TAH v The Public Advocate
[2024] WADC 71
•30 AUGUST 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TAH -v- THE PUBLIC ADVOCATE [2024] WADC 71
CORAM: GETHING DCJ
HEARD: 23 JULY 2024
DELIVERED : 30 AUGUST 2024
FILE NO/S: APP 13 of 2024
BETWEEN: TAH
Appellant
AND
THE PUBLIC ADVOCATE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SCUTT
File Number : MC/CIV/PER/RO/4975/2023
Catchwords:
Appeal from Magistrates Court - Restraining Orders Act 1997 - Appellate jurisdiction of the District Court when a conduct agreement order is made - Whether exceptional circumstances exist to warrant the grant of leave to adduce additional evidence
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(4)(b), s 40(5)
Restraining Orders Act 1997 (WA), s 10H, s 64
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Ms C J Hannah |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | CJH Legal |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208; (2020) 56 WAR 263
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Connor v Veitch [2023] WASCA 186
G v O [2022] WASCA 23
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Grossetti v Grossetti [2011] WADC 78
House v The King (1936) 55 CLR 499
JC v TH [2024] WADC 58
Jones v Darkan Hotel [2014] WASCA 133
Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12
Marks v Coles Supermarkets [2021] WASCA 176
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Modern Holdings Pty Ltd v Scentre Management Ltd [2022] WASC 19
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Naidoo v Naidoo [2005] WADC 41
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Nugawela v American Express Australia Ltd [2016] WADC 170
Ogbonna v CTI Logistics Ltd [2021] WASCA 21
Ogbonna v CTI Logistics Ltd [2021] WASCA 22
Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Reynolds v Rayney [2023] WASCA 144
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550
Saunders v The Public Trustee [2015] WASCA 203
Scolio Pty Ltd v Cote (1996) 6 WAR 475
Seddone v Commonwealth Bank of Australia [2024] WASCA 70
Shilkin v Taylor [2011] WASCA 255
Smart v Power [2019] WASCA 106
Smart v Prisoner Review Board (WA) [2012] WASC 48
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
GETHING DCJ:
Introduction
The Appellant (whom I will sometimes refer to by her initials TAH) is the mother of a now 37‑year‑old man, whom I will refer to as 'GG'. GG has a diagnosis of autism spectrum disorder, and also suffers from severe anxiety, attention deficit hyperactivity disorder and a pervasive development disorder.
GG has in the past been, and is currently, subject to a guardian and administration order from the State Administrative Tribunal (SAT). The most current order was made on 27 September 2023 (SAT Order).[1] The SAT Order declared that GG was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, in need of oversight, care or control in the interest of his own health and safety, and in need of a guardian. The Public Advocate was appointed his limited guardian, whose functions included deciding where GG is to live, whether permanently or temporarily.[2]
[1] The Magistrates Court file is before the District Court by way of an electronic matter book. References to pages of the Matter Book will be 'MB #'. The SAT order is at MB 133.
[2] The full terms of the SAT Order are set out at [27].
Over the past 10 years, there have been ongoing issues between the Appellant and GG's guardians from time to time. A recurring issue has been the Appellant's attempts to remove GG from accommodation arranged by his guardian. The most recent incident occurred on 26 September 2023 when GG was an inpatient at St John of God Hospital, Midland.
As a consequence of the incident on 26 September 2023, on 29 September 2023 the Public Advocate applied for a Family Violence Restraining Order (FVRO) seeking to protect GG from actions by the Appellant (Application). The same day, a magistrate made an interim FVRO in the terms sought (the Interim FVRO). The most significant clause of the Interim FVRO was to restrain the Appellant from removing GG from 'the hospital, respite, permanent or emergency accommodation arranged by or consented to by the guardian and not to encourage or facilitate or enable [him] to leave the accommodation'.[3]
After being served with the Interim FVRO, the Appellant objected, leading to a final order hearing being listed for 8 February 2024. In lieu of a final FVRO, a conduct agreement order was made binding the Appellant and protecting GG (Conduct Agreement Order).[4] The terms of the Conduct Agreement Order were identical to the Interim FVRO. Its duration was one year from 18 October 2023. As the Appellant was in court, the order had immediate effect.
The Appellant now appeals to the District Court (Appeal). In substance, she wants the District Court to set aside the Conduct Agreement Order.
For the reasons which follow, I decline to do so, and dismiss the Appeal.
Legislative framework
[3] MB 34.
[4] MB 62.
The power of the Magistrates Court to make a FRVO is contained in the Restraining Orders Act 1997 (WA) (ROA) s 10D in the following terms:
10D.When FVROs may be made
(1)A court may make an FVRO if it is satisfied that -
(a)the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
(b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
(2)If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.
(3)For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.
The term 'family violence' is defined in ROA s 5A:
5A.Term used: family violence
(1)A reference in this Act to family violence is a reference to -
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) the following -
(a)an assault against the family member;
(b)a sexual assault or other sexually abusive behaviour against the family member;
(c)stalking or cyber‑stalking the family member;
(d)repeated derogatory remarks against the family member;
(e)damaging or destroying property of the family member;
(f)causing death or injury to an animal that is the property of the family member;
(g)unreasonably denying the family member the financial autonomy that the member would otherwise have had;
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
(ha)coercing, threatening, or causing physical abuse, emotional or psychological abuse or financial abuse, in connection with demanding or receiving dowry, whether before or after any marriage;
(i)preventing the family member from making or keeping connections with the member's family, friends or culture;
(j)kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
(k)distributing an intimate image of the family member without the family member's consent, or threatening to distribute the image;
(l)causing any family member who is a child to be exposed to behaviour referred to in this section.
(3)For the purposes of this Act, a person who procures another person to commit family violence is taken to have also committed the family violence.
The persons who may make an application for a FVRO relevantly include 'if the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, … the guardian on behalf of the person'.[5] Such an application by a guardian 'will be taken to have been made in the name of the Public Advocate'.[6] In a case like the present one, the application is to be made in accordance with the rules of court for the Magistrates Court.[7]
[5] ROA s 24A(2)(b).
[6] ROA s 24A(2A)(c).
[7] ROA s 24A(3)(c).
The first hearing of an application for a FVRO may, at the election of the applicant, be held in the absence of the respondent.[8] The court will then proceed to fix a hearing date.[9] At this hearing, 'the applicant may provide evidence by affidavit in support of the application and the court must accept such affidavit in support of the matters alleged in the application and may determine the application on that evidence'.[10] The court may make an FVRO in the absence of the respondent.[11] It is an interim order.[12]
[8] ROA s 26(1)(a).
[9] ROA s 26(2).
[10] ROA s 28(1).
[11] ROA s 29(1)(a).
[12] As defined in ROA s 3.
ROA s 10F prescribes a number of matters which the court is to have regard to when considering whether to make a FVRO. For the purposes of determining this Appeal, it is only necessary to quote the first three, which by ROA s 10F(2) are of 'primary importance':
10F.Matters to be considered by court generally
(1)When considering whether to make an FVRO and the terms of the order, a court is to have regard to the following -
(a)the need to ensure that the person seeking to be protected is protected from family violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from family violence, behaviour referred to in paragraph (b) or otherwise being subjected or exposed to family violence;
…
The court has a wide power to impose restraints on the person bound by the order, as set out in ROA s 10G:
10G.Restraints on respondent
(1)In making an FVRO a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent -
(a)committing family violence against the person seeking to be protected; or
(b)if the person seeking to be protected by the order is a child, exposing a child to family violence committed by the respondent; or
(c)behaving in a manner that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them.
(2)Without limiting the restraints that may be imposed under subsection (1), a court may restrain the respondent from doing all or any of the following -
(a)being on or near premises where the person seeking to be protected lives or works;
(b)being on or near specified premises or in a specified locality or place;
(c)approaching within a specified distance of the person seeking to be protected;
(d)stalking or cyber‑stalking the person seeking to be protected;
(e)communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;
(f)preventing the person seeking to be protected from obtaining and using personal property reasonably needed by the person seeking to be protected, even if the respondent is the owner of, or has a right to be in possession of, the property;
(g)distributing an intimate image of the person seeking to be protected, or threatening to distribute the image;
(h)causing or allowing another person to engage in conduct of a type referred to in paragraphs (a) to (g).
(3)A restraint may be imposed on the respondent on such terms as the court considers appropriate.
(4)An FVRO may restrain the respondent from entering or remaining in a place, or restrict the respondent's access to a place, even if the respondent has a legal or equitable right to be at the place.
(5)If an FVRO imposes a restraint referred to in subsection (4), or for some other reason the court is satisfied that it is necessary to do so, the court is to ensure that the order makes provision for the person seeking to be protected, or the respondent, to recover personal property, and other property of a kind prescribed in the regulations, from a place specified in the order -
(a)in the manner set out by the court in the order; or
(b)in accordance with the procedures set out in the regulations.
(6)An FVRO may inform the respondent that certain behaviour and activities are unlawful.
An interim order remains in force until, relevantly:[13]
(a)a final order in respect of the matter comes into force; or
(b)a final order hearing in respect of the matter is concluded without a final order being made; or
(c)the interim order is cancelled.
