 13 February 2025, the respondent filed an application seeking access to certain documents for use in the proceedings before the Magistrates Court of Western Australia and the Supreme Court of Western Australia. The documents were identified by the primary judge, as follows:
11The [respondent] seeks to leave to use all or part of the following documents:
1.Reasons for decision published 5 April 2024: [2024] FCWA 60 (trial judgment).
2.Reasons for decision published 5 April 2024: [2024] FCWA 89 (leave to use documents in the Magistrates Court of Western Australia in alleged breach of Family Violence Restraining Order proceedings).
3.Affidavit of [the applicant] filed on 29 May 2023.
4.Trial transcripts from 6 to 10 November 2023.
5.Transcript dated 25 January 2024 (the [applicant’s] closing submissions).
6.Transcript dated 5 April 2024 (leave to use documents in the Magistrates Court of Western Australia).
7.Single Expert Witness Reports of [Dr B] dated 7 December 2018 (sic) (annexed to an affidavit filed on 17 January 2018) and dated 16 November 2018 (annexed to an affidavit filed on 22 November 2018).
Relevant in part to the determination of this appeal was the position of the applicant identified by the primary judge in his reasons as follows:
6The [applicant] does not object to the [respondent] using the documents she particularises, provided that in each case the entire document is available and not simply extracts, and all other documents referred to in each document is available, and all documents referred to in the transcripts are available.
The breadth of the material sought by the applicant included every document on the court file as well as every document subpoenaed. The applicant’s position can be crudely expressed as “all or nothing”.
The applicant in addition sought a further suite of orders. It is useful to in part explain why leave is refused and the Notice of Appeal is dismissed to record in full the additional relief sought by the applicant which was in the following terms:
3.That the Court formally reviews the credibility of the [respondent’s] evidence based on findings from prior courts.
(A)The Court must reassess previous determinations where the [respondent’s] credibility was found to be unreliable.
(B)The Court should consider whether past findings were made on misleading or incomplete evidence and if they warrant reconsideration.
4.That the Court acknowledges and corrects procedural unfairness resulting from contradictions and inconsistencies in [the primary judge’s] rulings.
(A)The Court must reconsider rulings where [the primary judge] found the [respondent] to be unreliable but still relied on her evidence.
(B)The Court must reassess financial orders and parenting arrangements where misleading evidence was relied upon.
5.That, in light of these concerns, the matter be relisted for judicial reconsideration, with an independent judge appointed if necessary.
(A)If there is a reasonable apprehension of bias or failure to apply judicial comity, the case should be reconsidered by a judge who was not previously involved in these proceedings.
6.That the Court refers the conduct of [the respondent] to the Western Australian Police for investigation into whether she has committed perjury or attempted to pervert the course of justice.
(A)If [the respondent] knowingly provided false statements under oath, this should be investigated under Section 124 of the Criminal Code (WA).
(B)If [the respondent] knowingly withheld or manipulated evidence, this may constitute attempting to pervert the course of justice under Section 143 of the Criminal Code (WA).
7.That the Court refers the conduct of [Ms. C] and [Ms. D] to the Legal Practice Board of Western Australia and WA Police for investigation.
(A)If [Ms. C] and [Ms. D] failed to correct false evidence, knowingly allowed misleading testimony, or withheld key evidence, this constitutes a breach of their professional duties under the Legal Profession Act 2008 (WA).
(B)If they knowingly misled the Court or assisted in misleading the Court, this may also require criminal investigation under Sections 124 and 143 of the Criminal Code (WA).
8.That, if necessary, the Court lists the matter for a rehearing to properly consider new evidence, procedural fairness concerns, and the impact of misleading testimony.
(A)This includes the reconsideration of financial orders based on false declarations by the [respondent].
(B)The Court should assess whether any changes to parenting orders are required to ensure the best interests of the child.
9.That all previously excluded evidence, including subpoenaed materials and financial documents, be considered in full.
(Emphasis added)
(Form 2A Response to an Application in a Case filed 12 March 2025)
The primary judge in ex tempore reasons granted part of the relief sought by the respondent permitting her to use two decisions of the primary judge delivered 5 April 2024 and otherwise dismissed each party’s relief.
