JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOURAKI AZAD [2025] WASCA 124
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: ON THE PAPERS
DELIVERED : 22 AUGUST 2025
FILE NO/S: CACV 10 of 2025
BETWEEN: MOHAMMAD AMIN SOURAKI AZAD
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HOWARD J
Citation: SOURAKI AZAD [2024] WASC 433
File Number : CIV 1446 of 2024
Catchwords:
Violence restraining orders - Where appellant restrained from contacting applicant for a violence restraining order - Appeal from refusal of primary judge to grant the appellant a review order in respect of the violence restraining order - Whether leave to appeal should be granted - Turns on own facts
Legislation:
Criminal Code (WA), s 338D, s 338E
Magistrates Court Act 2004 (WA), s 35, s 36
Restraining Orders Act 1997 (WA), s 11A, s 12, s 13
Result:
Extension of time to appeal refused
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
Solicitors:
| Appellant | : | In person |
Case(s) referred to in decision(s):
LPDT v Minister for Immigration [2024] HCA 12; (2024) 280 CLR 321
Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Re Bajaj [2024] WASCA 149
Schaefer v Department of Housing [No 2] [2012] WASCA 229
JUDGMENT OF THE COURT:
Introduction
On 29 February 2024, the Magistrates Court of Western Australia granted an application for a violence restraining order (VRO) against the appellant under the Restraining Orders Act 1997 (WA) (RO Act). It is convenient to refer to the applicant for that order as the VRO applicant.
On 23 April 2024, the appellant made an ex parte application to the General Division of this court for a review order under s 36(1) of the Magistrates Court Act 2004 (WA) (MC Act). On 21 November 2024, the primary judge dismissed the review order application.
On 18 February 2025, the appellant appealed to this court from the order dismissing his review order application. The appeal was commenced out of time. Accordingly, an extension of time to commence the appeal is required. After some delay, the appellant filed his appellant's case on 25 July 2025, setting out ten grounds of appeal.
The appellant requires leave to appeal from the primary judge's order dismissing his application for a review order.[1] On 29 July 2025, after the appellant had filed his appellant's case, the court ordered that the application for leave to appeal be determined on the documents filed and without listing the matter for a hearing.[2] The appellant was provided with an opportunity to file further written submissions in support of his application for leave to appeal.
[1] Schaefer v Department of Housing [No 2] [2012] WASCA 229 [35].
[2] Pursuant…
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- SOURAKI AZAD [2025] WASCA 124
- Case
- [2025] WASCA 124
- Decision Date
CaseChat Overview and Summary
The legal issues in this appeal revolve around whether the primary judge erred in dismissing the appellant's grounds for review of the magistrate's decision to grant the VRO. The first ground of appeal argues that the primary judge erred in rejecting the appellant's claim that the magistrate mischaracterised his letters to the President. The second ground contends that the primary judge erred in not finding that a factual error made by the magistrate constituted a jurisdictional error. The third ground alleges that the magistrate demonstrated actual or apparent partiality, and that the primary judge failed to give due regard to this.
The court found that the primary judge's conclusion that the magistrate's use and interpretation of the letters was open to her and did not involve any error was correct. The court also found that the factual error made by the magistrate was immaterial and incapable of being viewed as a jurisdictional error. The court further found that there was no basis on which a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the question she was required to decide. Therefore, the appeal is without merit.
The court dismissed the appeal and made no orders for costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The compelling nature of the case for the making of a VRO to protect the VRO applicant informs the assessment of the merit of the appellant's claim for review on the ground of jurisdictional error. It is established that in most cases an 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.[19] The compelling case for the grant of a VRO makes this hurdle more difficult to overcome in the present appeal.[19] LPDT v Minister for Immigration [2024] HCA 12; (2024) 280 CLR 321 [2] - [7]. Appeal ground 1 contends that the primary judge erred in rejecting review ground 2, which argued that the magistrate mischaracterised the appellant's letters to the President.[20] The magistrate noted that the letters indicated that the appellant believed he loved the VRO applicant, relied on his feelings to justify his contact with the Tribunal and did not understand his conduct to be inappropriate. The primary judge held that the magistrate's use and interpretation of the letters was open to her and did not involve any error.[21] Nothing in the appellant's case provides any reason for doubting the correctness of the primary judge's conclusion.[20] Re Souraki Azad [2024] WASC 433 (primary decision) [21] - [34].[21] Primary decision [32] - [34]. The primary judge found that the magistrate made a factual error in the finding, quoted at [24] above, that court security sent a warning letter to the appellant about his behaviour and contact with the VRO applicant on 22 December 2023.[22] Appeal ground 2 in effect contends that the primary judge erred in failing to find that this error constituted a jurisdictional error which could justify setting the decision to grant the VRO aside.[22] Primary decision [42]. This ground of appeal is without merit. Having regard to the evidence and the magistrate's reasons for decision, there is no realistic possibility that the decision to grant the VRO could have been different if the factual error had not occurred. The immaterial factual error made by the magistrate is incapable of being viewed as a jurisdictional error that could justify setting the VRO aside. Appeal ground 3 in effect alleges that the magistrate demonstrated actual or apparent partiality, and that the primary judge failed to give due regard to this. The principles in relation to allegations of apprehended bias are well-established and need not be repeated here.[23] [23] We recently summarised the principles in Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 [79] - [80]. Having reviewed the transcript of the Magistrates Court proceedings, we see no basis on which a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the question her Honour was required to decide. Before the commencement of evidence, the magistrate provided the appellant with an explanation of the nature of the proceedings and the procedure to be adopted.[24] [24] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 5 - 7.