[13] ROA s 16(4).
If an interim order is made, it is then prepared and served on the respondent by the court.[14] Once served, the respondent then has 21 days to decide whether to formally notify the court as to whether he or she objects to the interim order becoming final.[15] Where, as in the present case, the respondent objects to the interim order becoming final, the court then fixes a date for a final order hearing.[16] When both parties attend the final order hearing, 'a court is to admit as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the application that is relevant to the application'.[17] This is subject to the person who gave the evidence being available to be cross‑examined on that evidence, or the laws of evidence allowing the record to be admitted or the consent of each party.[18] The court at the final order hearing may then 'make a final order of the type, and with the terms, the court considers appropriate'.[19]
[14] ROA s 30.
[15] ROA s 31, s 32 and s 33.
[16] ROA s 33.
[17] ROA s 42(4).
[18] ROA s 42(5).
[19] ROA s 43.
However, in lieu of a final order, the court may, where there is an agreement, make a final order imposing restraints of the kind set out in ROA s 10G 'without being satisfied there are grounds for making an FVRO in the same terms'. In more detail:
10H.Conduct agreement
(1)If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
(2)A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
(3)A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
(4)The registrar must cause a conduct agreement order to be prepared and served on the respondent.
Subject to an exception which is not relevant, a FVRO comes into force on the date when it is served on the person bound by the order.[20]
[20] ROA s 16(1).
Proceedings in the Magistrates Court
The Application was signed by Audrey Russell, a delegate of the Public Advocate.[21]
[21] MB 1.
In the Application, adjacent to the box marked 'Set out the evidence you can give to support your application' the following appears:[22]
Refusing support and taking [GG] out of his accommodation without consent of guardian. Putting [GG] at risk of injury.
Coercing + controlling [GG] to refuse support + to continue residing in supported accommodation.
[22] MB 1.
In response to a query box in the Application - Why do you need a restraining order? - there is a check mark against the phrase: 'behaving in a way that makes you believe that personal violence or family violence will be committed'.[23] In response to a question requiring the applicant to briefly summarise the respondent's (that is, the Appellant's) behaviour, Ms Russell repeats the information at [19].
[23] MB 6.
Ms Russell swore an affidavit in support of the Application on 29 September 2023. Ms Russell annexes to her affidavit a detailed chronology in relation to GG.[24] The chronology begins in 2013, when GG was first supported by a guardian and administrator due to concerns for his welfare, lack of supervision and safeguarding, including serious incidents of being assaulted, hit by a car twice and being found by police lost in the community. It then records over a 10‑year period ongoing tensions around:
(a)guardianship and administration arrangements being put in place from time to time for GG;
(b)the Appellant and GG's father challenging those arrangements, including by removing him from the supported accommodation that had been arranged for him;
(c)the Appellant not being able to look after GG due to his challenging behaviours;
(d)welfare, wellbeing, supervision and lack of support concerns as regards GG, including due to the intervention of the Appellant; and
(e)the Appellant preventing the appointed guardian from communicating with GG, having him assessed and providing services to him.
[24] MB 20 - MB 25.
As to more recent events, in her affidavit, Ms Russell deposed that:[25]
(a)the Appellant had breached an undertaking made to SAT on 20 September 2023;
(b)on 26 September 2023, the Appellant was talking on the phone to GG and advised him that she was taking him out (of St John of God Hospital, Midland), which caused him to become distressed and violent;
(c)as a result of (b), GG destroyed property and caused injury, leading to hospital staff calling a 'Code Black';
(d)in June 2023, GG assaulted the Appellant and damaged property;
(e)as a result of (d), the Appellant had a 72‑hour police order against GG and he had to go to hospital as a social admission;
(f)in terms of the communication, Ms Russell requested that the Appellant have contact with GG 'within the parameters consented to by his guardian';
(g)the restraint sought was to include stopping the Appellant from removing GG from any accommodation, whether hospital, respite, temporary or permanent, consented to by the guardian, and not to encourage, facilitate or enable GG to leave accommodation; and
(h)the restraint sought was also to include a condition that the Appellant immediately contact the guardian if GG attends her property.
[25] MB 9 - MB 14.
Ms Russell annexed to her affidavit documents from the St John of God Hospital, Midland, which go into more detail as to the incidents which were the catalyst for the Application.[26] The documents reveal that on 16 September 2023, GG was admitted to that hospital as a 'social admission'. This followed a violent and aggressive outburst where his family called police and he was brought to the hospital. He was described as requiring constant 1:1 supervision as he was at very high risk of absconding. Two specific incidents are described involving the Appellant.
[26] MB 15 - MB 19.
The first incident occurred on 25 September 2023. The Appellant had come to visit GG with a view to taking him out for a haircut and a movie. She was informed by hospital staff that she would not be able to do so due to the legal orders. The Appellant expressed to hospital staff her view that the orders permitted her to take GG out so long as she did not permanently remove him. Hospital staff disagreed, and report the Appellant being rude and aggressive in response. On this occasion, GG did not react badly, rather remaining calm throughout.
The second incident occurred on 26 September 2023. The Appellant had telephoned GG. She had apparently told GG that she was going to take him out for a haircut and a movie, despite the conversations of the previous day. After the call, GG asked for food. A tray of food was provided. When it was delivered, GG threw it to the floor, smashing the plate and bowl. He then slammed the door to the room shut and threw items around the room. Among other damage, this caused the outward facing glass window of the room to be smashed. A 'Code Black' was called by staff. GG was medicated and removed to another room in which there was only a mattress. The report concludes with the statement:[27]
It is our belief that the conversation with his Mum was the precipitating issue that caused his behaviours to escalate.
[27] MB 17.
I need to interpose into the court chronology, two sets of orders made by SAT. The first is the order made on 20 September 2023 adjourning the hearing to review GG's guardianship order from that date to 27 September 2023. Orders were made for the Appellant to access certain documents. Significantly, the adjournment was:[28]
On the undertaking by [TAH] that she will not remove the represented person from hospital or from any respite or emergency accommodation arranged by or consented to by the guardian and will not encourage, facilitate or enable to the represented person to leave that accommodation.
[28] MB 131.
The second is the orders made by SAT on 27 September 2023. The full terms of the SAT order are:[29]
1.Time for service of the notice of hearing to less than 14 days to all parties pursuant to s 89(3)(a) of the Guardianship and Administration Act 1990 (WA), as the Tribunal has determined that exceptional circumstances exist.
The Tribunal declares that the represented person, [GG] is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
[29] MB 133 - MB 135.
Guardianship
The guardianship order dated 9 May 2022 is revoked and substituted with an order in the following terms:
2.The Public Advocate of David Malcom Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to decide whether the represented person should work and, if so, the nature or type of work, for whom they are to work and any related matters;
(d)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(e)to determine what contact, if any, the represented should have with others and the extent of that contact;
(f)to determine the services to which the represented person should have access;
(g)to decide with whom the represented person is to associate;
(h)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person;
(i)to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
4.The guardianship order is to be reviewed by 20 September 2028.
The Application was heard on 29 September 2023 before Magistrate Myers. Ms Russell appeared in person. She informed the magistrate that she was the guardian delegated by the Public Advocate. She was affirmed and gave evidence essentially in terms of what I have set out at [21] - [25].[30] She added some more detail on some points, which it is instructive to summarise:
[30] Magistrates Court transcript, 29 September 2023, ts 3 - ts 4.
(a)on a number of occasions in the preceding 12 months in which GG had been admitted to hospital because of his behavioural issues, having been taken there by the Appellant, she had not notified the Public Advocate of the admission;
(b)on a number of occasions in which GG has been in supported accommodation, the Appellant had either removed him or he had returned to her care ('even though don't really know how he has managed to do that because he really does not have that capability');
(c)in the past where that has occurred, GG has been left by himself for weeks at a time, putting him at risk, and usually ending up with him being admitted to hospital when his behaviour gets out of control;
(d)there is an OT (which I take to be Occupational Therapy) assessment to the effect that GG needs 24/7 care;
(e)when he is in his mother's care, nobody is allowed in the house;
(f)'We've tried many times to try and get into the house to provide him with supports, but his mother is constantly coercing him and telling him that he doesn't like people, that he shouldn't let them in, that people are trying to cause him grief of some sort';
(g)GG was then due to be transferred to supported accommodation again, but there is a concern that the Appellant will ignore the guardianship order and try to remove him from the accommodation;
(h)if he is removed, he will not have access to his supports and therapies, for which he has NDIS funding; and
(i)the ongoing cycle of GG going into and out of supported accommodation is using up the NDIS funding which should be being spent on supports and therapies.
Magistrate Myers gave short oral reasons granting what I have defined as the Interim FVRO.[31] In particular, her Honour found that:
I am satisfied that the behaviours of [TAH] do meet the requirements for family violence. The fact that her actions are putting him at risk, both risk from himself but also, due to his disabilities, he is at risk from other people in the community, as well, if he is not properly supported. So in saying that, I'm satisfied there has been committed an act of family violence and there is likely, if she is not restrained, to be an act of family violence committed again.
[31] Magistrates Court transcript, 29 September 2023, ts 5 - ts 6.
