SOURAKI AZAD - [2024] WASC 433

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   SOURAKI AZAD [2024] WASC 433
CORAM:   HOWARD J
HEARD:   29 OCTOBER 2024
DELIVERED          :   21 NOVEMBER 2024
PUBLISHED           :   21 NOVEMBER 2024
FILE NO/S:   CIV 1446 of 2024

EX PARTE
MOHAMMAD AMIN SOURAKI AZAD
Applicant by Ex Parte

Catchwords:

Judicial review – Ex-parte application for review order under s 36(1) of the Magistrates Court Act 2004 (WA) - Where Magistrate made an order for a violence restraining order against the applicant - Whether the Magistrate made an arguably reviewable error – No arguable error shown - Application dismissed

Legislation:

Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant by Ex Parte

In Person

Solicitors:

Applicant by Ex Parte

In Person

Cases referred to in decision(s):

Akers v Minister for Immigration Local Government and Ethnic Affairs (1988) 20 FCR 363
Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development (2023) 414 ALR 26
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Rayney v AW [2009] WASCA 203
Seiffert v The Prisoners Review Board [2011] WASCA 148
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561
SZFVL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 747

HOWARD J:

By an ex-parte application filed 23 April 2024, the applicant seeks a review order pursuant to s 36(1) of the Magistrates Court Act 2004 (WA). The application was supported by his 'affidavit' dated 15 March 2024 and filed 23 April 2024.
I say 'affidavit' as the document was not regularly made. However, I have treated it, for present purposes, as the evidence which the applicant wishes to give on his application.
The applicant's affidavit is written as though it is addressed to the former President of the State Administrative Tribunal. I do not know why that is so.
I note that the applicant is not legally represented and that may explain why a good deal of his affidavit in support appears to be more in the nature of submissions than evidence.
To try and avoid confusion, I use 'applicant' from here to refer to the applicant for the review order in this Court, and 'VRO applicant' to refer to the applicant for the Violence Restraining Order in the Magistrates Court (against the applicant).
I have proceeded on the basis that the applicant seeks a review order in relation to:
1.a decision made by her Honour, Magistrate Webb, on 29 February 2024 to make a Violence Restraining Order (VR Order). The VR Order was annexed as DSRO‑10 to the applicant's affidavit; and
2.a costs order in favour of the VRO applicant in the sum of $9,000.[1] (together the orders)
[1] Annexed as DSRO-9 to the affidavit of the applicant.
The orders made on 29 February 2024 followed a contested hearing on 5 February 2024. Initially the transcript of that hearing was not before the Court. The applicant had deposed to being unable to afford transcripts of the hearings on 5 and 29 February 2024.[2] The Court obtained those transcripts and supplied them to the applicant well before the hearing on 29 October 2024.
[2] [26] at page 22 of the applicant's affidavit.
The transcript of an ex parte hearing before a different Magistrate at Perth on 4 January 2024 was annexed to the applicant’s affidavit.[3] As I understand it, however, no application is made in relation to the hearing on 4 January 2024.
[3] Annexure DSRO-5 to the affidavit of the applicant.
The Magistrate summarised the background to the VRO application in the following way:
The respondent is a medical doctor and has or had matters proceeding through the SAT. These proceedings were before her Honour Pritchard J, and at the relevant time the [VRO] applicant was the associate to her Honour.
I am not aware of the nature of those proceedings in the SAT, and in any event those proceedings are not relevant to the matter before me. The respondent was self-represented in the SAT proceedings. Prior to the proceedings in the SAT, the parties were unknown to each other. On the evidence, it was apparent that the proceedings in SAT had been lengthy with a number of court appearances and, by necessity, there was regular contact between the respondent and [the VRO applicant].[4]
[4] ts 76 on 29 February 2024.
The application for the review order advances 12 grounds which are as follows:
1)Error of Law: Magistrate erred by failing to provide adequate reasons for her final VRO decision.
2)Error of Law: Erroneous interpretation of my explanatory letters (Letter 6, Letter 8(1) - 8(4))—which were intended to fulfil my duty to provide some necessary explanations and clarifications about the events to the Chamber of one of the most senior justices of the Supreme Court of Western Australia, who is at the same time the President of SAT and was presiding over my matter—as a form of continued personal violence towards [the VRO applicant]!, and even as a breach of the interim VRO issued on January 4th.