The applicant seeks leave to appeal all of the orders made by the primary judge.
APPLICATION IN AN APPEAL
On 29 May 2025, the applicant filed an Application in an Appeal seeking to expand the Appeal Book index by the addition of various documents.
Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) confers on this Court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) the High Court observed that further evidence on appeal can be utilised to demonstrate error, bolster the reasons under attack, or provide source material for any re-exercise of discretion.
The applicant seeks to adduce the evidence to demonstrate error. We are satisfied that the further evidence has no bearing on the appeal and fails to meet the requirements identified by the High Court, namely, that it is necessary to receive it to avoid an error which “cannot be otherwise remedied by the application of the conventional appellate procedures” (CDJ v VAJ at [109]).
LEAVE TO APPEAL
As referred to earlier, the applicant requires the grant of leave to appeal. In Medlow & Medlow(2016) FLC 93-692 at [57], the Full Court of the Family Court of Australia identified that an applicant for leave must establish that the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration and that if leave were refused a substantial injustice would result.
GROUNDS OF APPEAL
There are nine grounds of appeal, three of which contend in part error by way of denial of procedural fairness or apprehended bias. These grounds must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Before addressing those grounds, it is relevant to a consideration of each of the grounds to observe that the primary judge delivered reasons ex tempore. In that respect, Ryan J said in Perdicari & Perdicari (2019) FLC 93-914 as follows:
25.Before the grounds of appeal are discussed it is important to remember that this is an appeal against a judgment given ex tempore, immediately following the hearing. Reference to the trial transcript demonstrates that the primary judge had a sound command of the facts in issue and the arguments advanced by each of the parties. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked. Such an approach is appropriate in this appeal.
As with her Honour, we likewise consider such an approach is apposite to this appeal.
Ground 2: Apprehended bias – prior adverse credibility findings prevented fresh consideration
By Ground 2, the applicant contends that the primary judge, by reason of prior determinations reflecting on the credibility of the applicant, should have recused himself. The Summary of Argument contends:
8.…His Honour erred in failing to recuse himself despite having previously formed and expressed clear adverse views about the [applicant’s] credibility, giving rise to a reasonable apprehension of bias. Primary Judgment Paragraphs: Implied across 20–25 (contextual), originating from FCWA 60 [5 April 2024]
(As per the original)
To establish apprehended bias, the applicant must demonstrate objectively two things. First, what it was that was said by the primary judge that might give rise to an apprehension that the judge might decide the case other than on its merits, and second, and of no less significance, an articulation of the logical connection between what was said and the possibility, real not remote, of a “feared deviation from the course of deciding the case on its merits” as per Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [8].
As their Honours observed in Ebner, to succeed on a ground of apprehension of bias, the applicant must establish that:
6.… a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide…
(Footnote omitted)
The observations of the High Court of Australia are not without qualification and are subject to the conduct of the person who asserts an apprehension of bias within the rubric of waiver (Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”)). In that respect, in Vakauta, Dawson J observed at 576:
There can, I think, be no doubt that an objection upon the ground of bias can be waived. Even where it is a question of the public apprehension of bias, the parties themselves must be competent to waive the objection. Although justice must manifestly be seen to be done, where a party, being unaware of his right to object, waives that right, there will be little danger of the appearance of injustice…
Likewise, Brennan, Deane and Gaudron JJ observed at 572 as follows:
…It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
We are satisfied that the observations of their Honours are apposite to what occurred before the primary judge and what is now asserted in this appeal. The applicant appealed the primary judge’s orders made 5 April 2024. The first ground of appeal in that appeal asserted “perceived bias” on the part of the primary judge.
The Full Court (Nicolosi & Faron (No 2) [2024] FedCFamC1A 160) addressed both the test in Ebner as well as the concept of waiver at length. Their Honours observed at [43] that “no complaint or objection was made to the primary judge at the trial,” thereafter quoting the above passage from the majority judgment in Vakauta.
Their Honours then observed as follows:
44.While exceptional circumstances might allow a party to bring the complaint first at appeal without waiver, no such exceptions apply here where the complaint is discrete and particularised as coaching and where the [applicant] was represented at the trial.