The terms of the Interim FVRO were that the Appellant must not:[32]
(a)be in possession of a firearm item, a firearms authorisation or obtain a firearms authorisation;[33]
(b)behave in an intimidatory, offensive or emotionally abusive manner towards GG; or
(c)remove GG from 'the hospital, respite, permanent or emergency accommodation arranged by or consented to by the guardian and not to encourage or facilitate or enable [him] to leave the accommodation'.
[32] MB 26.
[33] This being a mandatory requirement pursuant to ROA s 14(1).
The interim FVRO was served on the Appellant on 18 October 2023.[34]
[34] MB 77.
On 5 November 2023, the Appellant lodged an objection to the Interim FVRO.[35]
[35] MB 28 - MB 29.
The hearing to determine whether a final FVRO should be made was listed for 8 February 2024.[36]
[36] MB 79.
The Appellant filed written submissions on 6 February 2024. This included a medical report for GG dated 16 April 2021 from a Dr Willem Van Wyk, a consultant psychiatrist. GG attended the appointment with Dr Van Wyk with the Appellant. Dr Van Wyk confirmed a diagnosis of 'autism spectrum disorder with accompanying language impairment but no intellectual impairment'. He outlined a background based on the information provided to him by the Appellant. The impression I get from the background described is of ongoing efforts by the Appellant over many years to find the right environment for GG to live in, one in which he has a balance of both being supported and empowered to make his own choices. The report by Dr Van Wyk appears to have been provided to SAT.[37]
[37] MB 105 - MB 109.
The final order hearing on 8 February 2024 was before Magistrate Scutt (Magistrate). The Public Advocate was represented by counsel and the Appellant appeared in person. In view of the issues raised in the Appeal, it is necessary to go into some detail as to what occurred at this hearing.
The Magistrate went to some length to explain the final order hearing process to the Appellant and what the issues for the court were. Her Honour suggested to the Appellant on a number of occasions that she obtain legal advice, offering to adjourn the hearing in order for that to occur. Among other things, her Honour said:[38]
I'm not pre-determining the matter. As I say, I'm expressing concern that you don't - you're not in a position to appreciate what the matter entails in terms of the consideration that, as a matter of law, I must focus upon. This has some complexities to it, but it may transpire to be fairly straightforward in the sense that, as I say, if there are breaches of SAT orders that are there for the benefit of your son and in any way it is behaviour that could be described as coercive, controlling or any behaviour that might cause him fear, then the order must be made.
[38] Magistrates Court transcript, 8 February 2024, ts 4.
And:[39]
But in terms of running this matter to trial, part of a role in civil proceedings is to fair to everyone as well. You're not in a unique position, [TAH]. I just say that the little that I have seen would indicate to me that you are very focused on what you perceive to be an injustice. That may or may not have some merit to it. I'm not going to be deciding those issues.
The issues I will decide are very narrow in some respects and a lot of people come with the principle of the matter in mind, as I say, and very focused on that without actually understanding what the proceedings are about in terms of the application of law, what the consequences may or may not be.
…
Those peripheral matters that you might not be happy with the way they're managing him, or any other matters, aren't going to be agitated in this court. That's for the SAT, If there are any issues.
[39] Magistrates Court transcript, 8 February 2024, ts 5.
Against that background, the Magistrate then raised the option of a conduct agreement order:[40]
I say all of these things because I don't know how much a magistrate has talked to you about whether or not you're prepared to simply accept this order without admitting any liability because, often, that is a position respondents take when they understand that the purpose, perhaps, for which they are here and wanting to fight the matter is not likely to get a lot of air in the sense of the broader issues that you might want heard. Has a magistrate talked to you about a conduct agreement order?
[40] Magistrates Court transcript, 8 February 2024, ts 6.
Her Honour then proceeded to explain the nature of a conduct agreement order and the advantages of using that option. After telling the Appellant that the firearms clause was required as a matter of law, but that there was no suggestion she was a firearms risk, her Honour concluded:[41]
So it leave, then, one term, that you're not to behave in an intimidatory, offensive or emotionally abusive manner towards your son. If you're prepared to accept, without admitting you've done anything wrong, that you're not going to behave that way toward him, the matter can be resolved by way of an order by agreement without admitting you've done anything wrong, or, if that's not the position, the matter can forge ahead to a hearing, but, as I say, you may want to get some legal advice to see whether or not, in a term I often use, it's worth the wick. So, that's a lot of information. Firstly, do you have any questions about what I've said?
[41] Magistrates Court transcript, 8 February 2024, ts 8.
The Appellant then raised a concern that the interim order was irregular as Rules of the Supreme Court 1971 (WA) (RSC) O 70 r 4 (dealing with next friends) had not been complied with. The Magistrate (correctly - see [76]) told her that this rule had no application, and that the Interim FVRO was procedurally regular.
Counsel for the Public Advocate advised the court that it had raised the idea of a conduct agreement order with the Appellant in correspondence prior to the hearing. Counsel initially advised that the Public Advocate strongly opposed any adjournment. There was then a discussion between the Magistrate, counsel for the Public Advocate and the Appellant about the evidence which would be called if the matter went to a final order hearing. Following that discussion, counsel sought further instructions from Ms Russell, and advised the court that the Public Advocate would be 'happy to adjourn the proceedings today'.[42] The Magistrate advised the that next available date for a trial was on 23 July 2024.
[42] Magistrates Court transcript, 8 February 2024, ts 13.
The discussion then moved to the then current situation regarding GG's living arrangements. The following exchange occurred:[43]
HANNAH, MS: … If I may, just the issue that we do have at the moment. [TAH] is currently in breach of the current family violence restraining order in terms that she's facilitating the person protected to be in her Noranda home. She is at risk of the public advocate calling the police and then, obviously, being criminally charged for this. The public advocate, at all lengths, resists such conduct, although, if we're not proceeding - -
HER HONOUR: So is there a home for - - -
HANNAH, MS: He should be in supervised care. He has absconded and he's currently living with [TAH] in her Noranda home.
HER HONOUR: Okay. And your position is he should be returned to supervised care?
HANNAH, MS: Yes. My client, obviously, has every entitlement to call the police and [TAH] will be criminally charged for this. I think, if we're adjourning till July and it is the position of the advocate - the public advocate, that he needs 24/seven dare and he's not getting it, we've got a real problem, and if we can, perhaps, address that today, that would be appreciated. I understand that, perhaps, not in the leeway of all of your powers, however, I just thought I would flag it to the court.
[43] Magistrates Court transcript, 8 February 2024, ts 15 - ts 16.
And, after further discussion:[44]
[TAH]: Okay. Just in regards, the Noranda house is mine and my husband's, but we're farmers. Like, we have a business and our home is actually in Esperance.
HER HONOUR: Okay. I'm going to stop you for a moment because, the other thing is, everything you say in court is public. What is being suggested today, and I don't say this to agitate you at all but to tell you again, as I would speak to anyone in this position - this happens regularly - if there is a suggestion that you are currently in breach of this order, then the public advocate are putting you on notice that they might call the police. So I think you need to get some advice about that as well. I can't assist you with that. I can't give you any legal advice.
[TAH]: I understand, your Honour. I - - -
HER HONOUR: But it is a serious situation.
[TAH]: Yes.
HER HONOUR: And if you're saying this order is impossible to comply with for reasons out of your control, you need to get legal advice, and you need legal advice very quickly, as I say, in circumstances where the public advocate are putting you on notice.
[44] Magistrates Court transcript, 8 February 2024, ts 17.
The Appellant tried to explain why GG kept absconding. The Magistrate cut her off, saying she would not go into the merits of the matter, stating:[45]
HER HONOUR: … If there's an agreement that, in fact, he remains in your accommodation, then that's in breach of the - encourage or facilitate or enable to leave the accommodation. Well, it does say to leave. Look, I'm not going to make any findings. I'm not hearing evidence. I'm hearing some submissions.
But if it's your position, as I say, [TAH] that this order cannot be complied with because of the complexities of your son's condition and the inadequacies of the current accommodation, get some advice as a matter of urgency, because restraining orders are serious orders and, as I say, the public advocate have not called the police but they're talking about doing it.
[45] Magistrates Court transcript, 8 February 2024, ts 18.
Counsel for the Public Advocate added:[46]
HANNAH, MS: I think, just for the benefit of the transcript, I am instructed that my client has been knocking on the door of the Noranda home and [TAH] has simply been saying, 'No. Sorry. You're not going to get him. He's not here.' I just want that on the transcript, particularly because she has suggested she has flown in from Esperance today, he's obviously not under 24/seven supervision or care, which is what he's required to have.
[46] Magistrates Court transcript, 8 February 2024, ts 19.
There was then a discussion about a timetable for the Public Advocate to provide written witness statements and for a mention before her Honour. The Magistrate explained what would occur at the trial to determine whether a final order should be made in some detail. She told the Appellant that her statement of intended evidence 'really needs to focus upon allegations that you have engaged in coercive or controlling behaviour'.[47]
[47] Magistrates Court transcript, 8 February 2024, ts 22.
