JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE DPRS; EX PARTE DPRS [2025] WASC 435
CORAM: SMITH AUJ
HEARD: 18 AUGUST 2025, 29 AUGUST 2025 & BY WRITTEN SUBMISSIONS FILED 10 SEPTEMBER 2025
DELIVERED : 10 OCTOBER 2025
FILE NO/S: CIV 1634 of 2025
MATTER: IN THE MATTER OF DPRS
EX PARTE
DPRS
Applicant
Catchwords:
Judicial review - Urgent application for a stay of orders made by a Magistrate and an injunction prohibiting transfer of a property - Jurisdiction - Family Law - Whether Supreme Court has jurisdiction to review decisions of a judicial officer exercising federal jurisdiction invested by the Family Law Act 1975 (Cth)
Legislation:
Family Court Act 1975 (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Result:
Application for urgent interlocutory relief dismissed
Application for judicial review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
Solicitors:
| Applicant | : | N/A |
Cases referred to in decision:
B v M [2024] WASCA 34
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
G v B [2024] WASCA 158
Hayes v O'Sullivan [2001] WASC 55; (2001) 24 WAR 40
Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123
LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
S v S [2024] FCWAM 240
S v S [2025] FedCFamC1A 44
SMITH AUJ:
The applications for urgent stay of orders and judicial review
The applicant applies for judicial review of decisions made by Magistrate Hall on 4 October 2024 (and subsequent orders made on 5, 18 and 20 December 2024). The application was filed on 18 June 2025 and requires an extension of time in respect of orders made on 4 October, 5 December and 18 December 2024.
The applicant principally seeks to challenge orders made in relation to the financial proceedings, made in the exercise of federal jurisdiction under the Family Law Act 1975 (Cth) in respect of an application made by the applicant's wife for an alteration of property interests following the breakdown of their marriage. Some of the orders sought to be challenged by the applicant also concern parenting orders.
On 18 August 2025, I heard an urgent application for a stay of the orders, and an injunction prohibiting the settlement of the sale of a property in Mandurah, the subject of the orders, as settlement of the sale was due to occur later that day.
After hearing the application, I dismissed the application for urgent relief. I then informed the applicant that if he wished to pursue his application for judicial review, he would have to first satisfy this court that it has jurisdiction to review a decision of a magistrate when making orders in respect of property of parties to a marriage under the Family Law Act.
After the applicant notified the court he wished…
Continue reading Re DPRS
Sign in free to access the full text
- AGLC
- Re DPRS [2025] WASC 435
- Case
- [2025] WASC 435
- Decision Date
CaseChat Overview and Summary
The court held that the jurisdiction of a magistrate in respect of such matters was exclusive, thereby excluding the jurisdiction of the Supreme Court to make orders on the same subject matters. The court reasoned that pursuant to section 38 of the Family Court Act, a court of summary jurisdiction constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested by or under the Commonwealth Family Law Act. Furthermore, the court clarified that a decision involving jurisdictional error is one that has been made outside the jurisdiction of the decision-maker, meaning the decision-maker either made a decision outside the limits of the functions and powers conferred on them or did something they lacked the power to do. This principle was applied in Bajaj v Magistrate Trevor Darge.
In light of the above, the court concluded that any legal errors made by the magistrate must be material to justify the Supreme Court interfering with the primary orders. The court held that in the context of judicial review for jurisdictional error, including a failure to accord procedural fairness, generally, the error must be material to the decision made in fact, meaning there must be a realistic possibility that the decision could have been different if the error had not occurred. The court found that the jurisdiction of the Supreme Court to supervise a decision made by a judicial officer does not extend to reviewing whether the decision-maker has incorrectly decided something which the decision-maker is authorised to decide.
The Supreme Court dismissed the applicant's application for a stay of orders and an injunction, thereby upholding the orders made by the magistrate.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
To describe a decision as 'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction.[12] That is, the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks the power to do.[13][12] Hossain v Minister for Immigration [2018] HCA 34; (2018) 264 CLR 123 [24] (Kiefel CJ, Gageler & Keane JJ).[13] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J). The jurisdiction of the Supreme Court to supervise a decision made by a judicial officer does not extend to reviewing whether a decision‑maker has incorrectly decided something which the decision‑maker is authorised to decide. Jurisdictional error arises if the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks power to do.[14][14] Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] (Hayne J); applied in Bajaj v Magistrate Trevor Darge [2021] WASCA 218. In addition, in respect of any legal errors which the judicial officer might have made must be material in order to justify this court interfering with the primary orders. In the context of judicial review for jurisdictional error, including a failure to accord procedural fairness, it is recognised that generally error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[15] Materiality in this sense must also generally be demonstrated before an error of law will justify this court on appeal disturbing the orders made by a primary court.[16] Pursuant to s 38 of the Family Court Act a court of summary jurisdiction constituted by a magistrate or a family law magistrate has the federal jurisdiction with which it is invested by or under the Commonwealth Family Law Act. For reasons that follow, the jurisdiction of a magistrate in respect of alteration of property interests and parenting orders made pursuant to the Family Law Act is exclusive in the sense that it excludes the jurisdiction of the Supreme Court of Western Australia to make orders in respect of the same subject matters. Section 8 of the Family Law Act provides that proceedings by way of a 'matrimonial cause' shall not be instituted except under the Family Law Act. 'Proceedings' are defined in s 4 to mean 'a proceeding in a court, whether between parties or not'. A 'matrimonial cause' is defined in s 4 of the Family Law Act to relevantly include:[17](ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:(i)arising out of the marital relationship;[17] (my emphasis). The Family Court (WA) (and a magistrate in Western Australia) is invested with exclusive federal jurisdiction under s 8 of the Family Law Act in respect of subpar (ca)(i) of the definition of matrimonial cause in s 4(1).[18][18] Family Law Act 1975 (Cth) s 4 'matrimonial cause' (ca(i)).