3)Significant Error of Fact: Reliance on a fabricated story of me receiving and disregarding a warning from SAT Security in relation to some unknown and unspecified alleged conduct towards [the VRO applicant], without even providing a date for it.
4)Apprehension of Bias: The Magistrate retaliatory conducts to the contents of Paragraph 38 - 41 of the Letter 8(4) to the Honourable Justice Pritchard where the Plaintiff deemed the intervention of an "Inferior Court Magistrate", into the affair of a "Superior Court Senior Justice's Chamber" irrelevant & meaningless.
5)Error of Law: the Magistrate failed to identify as how and according to what legal justification she had arrived at the conclusion of the "Stalking" by the Plaintiff.
6)Abuse of Process: the Magistrate conduct has been an abuse of process for ulterior motives, and has not been taken independently.
7) Departure From Impartiality
8) Error of Law - Relying on ambiguous and significantly inconsistent evidence presented by the 2nd Defendant (Applicant of the VRO matter at the Magistrates Court): It is evident through the strong evidentiary materials, that the 2nd Defendant offered false and misleading evidence in the course of the VRO proceeding, both while under oath within the hearing, and in her affidavit (DSRO-1). This evidence warrants close examination by the court due to the particular circumstances of this case.
9) Depriving the Plaintiff from the Procedural Fairness – Neglecting the 2nd Defendant's Solicitor's Misconduct in the hearing: The solicitor's manipulation of evidence during the hearing, to which the Plaintiff strongly objected, was overlooked by the Magistrate. The Plaintiff's objections were dismissed without due consideration.
10) Error of Law – Magistrate's Disregard for the Significance of Honourable Justice Pritchard's Perspective about the matter: The Magistrate erred in considering the legal significance of the views of The Honourable Justice Pritchard regarding the overall interactions between the Plaintiff and [the VRO applicant] (Her Honour's former Associate), particularly when Her Honour did not find any wrongdoing or breaches on Plaintiff's behalf.
11) Legal Unreasonableness: The issuance of an unreasonable cost order amounting to $9,000, against the Plaintiff, who was the respondent (he was not the applicant!) of that matter, who is inherently tasked with defending himself against a claim in any jurisdiction.
12) Violation of Natural Justice Principles: This was evidenced, as recently outlined by Stavrianou DCJ in Cullen v Woodside Energy, by dismissing the applicant's request for a postponement of the final hearing due to simultaneous engagements with other matters Cullen v Woodside Energy Ltd [2021] AWR 20-698; [2021] WADC 56 while the interim order would have remained in place. Furthermore, the applicant was compelled to proceed with the final hearing on the scheduled date despite having indicated his inability to adequately prepare due to having seven other hearings on the same week, as well as his gradual recovery from a mental health breakdown.
(citations omitted; all emphases in the original)
During the course of the hearing on 29 October 2024, the applicant withdrew grounds 1, 4, 5, 6 and they are not considered further.
In addition to the transcripts, this Court had before it the VRO applicant’s affidavit made on 4 January 2024 (VRO affidavit),[5] which was before the Magistrate on 5 and 29 February 2024.
[5] Annexure DSRO-1 to the applicant's affidavit.
The VRO affidavit attached:
1.(amongst other things) a letter which the applicant sent to the (then) President of the State Administrative Tribunal on 23 December 2023;[6] and
2.an email which the applicant sent to the VRO applicant's father on 31 December 2023.[7]
[6] The letter commences under the heading of 'Applicant's Letter 6' at page 47 of the applicant's affidavit.
[7] Annexed as DSRO-1 at page 62 of the applicant's affidavit.
In addition, I note in particular, the following paragraphs of the applicant's affidavit:
12)05/02/2024: The case was brought before a magistrate at the Central Law Courts building in the morning. I discussed the conflict with another hearing scheduled for the same day, my unpreparedness for this case due to gradually recuperating from a mental health breakdown, as well as a hectic schedule with 7 hearings that week, and requested the final hearing be postponed to a later date within the next three to four weeks since the interim order was already in effect and the situation remained unchanged. Despite this, due to the opposing party's insistence on an expedited final hearing to address "[the VRO applicant's] excessive and disabling distress!", the magistrate decided to transfer the case to another magistrate for trial. After a waiting period of approximately two hours, during which I managed to attend the hearing of my other matter before a different magistrate in the same building, the trial hearing commenced with