The discussion then returned to the then current situation of GG residing at the Appellant's property in Noranda. The Appellant said that she did not want to be arrested. She said that she was willing to let the Public Advocate try and return GG to supervised care. The Magistrate said:[48]
How could - again, you're welcome to get legal advice but, as I say, I'm going to be pragmatic about this. If a practical solution can be structured, I think that's helpful. When you say they're welcome to try, is there a way in which it might actually be facilitated today?
[48] Magistrates Court transcript, 8 February 2024, ts 26.
The Magistrate then had a conversation with the Appellant and Ms Hannah exploring a practical solution, including offering to stand the matter down for a short time so that they could discuss the matter further. The Magistrate repeated the recommendation for the Appellant to get legal advice:[49]
HER HONOUR: So, again, you probably need to get legal advice about that in the sense of what you can do if there's a complaint about the way that the Office of the Public Advocate are housing your son. In terms of the immediate circumstances, you're at risk of the public advocate calling the police.
[TAH]: I understand. That's what I'm saying - - -
HER HONOUR: So - - -
[TAH]: - - - I don't want - - -
HER HONOUR: So in terms of your - - -
[TAH]: - - - arrested, so - - -
HER HONOUR: - - - position that there is a reason why you're hesitant for him to return to the premises, you need to get some legal advice about that, but there is a way in which these matters are resolved in a lawful manner or though legal process. I'm not trying to press matters at the moment, but I'm getting an indication that perhaps in a position and the parties are here to try and work out something that might happen fairly quickly to ensure that you're not at risk of any police attendance, but that you're heard with your concerns - - -
[49] Magistrates Court transcript, 8 February 2024, ts 27.
The Magistrate explored this issue with counsel for the Public Advocate and the Appellant. The Public Advocate had wanted a conduct agreement order in terms of the Interim FVRO for five years (expressed in correspondence). However, in court, counsel advised that the Public Advocate would consider an order in terms of the Interim FVRO for a term of one year. The Magistrate summarised the position to the Appellant:[50]
HER HONOUR: Okay. As I say, I'm going well beyond my role but I think that it's important to try and resolve matters as best as possible. Two issues. So, it's accepted that there was a term in the conduct agreement order that imposed an obligation on you. Ms Hannah is indicating today that's not pressed. And, in terms of the current order, if you're prepared to enter into a conduct agreement order, then it would be in the same terms for a year. Usually it's from the date of service.
You can still get legal advice about that. I'm just letting you know that's the position of the Office of the Public Advocate. And, secondly, extending beyond what I should be doing today but I think it's important, having heard from the Office of the Public Advocate, is there something that - or, are you willing to look at whether or not [GG] might be able to be returned on the basis that there's access to the home and to [GG] today, so the Office of the Public Advocate can send a representative for that purpose?
[50] Magistrates Court transcript, 8 February 2024, ts 30.
The Appellant raised two main issues of concern to her. The first was that there was a broken window at the supported accommodation being proposed by the Public Advocate which was how GG was able to abscond. As to this concern, counsel for the Public Advocate advised the court that the premises were now safe. The second was that she could not sign an order which required her personally to be the person who removed and returned GG. As to this concern, the Magistrate responded:[51]
HER HONOUR: The question is: well, save for - there would need to be consent to enter the house, if necessary, which is something for the home owner to consent to, but, other than that issue, it would be a matter for the Office of the Public Advocate about - - -
[TAH]: So, yes.
HER HONOUR: - - - how they manage that.
[TAH]: So, yes. I'm saying I do consent because, obviously, I don't want to get arrested, but, obviously, it's with the contingency that he's not going back into the same situation where the windows are broken and he is just jumping through. So that's the only contingency I put forward with that.
HER HONOUR: So do you want - - -
[TAH]: And also that I can't assist.
[51] Magistrates Court transcript, 8 February 2024, ts 32.
There was then a discussion between the Magistrate and the Appellant about there being an adjournment so that the Appellant could speak to her daughter about what was being proposed. The Magistrate observed:[52]
HER HONOUR: Can I just also just make this observation and, again, this is not legal advice, but if you're not happy with the arrangements, it's not a defence to breaching a family violence restraining order. As I say, there are other avenues upon which you can address your concerns about the care arrangements. So I will leave that with you.
[TAH]: I understand. Yes.
[52] Magistrates Court transcript, 8 February 2024, ts 34.
The conversation then came back to a conduct agreement order, which the Appellant ultimately agreed to. In view of the issues in the Appeal, it is necessary to quote from the transcript of the hearing at some length. During this part of the hearing, the Appellant was handed a draft of the proposed conduct agreement order:[53]
[53] Magistrates Court transcript, 8 February 2024, ts 34 - ts 39.
HER HONOUR: But, as I say, as an objective assessment on the terms of the order, if it was a situation where it was known that he was in the premises and would not cooperate and nobody was positively encouraging cooperation where there was no consent to enter, then that's likely to cause some problems. I'm not going to take that any further. I think this needs to be discussed between the parties outside. Can I come back then, for the moment, [TAH]. The conduct agreement order has been offered in different terms. Do you want to get some legal advice about that? I think I've got - is there another trial on the board?
JSO: There is currently still something coming up.
HER HONOUR: Okay. I was about to say I have the day but perhaps I don't.
[TAH]: So - - -
HER HONOUR: So a conduct agreement order, you're saying, 'I've not done anything wrong. I'm not admitting any liability but I will agree to this because I don't intend breaching it.' That's usually the position, but it is enforced as a family violence restraining order, so, if there is a breach, police will be involved. So, the only question I have for you right now is: do you want some legal advice on that position because it has changed in terms of term - the term of the order and the terms of the order?
[TAH]: I actually need to - because I'm concerned on order 3, like I - - -
HER HONOUR: What it means.
[TAH]: It's almost like I need to see a draft. Like, I just don't - - -
HANNAH, MS: This is what's here.
HER HONOUR: It's just what's in there. That's why I handed the document down.
[TAH]: Okay. Soo this is what it is. So the other - - -
HANNAH, MS: Yes.
HER HONOUR: that is the actual interim order.
HANNAH, MS: Just to offer the clarification: you are agreeing that you will not - so you must not be in possession of a firearm, behave in an intimidatory - that one and this one, and you're saying - - -
HER HONOUR: I think the last one is the same as the SAT order.
HANNAH, MS: Yes.
HER HONOUR: So that's why I said - you know, unless you're planning on challenging, or amending or varying the last order, it's something that you're already obliged to follow in the SAT.
[TAH]: Yes. So, I'm sorry, your Honour, when you said conduct order, I immediately took my brain back to the previous one, then I, all of a sudden, thought that we were talking about that again.
HER HONOUR: That's the document there.
[TAH]: So I just required that clarification.
HER HONOUR: And I'm happy to give you that time - - -
[TAH]: Yes.
HER HONOUR: - - - unless you're in a position now to know that you're prepared to enter into it. But I don't want you to feel any pressure one way or the other. I'm just saying whether or not the parties need to come back to court and so some statements in the future. The other way I could deal with this is simply bring it back in two weeks without an order of any statement so you can get some advice about whether or not you should accept a conduct agreement order or if you want to proceed to trial, in which case programming orders can then be made.
[TAH]: Your Honour, look, I'm happy to go ahead with it as has been explained to me. I mean, I understand it. Let's just say the scenario is, okay, I haven't had legal advice. I agree to this today. I go and see a lawyer and he's like, 'Hang on a minute.' I mean, I understand that these things can be reapproached and varied anyway. So - - -
HER HONOUR: There's a process to vary.
[TAH]: Yes.
HER HONOUR: It's usually better to get it right first time.
[TAH]: I understand.
HER HONOUR: I have to say but - - -
[TAH]: But I'm in an immediate need because this person is in my house, so it's - and, I mean, it's very disruptive to my life but, obviously, I don't want to be arrested. My husband certainly doesn't want me to be arrested. So I need to facilitate this part of it until I can, and I'm not saying - when I say 'until,' it's probably the wrong use to use. I still will go ahead and get - you know, get legal advice and - - -
HER HONOUR: I think - - -
[TAH]: - - - everything else as to whether - but, at this point, we're talking about what's going to happen this afternoon. I'm happy to go ahead with this and I - yes, I'm happy to go ahead with it and simply to, obviously - - -
HER HONOUR: Okay.
[TAH]: - - - comply.
HER HONOUR: Okay. Then it's without any admission of liability, [TAH]. It is enforced as a family violence restraining order, so, if there's an allegation of breach, the office can contact you. They haven't done that today, and I'm not making any findings, [TAH], about what would happen in those circumstances but they're - - -
[TAH]: I understand.
HER HONOUR: - - - simply putting you on notice that, from their perspective, you would be in breach of the order. The terms, perhaps, aren't actually as clear as they could be in these circumstances but, again, that's a matter for legal advice, and if you wish to make any application to vary the SAT orders or this order, there are processes that can follow.
[TAH]: I understand, your Honour.
HER HONOUR: So, all right. Well, without admission of liability, then, are you wishing to enter a conduct agreement order in the same terms as the interim order for the same period of time, which is one year from the date of service?