We are not satisfied that any such exception applies to this appeal. Whilst legally unqualified, the applicant appeared before the Full Court in 2024 to conduct his previous appeal, one ground of which he now recycles as Ground 2 on this application. He well knew he could have raised an objection before the primary judge and the consequence of failing to do so. He elected not to do so. Having conducted himself in such fashion, he cannot now be heard to complain about that which he waived.
There is no merit to Ground 2.
Ground 1: Error of fact and denial of procedural fairness – misattribution of allegations
Ground 1 asserted a combination of legal and factual error.
The asserted denial of procedural fairness rests upon an anterior contention of asserted factual error on the part of the primary judge. In the event that the contention of factual error is specious, the assertion of a denial of procedural fairness must fall away.
The assertion of factual error is described in the applicant’s Summary of Argument in the following terms:
2.His Honour attributed the allegation of legal-representative misconduct to [the applicant], when it was [the respondent] who raised it in her cross examination.
Duty of factual accuracy: A court must correctly identify who makes an allegation before adjudicating its merits—mischaracterisation is a jurisdictional error.
3.Because the misattribution went uncorrected, the court treated his application as frivolous and denied him any forensic chance to test the claim—an outcome both procedurally unfair and factually unfounded.
This misattribution led to the [applicant’s] application being dismissed as “scandalous and vexatious,” constituting a denial of procedural fairness.
(As per the original)
It is apparent from the use of the word “cross-examination” that the applicant is conflating the hearing before the primary judge that resulted in the final orders made 5 April 2024 from which the applicant unsuccessfully appealed, with the hearing before the primary judge the subject of this application which did not involve cross-examination. The applicant has exhausted his rights of appeal in relation to matters the subject of the earlier hearing and they cannot be reagitated in this application.
A review of the transcript of the hearing and the reasons does not reveal the alleged attribution and consequently no factual error is established.
Ground 1 is without merit.
Ground 5: Denial of procedural fairness – subpoena refused without hearing or reasons
In support of this ground, the applicant in his Summary of Argument contends:
36.The published judgment omits any reference to the subpoena issue, leaving appellate review impossible—the Court gave no intelligible basis for refusal.
(As per the original)
To give this ground of denial of procedural fairness any merit would require, as with Ground 1, the applicant to establish the anterior fact, namely that he had sought an order for the issue of a subpoena.
A review of the Appeal Book and transcript does not reveal the applicant seeking any such order.
In those circumstances, Ground 5 has no merit.
Ground 3: Misapplication of abuse of process – improper characterisation of fresh issues
Ground 8: Failure to address judicial inconsistencies in prior findings
It is convenient to address these grounds together as they involve a consideration of the same issue.
In support of Ground 3, the applicant states in his Summary of Argument:
14.… Improper Characterisation of Fresh Issues His Honour erred in law by treating the [applicant’s] application as an attempt to relitigate matters already decided, when the issues raised were new, based on post-trial conduct and findings, and had not been previously adjudicated. Primary Judgment Paragraphs: 20, 21
His Honour ruled (J [20]–[21]) that [the applicant’s] 12 March 2025 application was “an attempt to re-agitate matters long decided” and summarily dismissed it as an abuse of process. That ruling is legally wrong because:
15.The application concerned post-trial conduct and discoveries (editing of evidence, selective use of Family-Court material) that arose only after the 5 April 2024 final orders;
(As per the original)
The applicant’s complaint engages consideration of the primary judge’s reasons which were as follows:
20The orders sought in paragraphs 3 to 5 and 8 to 9 constitute an abuse of process. The [applicant] is seeking to relitigate matters which have already been definitively determined. As earlier recounted, final orders were made in these proceedings on 5 April 2024 and the [applicant’s] appeal against those orders was dismissed on 17 September 2024.
His Honour’s reasons make plain that his observation that the applicant was seeking to relitigate matters which had already been determined was limited to Orders 3 to 5 and 8 to 9 as sought in the applicant’s response which had nothing to do with the matters about which the applicant now complains. No part of his Honour’s reasons on this matter is erroneous.