Magistrate Webb. Throughout the trial on 5^th February 2024, I observed some astonishing and completely unexpected behaviours from [the VRO applicant] and her family! Additionally, the conduct of the opposing party's legal representative raised concerns, notably the unexpected manipulation of evidentiary materials. Parts of my letters to the Chamber of the Honourable Justice Pritchard were omitted, resulting in the presentation of incomplete evidence to the magistrate. Magistrate Webb dismissed my objections to these actions. At the end of a 3-4 hour hearing session, and after checking the availability of all parties, including the applicant and her representative, as well as the respondent of the matter, Magistrate Web stated that she will release the final judgement on 29^th February 2024, in the presence of parties to make their final oral submissions.[8]
13)29/01/2024: With only Mr David Manera in attendance to represent the opposition, Magistrate Webb delivered the Judgment, as well as an unusual cost order (DSRO-9) of $9,000! against me. A unique aspect of this unusual hearing was that, unlike all other hearings of this nature, Magistrate Webb issued her judgment first, then requested submissions from the parties! To my understanding, this approach is atypical. Typically, if there is a final hearing to release the judgment, a judge would permit both parties to present their final submissions before the announcement and reading of the judgment. This process allows for any last minute information that could potentially influence the judge's decision.[9]
2)The dire need for intervention by the WASC - the matter of investigation:
…
iv.Magistrate Webb's questionable leniency towards certain breaches and unacceptable behaviours of opposing party and their lawyer during the hearing and disregarding my objections, while imposing undue restrictions on my right to express myself or even present my points, among other issues were apparent from the outset.
v.The final judgment was rendered based on reasons that appeared both absurd and somewhat comical, such as interpreting my explanatory letters (Letter 6, Letter 8(1) - 8(4))- which were intended to fulfil my duty to provide some necessary explanations and clarifications about the events to the Chamber of one of the most senior justices of the Supreme Court of Western Australia, who is at the same time the President of SAT and was presiding over my matter-as a form of continued personal violence towards [the VRO applicant]!, and even as a breach of the interim VRO issued on January 4^th!
vi.Another staggering falsehood of this faulty Magistrate, was her absurd reliance on a fabricated noble story of me receiving and disregarding a warning from SAT Security in relation to my conduct towards [the VRO applicant], without even providing a date for it!
vu.Upon witnessing the numerous unacceptable aspects of how the VRO matter was handled in this inferior court, the imposition of an exorbitant cost order of $9,000!, was the final straw. This cost order was issued against the respondent (not the applicant!), who is fundamentally tasked with defending himself against a claim in any jurisdictions. This claim, marred by a series of irregularities and instances of procedural unfairness, such as bizarrely interpreting a reassurance and preemptive apology letter to [the father of the VRO applicant] as an act of personal violence towards [the VRO applicant]! When compared to a prior occasion in which I, acting as the applicant in a superior court, faced a cost order of only $2,200 after losing an interlocutory application, for which there had been 2 hearings held before a Supreme Court Justice, this particular cost order severely disputes the magistrate's credibility.[10]
[8] Page 14 of the applicant's affidavit (all emphases in the original).
[9] Page 14 of the applicant's affidavit (all emphases in the original).
[10] Pages 20 - 21 of the applicant's affidavit (all emphasis in the original).
In addition to his affidavit, the applicant sent an email dated 18 October 2024 to this Court which attached the following letters, each of which was addressed to Pritchard JA, then President of the State Administrative Tribunal:
1.2301XDSAT-LET 5B[11] (sent on 19 November 2023): applicant's letter 5B;
2.2301XDSAT-LET 6[12] (sent on 23 December 2023): applicant's letter 6;
3.2301XDSAT-LET 8(1) (sent on 11 January 2024): applicant's letter 8(1);
4.2301XDSAT-LET 8(2) (sent on 12 January 2024): applicant's letter 8(2);
5.2301XDSAT-LET 8(3) (sent on 24 January 2024): applicant's letter 8(3);
6.2301XDSAT-LET 8(4) (sent on 13 February 2024): applicant's letter 8(4); and
7.2301XDSAT-LET 9 (sent on 22 January 2024): applicant's letter 9.
[11] I have taken the descriptions of these documents from the applicant's email of 18 October 2024.
[12] I note that this letter was also attached to his affidavit (commencing at p 47).
I have read each of these letters.