[TAH]: So it's without an admission of liability? There's no other - - -
HER HONOUR: So you're not saying you've done anything wrong.
[TAH]: Yes.
HER HONOUR: But you're prepared to comply with that and you understand it's a court order.
[TAH]: Yes. That's my position at the moment. Yes.
HER HONOUR: Okay. That does finalise the matter. You understand that?
[TAH]: I do, your Honour.
HER HONOUR: By way of a court order.
[TAH]: I do.
HER HONOUR: Okay. So that will be - the date of service of the order was - - -
[TAH]: I think it was 18 October - - -
HER HONOUR: It was.
[TAH]: - - - 2023.
The Appellant queried what would occur if the SAT order was varied. The Magistrate advised that the Conduct Agreement Order was independent of any SAT order, but that she could apply to have it varied.
The hearing concluded with the Magistrate encouraging the Appellant to try to find a way to communicate effectively with the Public Advocate. The Appellant thanked the Magistrate for both her patience and how much information the Magistrate had given her.
The formal order made on 8 February 2024 was a conduct agreement order biding the Appellant and protecting GG (Conduct Agreement Order).[54] The terms of the Conduct Agreement Order were identical to the Interim FVRO. The Conduct Agreement Order is in the form prescribed as form 3 to the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR). Its duration was one year from 18 October 2023. As the Appellant was in court, the order had immediate effect.[55]
[54] MB 62.
[55] MB 84.
The Appeal
The Appeal was commenced on 1 March 2024 which is one day outside the 21‑day time limit from the 8 February 2024 decision to make the Conduct Agreement Order (Decision).[56] The court has the power to extend this time limit. The delay is obviously much longer from the decision to grant the Interim FVRO on 29 September 2023. However, for the reasons which follow, that is of no consequence. The Appellant filed an affidavit sworn 7 June 2024 (June Affidavit) in which she deposed that she had some difficulties trying to file the Appeal Notice through the court's electronic filing system on 29 February 2024. I grant the Appellant leave to adduce the evidence in pars 5 - 9 of the June Affidavit which go to the issue of leave. The Respondent did not contend that there was any prejudice by reason of the delay. It is appropriate that I give leave to the Appellant to commence the Appeal out of time.
[56] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3) (MCCPA).
On 12 March 2024 the Respondent filed a Notice of Respondent's Intention indicating that it would argue the Decision should be upheld on the grounds relied on by the primary court.
Both parties filed written submissions.[57] At the conclusion of the hearing on 23 July 2024, I made directions for both parties to file supplementary submissions on a number of issues which arose at that hearing. The Appellant did so on 7 August 2024, and the Respondent on 16 August 2024.
[57] The Appellant's submissions were filed on 6 May 2024. The Respondent filed submissions on 13 May 2024 and 26 June 2024.
The District Court must decide the Appeal on the material and evidence that was before the Magistrate.[58] The court can give leave to admit other evidence, but only in exceptional circumstances.[59]
[58] MCCPA s 40(4)(a).
[59] MCCPA s 40(4)(b), s 40(5).
The Appellant seeks the leave of the court to rely on the June Affidavit. In addition to the issue of the delay in filing the appeal (see [56]), the June Affidavit deals with three further issues (which I will refer to the 'Additional Evidence'):
(a)the Appellant's state of mind when the Conduct Agreement Order was made;
(b)the events which occurred in relation to GG's accommodation after 8 February 2024; and
(c)evidence in support of the assertion that the Public Advocate, its delegate and counsel have been acting improperly and misleading the Magistrates Court.
I defer the issue of whether leave should be granted to adduce the Additional Evidence until after I have considered the substantive issues arising in the Appeal based on the evidence before the Magistrate.
Counsel for the Respondent, Ms Hannah, filed an affidavit in response sworn 26 June 2024, essentially saying that she is a lawyer who holds a current Australian Practicing Certificate. There was no need for this affidavit to be filed. It is evident from Ms Hannah's appearance at the bar table that this was the case. No exceptional circumstance exists that warrants the grant of leave to adduce this evidence.
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate.[60] The court does not hear afresh all of the evidence.[61] Rather, the appeal is to be undertaken by way of a re‑hearing.[62]
[60] District Court Rules 2005 (WA) (DCR) r 50(1).
[61] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[62] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).
In an appeal by way of re‑hearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[63] There must be a material error of law, fact, discretion or other miscarriage of justice.[64] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision maker's reasons for decision to determine whether there has been an appellable error.[65]
[63] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).
[64] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd[2021] WASCA 130 [460] (judgment of the court) (Binningup).
[65] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].
The onus is on the Appellant to demonstrate the existence of an appellable error.[66] It is not sufficient for the Appellant to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[67]
[66] Smart [100]; Jones v Darkan Hotel[2014] WASCA 133 [31] (judgment of the court) (Jones).
[67] Marks [124].
At the outset of the hearing on 23 July 2024, counsel for the Respondent sought an order changing the name of the respondent to the appeal from 'The Public Advocate' to '[GG] by his next friend the Public Advocate'. This raises the issue of who the appropriate party was to have commenced the Application in the first place.
The Appellant's grounds of appeal are set out in an amended appeal notice filed 7 June 2024 (Amended Appeal Notice). I will grant her leave to amend her initial appeal notice in terms of the Amended Appeal Notice.
The grounds of appeal set out in the Amended Appeal Notice are as follows:
Ground 1.
Question of Law.
The original FVRO order was originally made in the absence of the Appellant and was procedurally irregular as it was made not in accordance with the relevant legislations.
Ground 2.
Question of Law.
The orders made were circumstantially in excess of the Judicial Officers' jurisdiction as they were made in contrast to the Rules of the Supreme Court 1971 Order 70 Rule 2. (3) and the Magistrates Court (Civil Proceedings) Rules 2005 Reg. 118 (3).
Ground 3.
Question of Fact.
The making of the FVRO orders were by their nature, an illustration of clear bias towards the Delegate by the Court as they put the Appellant in a position to be able to be repeatedly arrested due to her property ownership.
Ground 4.
Question of Law.
The FVRO orders requested by the Delegate and confirmed by the Court were vexatious and an abuse of process designed to cause the Appellant harm and loss, through no fault of her own.
Ground 5.
Question of Law.
The agreement by the Appellant to the Conduct Agreement on 8th February 2024 was involuntary by her. The agreement is voidable as it was brought about by undue pressure, in the form of coercion forced on her, she was threatened severally at the hearing with imminent arrest if she did not agree to the proposed conduct agreement being finalised of the Interim FVRO, at that hearing and was made whilst in induced psychological duress to escape being arrested. There was no negotiation permitted.
The grounds of appeal set out in the Amended Appeal Notice raise the issue of the extent to which the issues fall within the District Court's appellate jurisdiction, this being limited by ROA s 64.
In summary, the issues which arise for determination in the Appeal are:
•Who is the appropriate party to have commenced the Application and thus be the respondent in the Appeal?
•To what extent do grounds 1 - 4 raise issues within the appellate jurisdiction of the District Court?
•What is the scope of an appeal to the District Court in relation to a conduct agreement order?
•Should the Appellant be granted leave to adduce the Additional Evidence?
•What final orders are appropriate?
These are dealt with in Parts 5 - 9.
In dealing with these issues, I bear in mind that the Appellant is a litigant in person. As a litigant in person, she is entitled to some leniency in relation to compliance with the court rules.[68] The court is required to approach the documents in which she articulates her appeal with some flexibility.[69] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her appeal, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[70] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[71]
[68] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[69] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[70] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).
[71] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
One 'abiding difficulty' faced by the court is 'the tension between the duty of a … judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[72] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[73] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[74]
[72] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic).
[73] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[74] Zerjavic [74] - [75].
The principles set out at [71] and [72] applied equally to the hearings in the Magistrates Court.
Who is the appropriate party to have commenced the Application and thus be the respondent in the Appeal?
As mentioned, at the hearing of the Appeal, counsel for the Respondent sought an order changing the name of the respondent to '[GG] by his next friend the Public Advocate'. The SAT Orders empower the Public Advocate to act 'as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person' (set out in context at [27]).
However, as I have observed at [10], where the person seeking to be protected is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990 (WA) (GAA), an application for an FVRO may be made by the guardian on behalf of the person.[75] Such an application by a guardian 'will be taken to have been made in the name of the Public Advocate'.[76] Accordingly, the Application was correctly made in the name of the Public Advocate and the Public Advocate is the proper respondent to the Appeal. So, the application made by counsel for the Respondent should be denied. I observe that different issues may arise where the guardian of the person protected is not the Public Advocate, but that is not something I need to consider in this appeal.
[75] ROA s 24A(2)(b).
[76] ROA s 24A(2A)(c).
Ground of appeal 2 refers to RSC O 70 r 2 and MCCPR r 118(3). RSC O 70 r 2(1) sets out the rule that, in proceedings to which the RSC applies, 'a person under disability … cannot bring, or make a claim in, any proceedings except by the person's next friend'. MCCPR r 118(1) provides that a represented person within the meaning given to that term in GAA s 3(1) 'must have a litigation guardian to conduct the case on his or her behalf unless the Court orders otherwise'. Rule 118(3) provides that if 'the Public Trustee is a joint administrator of the estate of a represented person, the Public Trustee is to be the person's sole litigation guardian'. In the present case the Public Trustee is not involved in the administration of the estate of GG, so r 118(3) has no application. In any event, as set out at [75], the correct applicant for the Application, and the correct respondent for the Appeal, is the Public Advocate. Ground of appeal 2 does not disclose any error either by the Magistrate at first instance or in the procedure adopted on appeal.