In support of Ground 8, the applicant in his Summary of Argument submits:
53.… His Honour failed to explain or reconcile inconsistencies between critical trial commentary and the written judgment issued in April 2024, undermining the clarity and reliability of the factual findings.
Primary Judgment Paragraphs: Not directly addressed in [2025] FCWA 57; contradiction arises when compared to comments in FCWA 60 (5 April 2024) and transcript of 8 November 2023.
Responses by the [applicant] in an email chain provided to the court were left out.
During cross examination during trial 8th of November 2024 p9 paragraph 15 onwards the Judge made comments that the [respondent] had intentionally left these responses out.
“I’m concerned, really, that you’ve left this out of your trial affidavit. And one inference that’s available to me is that you’ve deliberately left out the email... I need explanations and I need to have an understanding about what weight I can attach to the fullness and completeness and accuracy of the evidence you are giving me.”
(As per the original)
The Summary of Argument thereafter proceeds to make complaint about matters the subject of the primary judge’s determination on 5 April 2024 which has already been the subject of an unsuccessful appeal.
Each of the grounds address Orders 3 to 9 sought by the applicant. Each of the orders were beyond the primary judge’s power to make and could not have been made. Courts of first instance do not review or reconsider their final determinations (Orders 3 and 5), they do not exist to “acknowledge and correct procedural unfairness” arising from their final determinations (Order 4), they do not relist for rehearing a final determination (Order 8), nor do they exist to facilitate or promote the personal grievances of litigants once the proceedings are determined (Orders 6 and 7).
It is apposite to observe that the dismissal of Orders 6 and 7 occasioned no prejudice to the applicant as it neither deprived him of a right nor foreclosed him making a referral of his own motion. The utility of the appeal in that and other respects is not apparent.
Grounds 3 and 8 are without merit.
Ground 4: Unequal application of Harman undertaking principle
Ground 7: Failure to properly exercise discretion – refusal to permit use of documents
It is convenient to deal with these grounds together as the assertions of error overlap.
The Summary of Argument in support of Ground 4 contends, in essence, that the primary judge, making some of the orders sought by the respondent and none of the orders sought by the applicant, was “applying one rule to [the respondent] and another to [the applicant] without any rational basis” and “committed a jurisdictional error warranting appellate correction” (at paragraph 28). It further contends “This imbalance distorts multi-jurisdictional justice and erodes public confidence in the fairness of the process” (at paragraph 30).
What is meant by the application of one rule to the respondent and another to the applicant or multi-jurisdictional justice in the context of this application is not apparent. The applicant’s principal complaint is that the primary judge made only some of the orders sought by the respondent and not the order sought by him. That is not appealable error.
In support of Ground 7, the applicant submits:
50.The summary refusal without consideration of relevant factors or reasons is a classic House v The King error, warranting intervention and remittal for proper exercise of discretion.
(As per the original)
To succeed, the applicant must demonstrate that the discretion reposed in the primary judge miscarried in the terms articulated in House v The King (1936) 55 CLR 499 at 505. That is, the applicant must establish a material legal, factual, or discretionary error.
The applicant has not established any error on the part of the primary judge’s determination dealing with the applicant’s vast unparticularised application seeking use of every document on the court file and every document ever subpoenaed. We are, however, troubled by aspects of the primary judge’s determination dealing with the respondent’s application seeking to use the affidavit of the applicant and the transcripts. Whilst not the subject of a clearly discrete articulated ground, it broadly falls within the parameters of Grounds 4 and 7. It is not the task of an appellate court to overlook error where it is apparent (Warren v Coombes (1979) 142 CLR 531).
The primary judge determined the respondent’s application in relation to these documents on the basis that they were impressed with “the implied undertaking” as that term is used by their Honours in Hearne v Street (2008) 235 CLR 125 which, according to his Honour, necessitated consideration as to whether special circumstances existed permitting their use (at [7] and [8]).
We are satisfied that in approaching the application in this manner in relation to the affidavit and the transcripts, his Honour fell into error. The exercise of discretion in the sense identified in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 only applies if the subject documents are caught by the implied undertaking. If they are not, then the exercise of discretion has no role to play, and any party is free to use them subject to the provisions of Pt XIVB of the Family Law Act 1975 (Cth) (“the Act”) and Pt 11A of the Family Court Act 1997 (WA) (“the WA Act”).