Applicable principles

As said, the applicant seeks a review order under s 36(1) of the Magistrates Court Act.[13]
[13] Unless otherwise indicated, all statutory references from here are to the Magistrates Court Act 2004 (WA).
I have proceeded on the basis that the applicant is an 'aggrieved' person by the orders made and so brings his application within s 36(1)(c)(i) and, or, (ii).[14]
[14] The applicant referred to the review application as a writ of certiorari: ts 4 and 7 on 29 October 2024.
The powers or outcomes available to the Court on the application for a review order are set out in O 56A r 3(2).
I have taken the following, relevantly applicable principles from Rayney v AW:[15]
[15] Rayney v AW [2009] WASCA 203 [25] ‑ [27], [31] (McLure JA for the Court).
1.s 36 is a judicial review power;
2.s 36(3) when read with s 36(1) provides the source and scope of this Court's power to make a review order;
3.judicial review as a supervisory function is distinct from an appeal or other review of the merits;
4.judicial review concerns itself solely with the legality of decisions and the focus is on jurisdictional errors;
5.the common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals;
6.the purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the Acts or omissions of officers of the Magistrates Court;
7.a review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted;
8.satisfying the threshold for an error of a type identified in s 36(1)(c) is a precondition to the exercise of the power to grant a review order. Before a review order can be made the decision-maker must have made (at least) an arguably reviewable error;[16] and
9.the expression 'that is just' in s 36(3) empowers this Court in appropriate circumstances to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.
[16] See also Bajaj v Magistrate Trevor Darge [2021] WASCA 218 at [47] (Beech & Vaughan JJA); Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development (2023) 414 ALR 26 at [17] (Buss P, Mitchell & Beech JJA).

Ground 2

The applicant contends that the Magistrate made an error of law in adopting an erroneous interpretation of his letters 6, 8(1) - 8(4). As noted above, some of these were annexed to the applicant's affidavit but all of them were sent to this Court by the applicant’s email of 18 October 2024. In this Ground I refer to the five letters simply as the letters.
The assertion of an incorrect interpretation of the letters is not a promising start to a ground asserting a reviewable error.
The Magistrate, in describing these letters, commented, 'the respondent also sent lengthy letters addressed to her Honour Pritchard J discussing his feelings and admiration for the applicant.'[17]
[17] ts 77 on 29 February 2024.
The Magistrate said:
There was no issue that he believed he loved the applicant, and he relied upon those feelings to justify his contact with the court… .[18]
[18] ts 78 on 29 February 2024. The Magistrate read the letters sent as the applicant expressing 'his feelings, love and regard of the applicant': ts 81 on 29 February 2024.
Of the applicant's letters 8(1), 8(2) and 8(3), her Honour correctly noted that they were sent to the Tribunal after the restraining order had been granted and served upon the applicant.[19]
[19] ts 79 on 29 February 2024.
By reference in part to the letters, her Honour said of the applicant's position at trial:
… It was apparent that he did not either understand or regard his conduct as inappropriate.[20]
[20] ts 79 on 29 February 2024.
The Magistrate held that she was satisfied on the evidence that there were reasonable grounds to apprehend that the applicant (in this Court) would continue to commit personal violence against the VRO applicant unless restrained. That was on the basis that notwithstanding that a VRO order had been made and served on the applicant on 4 January 2024, he continued his correspondence to the Tribunal and to the VRO applicant's father or directly.[21]
[21] ts 81 on 29 February 2024.