To what extent do grounds 1 - 4 raise issues within the appellate jurisdiction of the District Court?
The appellate jurisdiction of the District Court in relation to matters arising under the ROA is set out in ROA s 64, which provides (so far as is relevant):
64.Appeals
(1)A person aggrieved by the decision of a court -
(a)under section 23(1)(b) or 29(1)(b) to dismiss an application; or
(b)to do any of the following -
(i)make, vary or cancel a final order;
(ii)refuse to make, vary or cancel a final order;
(iii)make any other order in relation to a final order,
may appeal against that decision in accordance with this section.
(2)If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004 unless subsection (6a)(a) applies.
…
A conduct agreement order made pursuant to ROA s 10H is defined in ROA s 3 to be a 'final order'. So to the extent that the Appellant challenges the Conduct Agreement Order, the Appeal is within the appellate jurisdiction of the District Court. I return to the scope of this appellate jurisdiction in Part 7.
Turning to the grounds of appeal, ground 1 challenges the 'original FVRO' as being procedurally irregular on the basis that it was made in the absence of the Appellant. The reference to the 'original FVRO' is to the Interim FVRO. It is well established that there is no statutory entitlement to appeal against the grant of an interim FVRO.[77] In any event, ROA s 26(1) makes it clear that an interim FVRO may be granted in the absence of the person bound by the order (see [11]).
[77] Grossetti v Grossetti [2011] WADC 78 [9] - [31] (Scott DCJ).
As to ground of appeal 2, the Appellant asserts that the 'orders' made were 'circumstantially in excess of the Judicial Officers' jurisdiction as they were made in contrast to the Rules of the Supreme Court 1971 Order 70 Rule 2. (3) and the Magistrates Court (Civil Proceedings) Rules 2005 Reg. 118 (3)'. To the extent that the 'orders' refers to the Interim FVRO, there is no right of appeal. As to the impact of this issue on the Decision, I have already dealt with this above ([76]).
Ground of appeal 3 in effect asserts that the Magistrate was biased towards the Respondent. To the extent that this assertion relates to the grant of the Interim FVRO, for the reasons set out at [79], it is not an issue that can be raised in an appeal to the District Court. To the extent that it relates to the Conduct Agreement Order, it is the case that a decision which is tainted by bias is a breach of procedural fairness which is in turn an error of law justifying the decision being set aside.[78]
[78] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10] (reasons of the court); Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2 [38] (judgment of the court) (Wreford).
There are two types of bias. The first is actual bias. The principles by which this form of bias is to be determined are well‑settled. They are summarised by Quinlan CJ in Ogbonna v CTI Logistics Ltd:[79]
A determination as to actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done … The onus of demonstrating actual bias lies upon the party asserting the actual bias and it is a heavy onus …
[79] Ogbonna v CTI Logistics Ltd [2021] WASCA 21 [11] (Quinlan CJ) (references omitted).
In a parallel decision in the same matter,[80] Murphy JA said:
A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required … The inquiry requires an assessment of the state of mind of the judge in question. However it is not confined to a consideration of the intentional state of mind of the judge. Actual bias may be subconscious … Generally speaking, that inquiry has to be undertaken based on what the judge has said and done …
[80] Ogbonna v CTI Logistics Ltd [2021] WASCA 22 [18] (Murphy JA) (references omitted).
On my reading of the transcript of the hearing on 8 February 2024, as reviewed at [36] - [54], nothing that the Magistrate said or did suggests anything that might be considered to amount to actual bias. To the contrary, the Magistrate's approach was even‑handed, balanced and respectful. Moreover, it fully reflected the principles which I have set out at [71] and [72] in relation to a litigant in person. Nowhere in her submissions, written or oral, did the Appellant identify any specific statement or action by the Magistrate from she invited the court to make a finding of actual bias.
The second is where there is a reasonable apprehension of bias. The principles were recently summarised by the Court of Appeal in Wreford:[81]
Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide. In applying this principle it is necessary to identify what is said might lead the judicial officer to decide a case other than on its legal or factual merits and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.
The test is objective and the fair‑minded lay observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial. However, the fair‑minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision‑makers.
[81] Wreford [39] - [40], adopting the principles discussed in referring to Reynolds v Rayney [2023] WASCA 144 [28] - [36] (judgment of the court).
On my reading of the transcript of the hearing on 8 February 2024, as reviewed at [36] - [54], there is nothing at all to lead a fair‑minded lay observer to reasonably apprehend that the Magistrate might not, or did not, bring an impartial mind to the resolution of the questions her Honour was required to decide. Again, nowhere in her submissions, written or oral, did the Appellant identify any specific statement or action by the Magistrate from she invited the court to make a finding of a reasonable apprehension of bias.
For these reasons, ground of appeal 3 does not disclose any appellable error by the Magistrate.
Ground of appeal 4 in effect challenges the merits of decision to make the Conduct Agreement Order. Before addressing this ground, and ground of appeal 5, it is necessary to consider the scope of an appeal to the District Court in relation to a conduct agreement order.
What is the scope of an appeal to the District Court in relation to a conduct agreement order?
What decisions does a magistrate have to make in order to make a conduct agreement order?
As mentioned, the appellate powers of the District Court are to be exercised for correction of error.[82] This requires an examination of the nature of the decision by the Magistrate pursuant to ROA s 10H which is said to be in error.
[82] Coal and Allied [14]; Allesch [23]; Saunders [84].
In order to make a Conduct Agreement Order, ROA s 10H requires a magistrate to make two distinct decisions. The first is that that the respondent (that is, party to be bound) agrees to the making of a final order imposing restraints of the kind referred to in ROA s 10G. The second is to exercise a discretion as to whether or not to make the order, the discretion being denoted by the use of the word 'may' in ROA s 10H(1).[83]
[83] Interpretation Act 1984 (WA) s 56.
These two decisions are subject to different types of appellate oversight. The first is subject to the 'correctness' standard. It is a question 'to which there is but one legally permissible answer, even if that answer involves a value judgment'.[84] Although the task is evaluative, there is only 'one uniquely correct outcome', 'one right answer and an appeal from the decision is concerned with its correctness'.[85] For the second, the appropriate standard of review of that discretionary decision is the standard explained in House v The King.[86]
[84] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [16] (Kiefel CJ, Gageler & Jagot JJ); Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [57] (judgment of the court) (Keremestevski).
[85] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [154] (Edelman J; see also [35] ‑ [50](Gaegler J) (SZVFW); Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [128] (judgment of the court).
[86] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); SZVFW [38]; Keremestevski [53]; Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] ‑ [185], [204], [241] (judgment of the court) (Lawrence); As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].
This leads to two sub-issues:
•Did the Magistrate err in finding that the Appellant agreed to the making of a final order in terms of the Conduct Agreement Order?
•Did the Magistrate err in the exercise of the discretion to grant the Conduct Agreement Order?
There is a potential third basis for appellate review. This is where there is an assertion that the conduct agreement order made imposes restraints going beyond the kind referred to in ROA s 10G. However, as this issue does not arise in the present appeal, I do not need to consider it further.
Did the Magistrate err in finding that the Appellant agreed to the making of a final order in terms of the Conduct Agreement Order?
The task of the appellate court when an appeal concerns an evaluative judgment was explained in by the Court of Appeal in G v O as follows:[87]
Where findings or conclusions involve elements of fact, degree, opinion or judgment, the demonstration of error may not be straightforward. The difficulty in doing so may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, or because the nature of the issue is one such that, while not a discretion, there cannot be said to be one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge. Nevertheless, even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate the conclusion that the trial judge was wrong, and that the appeal court must interfere.
[87] G v O [2022] WASCA 23 [103] (judgment of the court) (references omitted).
The question of whether the Appellant agreed to the making of a final order in terms of the Conduct Agreement Order may well arise, as it did in this case, in the course of case management towards a final hearing. While there was some evidence before the court in the form of Ms Russell's affidavit and the transcript from the hearing on 29 September 2023, the bulk of the information which the Magistrate relied on came from the bar table. The appropriate inquiry is thus whether, on all the information (being a wider term than evidence) available to the Magistrate, the Magistrate erred in concluding that the Appellant agreed to the making of the Conduct Agreement Order.
At this point, it is necessary to refer to ground of appeal 5, which I quote again for ease of reference:
The agreement by the Appellant to the Conduct Agreement on 8th February 2024 was involuntary by her. The agreement is voidable as it was brought about by undue pressure, in the form of coercion forced on her, she was threatened severally at the hearing with imminent arrest if she did not agree to the proposed conduct agreement being finalised of the Interim FVRO, at that hearing and was made whilst in induced psychological duress to escape being arrested. There was no negotiation permitted.