The applicant’s affidavit was utilised in the family court proceedings and so “lost any character that it may otherwise have had as material impliedly subject to an obligation not to publish or use it” (Spedding v New South Wales [2022] NSWSC 503 (“Spedding”) at [12]). The same applies to the transcript (Spedding at [14]).
As the affidavit and transcript are not caught by the common law restrictions as to use, then consideration of whether there existed special circumstances permitting their use did not arise.
The primary judge correctly identified that the report of the expert was not used in the proceedings and accordingly it was caught by the implied undertaking. There is no error established in the primary judge’s approach to that document.
We are satisfied that there is merit to Grounds 4 and 7 in so far as it relates to the applicant’s affidavit and the transcripts.
Ground 6: Failure to give reasons for key judicial decisions
In support of this ground, the applicant contends as follows:
42.Ground 6: Failure to Give Reasons for Key Judicial Decisions His Honour failed to provide reasons for the refusal of procedural applications, including the dismissal of the [applicant’s] subpoena request, depriving the [applicant] of an intelligible basis for appellate review…
(As per the original)
Numerous authorities, including those cited by the applicant in his Summary of Argument, make obvious that the extent of reasons depends upon the particular case under consideration and the matters in issue (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33). Here, the issue involved a discrete ex tempore determination as to whether certain documents were available to the parties to use in other proceedings and the determination of various incompetent orders sought by the applicant as addressed in earlier grounds.
It is specious to contend that the applicant or this Court could not divine the basis of the primary judge’s decision (Candle & Falkner (2021) FLC 94-069 at [97]).
Ground 9: Error of law – improper judicial encroachment into other court proceedings
In support of this ground, the applicant contended that the primary judge erred at law in granting part of the respondent’s application and by making observations that, “appear directed toward influencing how other judicial officers should interpret those materials” (applicant’s Summary of Argument filed 11 June 2025, paragraph 63).
The Summary of Argument otherwise repeated submissions made in aid of other grounds and included a rambling discursive narrative of numerous complaints about the conduct of the respondent which were the subject of the primary judge’s final orders made 5 April 2024 from which the applicant unsuccessfully appealed. None of these matters have any relevance to the determination by the primary judge and none point to, let alone establish, error.
No part of the primary judge’s determination could possibly be interpreted as an attempt to influence another judicial officer.
DISPOSITION
We are satisfied for the reasons above that the applicant has established error on the part of the primary judge in the terms of Grounds 4 and 7 in so far as it relates to the use of the applicant’s affidavit and the transcripts.
An applicant for a grant of leave to appeal must do more than just establish error, they must demonstrate that a substantial injustice would be occasioned if leave were not granted. We are not satisfied that the applicant has established that he would suffer a substantial injustice. The affidavit and transcripts are not caught by “the implied undertaking” and there is no order restraining their use. Consequently, there is no restriction, providing they fall within the exceptions under Pt XIVB of the Act and Pt 11A of the WA Act. Where the applicant has not demonstrated that he would suffer a substantial injustice, there is no warrant to grant leave.
For these reasons, leave is refused and the Notice of Appeal will be dismissed.
COSTS
The respondent sought costs in the event the appeal was unsuccessful in the sum of $350. The applicant opposed an order, contending that he had no capacity to pay even a sum as modest as $350.
The Act proscribes that each party pays their own costs, subject to the provisions of s 114UB(2) which permits the Court to make such orders as to costs as it considers just if there are circumstances which so justify. No one matter set out in s 114UB(3) of the Act is determinative.
While the applicant contends that he has no capacity to pay, impecuniosity is not a bar to the making of a costs order (Nada & Nettle (Costs) (2014) FLC 93-612; Northern Territory v Sangare (2019) 265 CLR 164). The applicant was partially successful in demonstrating error on the part of the primary judge, albeit we were not satisfied that leave should be granted.
For these reasons, we are not satisfied that there is sufficient circumstance to depart from the rule that parties are to pay their own costs of the proceedings. As such, the respondent’s oral application for costs will be dismissed.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Schonell. Associate:
Dated: 20 August 2025
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