During the hearing on 29 October 2024, the applicant submitted that the Magistrate made an error of law as the letters were sent to President Pritchard 'to explain the situation'[22] rather than attempting to 'violate' the former associate.[23]
[22] ts 22 on 29 October 2024.
[23] Note: at the hearing on 29 October 2024, the applicant later changed this Ground to be a mistake of fact, rather than mistake of law: ts 24.
The applicant submitted[24] that the letters he sent should be passed to the VRO applicant as a matter of fairness as they were a party to the discussion. Indeed, in one of the letters he stated:
Should [the VRO applicant] no longer be part of the chamber at the time this letter is filed, I request that it be forwarded to her, as it directly pertains to her. I believe it is her right to read and be aware of the contents of this letter.[25]
[24] ts 23 on 29 October 2024.
[25] [32] at page 14 in the applicant’s letter 6.
The applicant submits that it was necessary for the contents of these letters to be provided to the President of the SAT because they pertained to his 'legal arguments' in his substantive matters in the SAT.[26]
[26] ts 23 - 24 on 29 October 2024.
At the hearing, the applicant was asked how the Magistrate mischaracterised the letters and what he said was the Magistrate's error.[27] The applicant maintained that the letters were his legal argument for his substantive hearing in the SAT.
[27] ts 23 on 29 October 2024.
I find that it was open for the Magistrate to use the letters in the way that she did in her decision.
The question is not whether I agree with the Magistrate, but rather whether there is an apparent arguable reviewable error.
I find that the Magistrate's use and interpretation of the letters was open to her and I do not detect any arguable error as contended for by the applicant under this Ground.

Ground 3

As I understood it, the complaint in this Ground is that the Magistrate, in her reasons, stated of a period towards the end of 2023 that:
The [the VRO applicant's] concern about this behaviour was also raised with court security. Court security sent a warning letter to the respondent about his behaviour and contact with the applicant on 22 December 2023.[28]
[28] ts 77 on 29 February 2024.
Following her Honour giving her reasons on 19 February 2024, the applicant told the Magistrate that:
… your Honour made a decision according to erroneous information… there is a very clear error in your Honour's judgment, that I was not ever warned about security, about anything… .[29]
[29] ts 82 on 29 February 2024.
At the hearing before me on 29 October 2024, the applicant maintained that he had not received any letter from Court security[30] and requested the Court to provide that 'evidentiary material'.[31]
[30] ts 9 on 29 October 2024.
[31] ts 9 on 29 October 2024.
I have taken the applicant's Ground 3 to be that the Magistrate made a mistake of fact and therefore, it is said, a jurisdictional error in describing the letter sent to him on 22 December 2023.
After reviewing the transcripts and the documents that were put before the Magistrate, it appears that the applicant is correct and no letter was sent by Court security to the applicant. Rather, it appears that the letter the Magistrate was referring to was an email sent to the applicant by the Associate to President Pritchard on 22 December 2023.[32]
[32] Annexed as part of DSRO-1 to the applicant's affidavit.
The email said words to the effect that it had come to President Pritchard's attention that the applicant had attempted to contact the VRO applicant via her social media accounts and that she was not to be contacted again.
While the VRO applicant gave evidence before the Magistrate that she had discussed her concerns with Court security,[33] she did not give evidence of Court security writing to the applicant. There was, then, a clear evidential basis for the Magistrate to find that the VRO applicant had raised concerns with Court security and the applicant had been told by the Tribunal not to contact the VRO applicant.
[33] ts 10 - 14 on 5 February 2024.
However, I find that the Magistrate did make a mistake of fact. No letter was sent from Court security to the applicant.
Although the Magistrate made a mistake of fact, on the material before me, I find that this does not amount to an arguable jurisdictional error and nothing, it appears, turns on this error of fact. Rather, the significance of her Honour's finding as quoted in paragraph 35 above was to highlight the VRO applicant's concerns and the factual finding to that point, leaving aside the error, was open and made without reference to any letter from Court security.
Further, the Magistrate did not, it appears, in her reasons rely on any letter from Court security when assessing the applicant's likelihood of continuing to attempt to contact the VRO applicant. Rather, as noted under Ground 2 above, her Honour made that finding by reference to the correspondence which the applicant sent after being served with the VR Order on 4 January 2024.