There are two aspects to this ground. The first is the extent to which what the Appellant describes is apparent from the transcript of the hearing before the Magistrate. The second is the extent to which the determination of the Magistrate that the Appellant agreed to the making of the Conduct Agreement Order can be challenged in this court on the basis of information that was not apparent to the Magistrate. I will deal with this first aspect at this point in the reasons, and the second in Part 8.
At [36] - [54] I have set out in detail what transpired at the hearing on 8 February 2024. It is the case that the Magistrate pointed out to the Appellant that she could be arrested if she breached the terms of the Interim FVRO (see for example the passages quoted at [42] - [44]). However, it is not correct to say that the Magistrate threatened the Appellant at the hearing 'with imminent arrest if she did not agree to the proposed conduct agreement'. As set out at [42], it was the fact that GG was then residing at the Appellant's home in Noranda which placed her at risk of breaching the Interim FVRO. Counsel for the Public Advocate quite properly placed the Appellant on notice of this risk. The response of the Magistrate was to make it clear that the court could not give the Appellant legal advice on this issue and to repeat the recommendation that the Appellant get her own legal advice 'very quickly'. In my view, the matters alleged in ground of appeal 5 are not apparent on the face of the transcript.
The passages quoted at [36] - [54] place the Appellant's decision to agree to the making of the Conduct Agreement Order in context. At [52] I quote the relevant portion of the transcript in which the Magistrate inquired as to whether the Appellant agreed to the making of the Conduct Agreement Order. Her Honour's inquiry was careful and respectful, giving the Appellant both information as to the nature of and effect of a Conduct Agreement Order and ample opportunity to get legal advice, adjourn for a short period, adjourn for a longer period or have the matter listed for a final order hearing. Against this background, the Appellant unequivocally agreed to the making of the Conduct Agreement Order.
In my view, the Magistrate did not err in concluding that the Appellant agreed to the making a of Conduct Agreement Order. The power to make the order in ROA s 10H was thus enlivened.
Did the Magistrate err in the exercise of the discretion to grant the Conduct Agreement Order
Neither party specifically addressed this issue in their submissions. It is sufficient to determine the appeal based on the most general of the principles set out in House, being that error in the exercise of a discretion may be inferred if the decision under appeal is 'upon the facts is unreasonable or plainly unjust'.[88] This is the position most favourable to the Appellant.
[88] House (505).
There is one matter in ROA s 10H(1) which conditions the exercise of the discretion. This is that 'the court may make the order without being satisfied there are grounds for making an FVRO in the same terms'. By ROA s 3, satisfied means 'satisfied on the balance of probabilities'. This has important consequences for appellate oversight. This is that a decision to make a conduct agreement order cannot be challenged on the basis that there were no grounds for the making of an FVRO in the same terms. Nor can it be challenged on the basis that the evidence was insufficient for the Magistrate to be satisfied on the balance of probabilities that there were grounds for the making of the order.
Aside from this factor, the discretion is unfettered, though it must be exercised judicially, that is, in accordance with established principles and factors directly connected with the litigation, and not arbitrarily, capriciously or so as to frustrate the legislative intent.[89]
[89] By analogy: Northern Territory v Sangare[2019] HCA 25; (2019) 265 CLR 164 [24] (Kiefel CJ, Bell, Gageler, Keane & Nettle JJ) (costs); Strzelecki Holdings Pty Ltd v Jorgensen[2019] WASCA 96 [48] (judgment of the court) (costs); Modern Holdings Pty Ltd v Scentre Management Ltd [2022] WASC 19 [18] (Strk J) (security for costs).
This is the relevant point in the appellate review to consider ground of appeal 4, being that the 'FVRO orders requested by the Delegate and confirmed by the Court were vexatious and an abuse of process designed to cause the Appellant harm and loss, through no fault of her own'.
Part of the context in which the Application was made and the Interim FVRO was granted was the SAT Orders which I have quoted above ([27]). These orders made the powers and responsibilities of the Public Advocate very clear. Correspondingly, they limited the role and responsibility of the Appellant. The very clear intent of the Application was to prevent the Appellant from interfering with the Public Advocate exercising the powers and responsibilities given to it by SAT. It appeared on the material filed that she had done so in the past, the most recent occasions being the catalyst for the making of the Application. There is no foundation for any assertion that the Public Advocate was acting vexatiously or was abusing the processes of the court. Indeed, had the Public Advocate failed to act to prevent the Appellant from interfering with it exercising its powers and responsibility for the benefit of GG, it would have been open to justifiable criticism.
One concern of the Appellant's at the hearing was that GG was then residing at her Noranda house and she could not sign an order which required her to personally remove him. This appears to be the concern underlying the last clause of ground of appeal 4. However, as the Magistrate pointed out, all she would be required to do is give the Public Advocate consent to enter the house 'but, other than that issue, it would be a matter for the Office of the Public Advocate' (quoted in context at [50]). Moreover, the specific terms of the restraint were not to 'remove' [GG] from 'the hospital, respite, permanent or emergency accommodation arranged by or consented to by the guardian and not to encourage or facilitate or enable [him] to leave the accommodation'. These are plainly matters within the control of the Appellant. Her concern that the orders were 'designed to cause [her] harm and loss, through no fault of her own' is entirely misplaced.
I add to this what I have said at [84] and [99] about the manner in which the Magistrate proceeded at the hearing on 8 February 2024. In my view, there is no basis on which it can be said that the decision of the Magistrate to make the Conduct Agreement Order in all the circumstances of the hearing was 'unreasonable or plainly unjust'.
The Magistrate did not err in the exercise of the discretion to make the Conduct Agreement Order.
Grounds of appeal 4 and 5 have not been made out on the basis of the materials before the Magistrate and what transpired at the hearing.
Should the Appellant be granted leave to adduce the Additional Evidence?
The analysis to date is that on the basis of the materials before the Magistrate, and what transpired at the hearing on 8 February 2024, the Magistrate did not err, with the consequence that there is no basis to set aside the Conduct Agreement Order. In this context, I need to consider whether exceptional circumstances exist to warrant granting leave to adduce the Additional Evidence.[90]
[90] MCCPA s 40(4)(b), s 40(5).
In Shilkin v Taylor Newnes JA observed of this discretion:[91]
It is evident that so far as the material in that affidavit is sought by the appellant to be admitted on the appeal, it is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellant prior to the hearing before the magistrate of the application to set aside the default judgment.
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal … Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): …
On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out.
[91] Shilkin v Taylor [2011] WASCA 255 [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed) (Shilkin). See also: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [89] (Newnes JA, with whom Buss & Pullin JJA agreed); JC v TH [2024] WADC 58 [21] (Black DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16] (Bowden DCJ) (Nugawela).
Moreover, leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented.[92]
[92] Nugawela [20]; Naidoo v Naidoo [2005] WADC 41 [9] (Eaton DCJ).
As mentioned ([60]), there are essentially three issues addressed in the Additional Evidence. The first issue is the Appellant's state of mind when the Conduct Agreement Order was made (par 15). I have already addressed this issue to the extent that what the Appellant describes is apparent from the transcript of the hearing before the Magistrate ([98]). This aspect of the Additional Evidence is evidence of the Appellant’s state of mind that was not apparent from the transcript of the hearing before the Magistrate.
With one possible caveat, an appellant cannot assert that a magistrate made an error in coming to a decision based on facts which were not then before the court. It follows that evidence to this effect should not be admitted on appeal. The possible caveat is where the allegation is that the facts were not before the court due to the magistrate failing to allow the appellant procedural fairness. However, this is not the allegation made in the present case.
In effect what the Appellant says is that she has reconsidered her position and wishes to withdraw her agreement to the making of the Conduct Agreement Order. A similar situation has been considered in two recent Court of Appeal decisions.
The first is Seddone v Commonwealth Bank of Australia.[93] In that case, the appellant, Ms Seddone and her husband, entered into two loans with the respondent, Commonwealth Bank of Australia (CBA), secured over two properties. Ms Seddone and her husband defaulted on the loans. This led to CBA commencing proceedings claiming possession of each property and the outstanding amounts on each loan, together with interest and costs. CBA obtained default judgment against Ms Seddone's husband, from whom she was then estranged. CBA then sought summary judgment against Ms Seddone. Ms Seddone was not represented at any of the hearings. At the initial hearing of the summary judgment application, counsel for the CBA advised the Master that it had put forward a proposal to Ms Seddone that it would take possession of the one of the properties, sell it, and use the proceeds to refinance the remaining debt over the other property. CBA would be given summary judgment, but would not enforce it over the other property provided that Ms Seddone continued to make payments on the loan. Ms Seddone asked for time to consider the proposal, so the Master granted a one month adjournment.
[93] Seddone v Commonwealth Bank of Australia [2024] WASCA 70 (Seddone).
When the summary judgment application came back before the Master, counsel for CBA informed the court that it was her understanding that Ms Seddone wanted to consent to the judgment sought by the CBA on the terms of the arrangement proposed by it. The Master took Ms Seddone though a letter from CBA containing the proposal, explaining it to her. The Master gave her the two options of either proceeding that day in accordance with the proposal or being granted a short adjournment in which to file affidavit material in opposition to the application for summary judgment. The Master then stood the matter down for Ms Seddone to consider her position. On the resumption of the hearing a short time later, Ms Seddone said that she would accept CBA's proposal, telling the Master that she 'had no choice'. The Master made the orders sought by CBA on the basis that Ms Seddone understood the orders and consented to them.