Mistake of fact does not amount to jurisdictional error

A factual error is unlikely to be a jurisdictional error.[34] The Court will not set aside a decision on a mistake of fact that is 'so insignificant that the failure to take it into account could not have materially affected the decision'.[35]
[34] Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [35] (McHugh J): this was discussed in the context of a decision of a tribunal.
[35] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J).
McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [35] said:
A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
A mistake of fact can amount to a jurisdictional error if it is so fundamental that it caused the decision maker to fail to consider a mandatory relevant consideration or results in a misapprehension which amounts to an improper exercise of power.[36]
[36] Seiffert v The Prisoners Review Board [2011] WASCA 148 [195] (Martin CJ) citing Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 and Akers v Minister for Immigration Local Government and Ethnic Affairs (1988) 20 FCR 363, 373; Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561, 573.
A mistake of fact can amount to a jurisdictional error if the mistake of fact affects the outcome of the decision[37] or where establishing a fact is important for reaching a conclusion and there is no evidence to support that specific finding.[38]
[37] SZFVL v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 747, 760 [22] (Driver FM).
[38] Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389, 413 [92] (Tracey J).
Here, nothing turned on the Magistrate's mistake as to who sent the email (or ‘letter’). It is clear the Magistrate relied on the substance of the email.
The Magistrate relied on the 'letter' dated 22 December 2023 to the extent that it provided background and context to the VRO applicant's application. At its highest, the Magistrate used the letter as demonstrating the applicant had received a warning from the Court to not contact the VRO applicant. I find that it could have made no difference to the Magistrate's decision if the letter was sent by President Pritchard's Chambers or Court security.
In all of the circumstances, I do not consider that a fair reading of the Magistrate's reasons in this respect discloses an arguable ground for review. I do not consider it arguable that the mistake of fact here could amount to a jurisdictional error.

Ground 7

As I understand it, the complaint made here is that the VRO applicant (through her solicitor) provided incomplete material to the Court in that the last two pages of the applicant's letter 8(1) were missing.[39] The applicant said that he had objected at the hearing before the Magistrate to that occurring.[40] It was unclear in the hearing in this Court whether the applicant contended that the Magistrate had disregarded the 'missing' material or had disregarded his objection.[41]
[39] ts 10 on 29 October 2024.
[40] ts 10 - 11 on 29 October 2024. Note at the hearing on 5 February 2024, the applicant said only the final page was missing: ts 57 - 58 on 5 February 2024.
[41] ts 10 - 11 on 29 October 2024.
The applicant accepted before this Court that he had been able to make submissions to the Magistrate which reflected the 'missing' pages.[42]
[42] ts 11 on 29 October 2024.
It was apparent that the principal complaint sought to be raised under this Ground involved the conduct of the solicitor for the VRO applicant, and the Magistrate not accepting that the solicitor's conduct in 'omitting' the two pages was deliberate.[43]
[43] ts 11 on 29 October 2024.
However, given the applicant's acceptance that he was able to make the submissions he wished to before the Magistrate[44] and that what was said to be missing were pages from his own letter 8(1), I do not detect that this Ground identifies an arguable ground of review.
[44] ts 11 on 29 October 2024.

Ground 8

The applicant asserts an error of law and says that the Magistrate relied on 'ambiguous and significantly inconsistent evidence presented by' the VRO applicant.
The application states:
It is evident through the strong evidentiary materials, that the [VRO applicant] offered false and misleading evidence in the course of the VRO proceeding, both while under oath within the hearing and in her [VRO affidavit]. This evidence warrants close examination by the court due to the particular circumstances of this case.
This Ground appears to assert an error of fact rather than error of law.
The applicant also submits the Magistrate was not impartial because the evidence did not support the Magistrate's decision in accepting the VRO applicant's oral evidence.[45]
[45] ts 19 on 29 October 2024.
The applicant submits that there is documentary evidence that disproves the evidence the VRO applicant gave orally during the hearing. The applicant did not identify specific evidence he says the Magistrate should not have accepted, but submitted that some of the statements within the VRO applicant's affidavit were incorrect.[46]
[46] ts 21 on 29 October 2024.
The Magistrate accepted the evidence of the VRO applicant and, with respect, I can detect no arguable error in her Honour doing so.
Again, the question is not whether another judicial officer would have accepted the evidence of the VRO applicant, but whether there is any apparent error identified in the way that the Magistrate did so.
I do not consider this Ground gives rise to an arguable ground of review.
The applicant further submitted that he was unable to properly cross‑examine the VRO applicant as: the VRO applicant's lawyer made a number of objections; he was unprepared; and the Magistrate had to intervene and ask the VRO applicant the applicant's questions.[47]
[47] ts 21 on 29 October 2024.
These complaints travel well beyond Ground 8.
In any event, I do not consider that any of these matters arguably disclose a reviewable error.
During the hearing before the Magistrate, the applicant had the opportunity to cross‑examine the VRO applicant. During cross‑examination, the applicant was able to put the statements he believed were incorrect to the VRO applicant.
The applicant commenced his cross-examination of the VRO applicant by asking questions directly to the witness. However, the VRO applicant became increasingly distressed as the cross-examination progressed and the applicant was directed to ask his questions through the Magistrate.[48]
[48] ts 21 on 5 February 2024.
In my assessment, for that process (of the applicant’s questions being put indirectly) to give rise to a reviewable error, the applicant would have had to have been deprived of a fair hearing before the Magistrate (by the adoption of the procedure). I have read the transcript of the hearing. In my view, there is nothing to suggest that the applicant was, in any way, prevented from asking the VRO applicant the questions he wished to and he was, in no way, deprived of an opportunity to test her evidence. On that basis, I do not detect an arguable reviewable error.
Although not expressly identified by the Magistrate, it appears that her Honour may have been exercising a power under s 44C(1) of the Restraining Orders Act 1997 (WA).
In any event, I consider that it was open to the Magistrate, in all of the circumstances, to adopt the procedure she did so as to ensure a fair trial. Directing the applicant to ask his questions 'through' the Magistrate was, in my view, open to the Magistrate to balance the applicant's interests in testing the VRO applicant's evidence, while at the same time seeking to minimise her distress and to allow her evidence to be taken fairly.
During the cross-examination, counsel for the VRO applicant objected to a number of the applicant's questions. After reviewing the transcript, I find that the objections made and the way that the Magistrate dealt with them were open and, in no way, detracted from a fair hearing to either the applicant or to the VRO applicant.
From a review of the transcript of the trial before the Magistrate, it is apparent, in any event, that the applicant's questions during the cross‑examination were largely directed to asking the witness how and why she felt uncomfortable and did not challenge the reliability or honesty of her evidence.
For the above reasons, I do not think that this Ground expanded in the way the applicant sought to do so at the hearing discloses any arguable ground of review.

Ground 9

By this Ground, as I understand it, the applicant says he was denied procedural fairness for the reasons also put in Ground 7.
I consider that for the reasons I set out under Ground 7 above, there is no arguable ground of review disclosed by the applicant's Ground 9.

Ground 10

The applicant asserts an error of law in that the Magistrate is said to have disregarded the significance of President Pritchard's 'perspective'.
As I understand the submission of the complaint, it is that:
1.President Pritchard did not consider that the applicant had misconducted himself with respect to the VRO applicant; and
2.the Magistrate should have taken that into account.
The applicant accepted in the hearing before this Court that there was no issue before the SAT or President Pritchard concerning the Restraining Orders Act.[49]
[49] ts 18 - 19 on 29 October 2024.
Even assuming that President Pritchard had made some 'finding', (which remained unidentified by the applicant in this Court and in the Magistrates Court) I do not consider that it was a matter that the Magistrate was required to take into account in the determination of the VRO application.
Of course, there are factual grounds for doubting that the President made some neutral or favourable assessment of the applicant's conduct given the communication from her Honour's Chambers to the applicant on 22 December 2023, as per paragraphs [39] - [41] above.
I do not consider that this Ground discloses any arguable reviewable error.

Ground 11

As I understand it, the applicant now puts his Ground 11 on the basis that there was no other error in the Magistrate's making of the VRO Order.
His submission is that no order should have been made as, in effect, a respondent to VRO application has to defend himself in such an application.
Further, and in the alternative, the dollar amount of the costs order made was excessive.
I do not consider that this Ground discloses any arguable ground of review. While, obviously enough, the applicant disagrees with the order made, the Magistrate having heard the trial was entitled to make the order as to costs made.

Ground 12

The applicant asserts under this Ground, as I understand it, that he was denied procedural fairness because the matter ought not to have proceeded on 5 February 2024 as he was not ready for the hearing.
The applicant accepted, as the transcript from the later hearing on 5 February 2024 confirms, that he did not request an adjournment before the Magistrate hearing the matter on that day.
In the hearing before this Court, rather, the applicant said that he had made such an application to another Magistrate. A transcript shows that the matter was first called on 5 February 2024 at about 9.13 am before her Honour Magistrate Scutt.
Before Magistrate Scutt, the applicant indicated that he had another proceeding at 10.30 am but otherwise he did not have an issue with the trial proceeding on that day.[50] It appears from the transcript that the matter was then called on before her Honour Magistrate Webb at about 11.24 am.
[50] ts 6 on 5 February 2024 at 9.20 am.
Like Magistrate Scutt earlier in the day, Magistrate Webb explained what a conduct agreement order was and after confirming that the applicant understood all of that asked whether he wanted to proceed to trial.[51] The applicant answered, 'Yes'.
[51] ts 6 on 5 February 2024 at about 11.30 am.
In the hearing in this Court, the applicant said he was not indicating to the Magistrate at that point that he was ready for the trial; but rather that if the alternative was a conduct agreement order, then he wished for the matter to proceed to a trial.[52]
[52] ts 5 on 29 October 2024.
Even accepting that, however, two fatal difficulties remain, in my view, for the applicant to establish an arguably reviewable error.
The first is that the applicant did not indicate to Magistrate Webb that there was any difficulty with the trial proceeding at that time.
Secondly, it appears when one reads the transcript before Magistrate Scutt and Magistrate Webb together, that whatever hearing the applicant had at 10.30 am did not prevent him from being present before Magistrate Webb, nor conducting the trial.
In my assessment, this Ground discloses no arguable reviewable error.

Disposition

For the reasons given above, I consider it plain that none of the remaining Grounds the applicant wishes to advance disclose an arguable reviewable error.
In all of the circumstances, I am not satisfied that it would be appropriate to grant a review order.
I dismiss the applicant's application under s 36(1) for a review order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
21 NOVEMBER 2024