Over four years later, Ms Seddone appealed the Master's decision to grant summary judgment. The sole ground of appeal was that the Master had denied her 'natural justice/due process', and thereby erred in not exercising her discretion to grant Ms Seddone a further adjournment to consider her position. The Court of Appeal held that this ground of appeal had no reasonable prospect of success. Ms Seddone's application for an extension of time to appeal and leave to appeal was dismissed, as was the appeal.[94] Relevantly for the present appeal, the court observed:[95]
…. there was no obligation on the acting master to interrogate Ms Seddone about her understanding of the agreement or the state of her mental health. In any event, there is no evidence before this court, and there was no evidence before the primary court, indicating that Ms Seddone misunderstood what was proposed by the Bank or was incapable of understanding and participating in the hearing. If the orders were not going to be made by consent, the acting master indicated that Ms Seddone would have a short further opportunity to file material in opposition to the Bank's summary judgment application. There was, in all the circumstances, nothing arguably procedurally unfair about the primary court's approach.
[94] Seddone [33] - [34] (judgment of the court).
[95] Seddone [27].
And:[96]
The Bank was undoubtedly in a stronger position than Ms Seddone in negotiating a settlement of the matter. However, the court was not Ms Seddone's legal adviser or the scrutineer of the advice which she received. At most, the requirement for the court was to provide Ms Seddone with time that gave her a reasonable opportunity to obtain legal advice. The four-week adjournment of the summary judgment application for that purpose gave Ms Seddone a reasonable opportunity to obtain legal advice in relation to the Bank's proposal.
…
Further, on appeal it is not sufficient for Ms Seddone to show that she might have had an arguable defence to the Bank's claim in the primary proceedings. Rather, it is necessary for Ms Seddone to demonstrate a proper basis for impugning the settlement agreement she reached with the Bank that is reflected in the orders of 17 May 2018 to which she consented. That agreement is not vitiated by the fact that Ms Seddone may have reached the agreement reluctantly or may have been poorly advised in relation to it. There is no evidence before this court that the Bank applied any illegitimate pressure on Ms Seddone which might form an arguable basis for setting aside the settlement agreement on grounds such as duress, undue influence or unconscionable conduct …
Ms Seddone's written submissions also make assertions as to the advice which she received in relation to the Bank's settlement proposal and as to her subjective understanding as to the effect of the agreement. Those assertions are not supported by any evidence before this court or the primary court. It appears from Ms Seddone's exchanges with the acting master on 17 May 2018 that she understood the Bank's proposal even though she did not like aspects of its terms. In any event, Ms Seddone's written submissions do not on their face disclose any proper basis for this court to set aside the settlement agreement reflected in the orders made by consent on 17 May 2018.
[96] Seddone [29], [31] - [32] (reference omitted).
In the present Appeal, like the Master in Seddone, the Magistrate carefully explained the terms and effect of the Conduct Agreement Order and offered the Appellant the opportunity to have the matter adjourned so that she could seek legal advice and consider her position further. Again, like the position in Seddone, there was no obligation on the Magistrate to interrogate the Appellant about her understanding of the orders proposed or the state of her mental health. However, unlike the position in Seddone, in the present Appeal there was no underlying settlement agreement between the Public Advocate and the Appellant pursuant to which the orders were made by the court. It was in relation to this underlying settlement agreement in Seddone that the Court of Appeal made the observation that there was 'no evidence before [the] court that the Bank applied any illegitimate pressure on Ms Seddone which might form an arguable basis for setting aside the settlement agreement on grounds such as duress, undue influence or unconscionable conduct'.[97]
[97] Seddone [13]; Confirmed by its reference the footnotes to the decision in Chang v Legal Profession Complaints Committee (No 2) [2020] WASCA 208; (2020) 56 WAR 263 [270], [277] - [278], [280] (Buss P & Murphy JA).
The Appellant referred in her supplementary submissions to the decision of the Full Court in Scolio Pty Ltd v Cote.[98] In that case, Mr Cote was a manager of Scolio Pty Ltd (Scolio). Scolio's auditor had found evidence of misappropriation of Scolio's funds by Mr Cote. Scolio's general manager instructed the auditor to negotiate a deed with Mr Cote by which he agreed to repay a certain amount by instalments. Mr Cote later commenced proceedings to have the deed declared voidable as he had signed it under duress. Specifically, he alleged that prior to signing the deed, he was threatened by the auditor that he would not be allowed to leave the office, not allowed to telephone his solicitor and with the involvement of police, if he did not sign the deed. The trial judge agreed and set aside the deed. The Full Court did not, and granted Scolio judgment on the deed.[99] The Full Court made it clear that:[100]
(a)a threat to make a report to police of actual misconduct is not in itself unlawful;
(b)some other element of impropriety is needed, apart from threat of prosecution, before it could be said to be duress resulting in the party becoming entitled to avoid the deed;
(c)the element of impropriety may be the party said to have made the threat expressly or implicitly agreeing not to give information to police so as to stifle a prosecution; and
(d)another relevant factor is whether the person who is threatened receives consideration for entering into the contract sought to be set aside.
[98]Scolio Pty Ltd v Cote (1996) 6 WAR 475 (Scolio).
[99] Scolio (482) (Rowland J), (488) (Ipp J, with whom Seaman J agreed).
[100] Scolio (479) - (482), (483) - (488).
The Appellant asserts that the Public Advocate 'made' the Conduct Agreement Order agreement to stifle a prosecution and that she only entered into the agreement so as to prevent the Respondent from informing the police of her actions.[101]
[101] Appellant's supplementary submissions filed 7 August 2024, page 8 par cc.
In my view, the decision in Scolio is not relevant to the determination of the present Appeal. The Public Advocate did not 'make' any agreement with the Appellant. There was no underlying settlement agreement between the Public Advocate and the Appellant pursuant to which the orders were made by the court. So, there is no agreement which could be set aside on the basis of duress. Rather, there was an order made by the court to which the Appellant agreed. For completeness sake, I reiterate that any threats by the Public Advocate to involve the police in order to enforce the Interim FVRO were ones that it was entitled to make, and were entirely appropriate in the circumstances of the present case to protect the welfare of GG.
The position where the parties have agreed or consented to an order being made without there being an underlying settlement agreement was considered by the Court of Appeal in Connor v Veitch.[102] The parties signed a consent order to determine the appeal following a mediation. Ms Veitch, the respondent, had instructed her counsel to sign the consent order. However, after it was filed with the court to extract, she requested the court to not extract the consent order and instead list the action for a further mediation. Ms Veitch filed affidavit evidence to the effect that she felt stressed, confused and scared towards the end of the mediation, and felt that she had no option but to agree to resolve the dispute on the terms offered, even though she was not happy with it. The Court of Appeal observed that the case was, in substance, one in which Ms Veitch 'had reconsidered her position and wished to withdraw her consent to the parties' compromise of the litigation'.[103] The Court of Appeal was of the view that it had no discretion to do so. Even if it had, it would have declined to exercise the discretion, observing that the rules did not provide for a litigant to have a 'cooling off' period having consented to the orders.[104]
[102] Connor v Veitch [2023] WASCA 186 (Connor).
[103] Connor [23] (reasons of the court).
[104] Connor [34].
In the present case, the Appellant's agreement or consent to the orders being made was given in a court hearing following careful inquiry by the Magistrate. In this scenario, there is a much stronger case for not allowing her what is in effect a cooling off period than where the agreement or consent is given out of court.
In my view, consistent with the decisions in Seddone and Connor, in the present appeal the additional evidence as to Appellant's state of mind when the Conduct Agreement Order is not relevant or admissible on the question of whether the Magistrate made an error in concluding that the Appellant had agreed to the making of the Conduct Agreement Order. The inquiry is limited to the information before the Magistrate apparent on the face of the transcript. As this aspect of the Additional Evidence is not material to the determination of the Appeal, there is no injustice in refusing to grant the Appellant leave to rely on it, and no exceptional reasons to do so.
The second issue addressed in the Additional Evidence is the events which occurred in relation to GG's accommodation after 8 February 2024.[105] The Appellant deposes that her agreement was conditional upon the Public Advocate providing safe, secured and repaired accommodation for GG, something which she says is evident from the transcript. She says that this was discussed with Ms Russell and Ms Hannah after the hearing. She goes on to depose that the following day GG absconded from the secure accommodation and arrived at her Noranda home, where he has been since then.
[105] Appellant's affidavit dated 7 June 2023, par 15 a, b, c and 16.
An appellant cannot assert that a magistrate made an error in coming to a decision based on events which occurred after the decision was made. It follows that there are no exceptional circumstances to admit the evidence going to this second issue.
Rather, to the extent that the Appellant has concerns about the practical effect and operation of the Conduct Agreement Order based on what occurred after it was made, the appropriate course was for her to raise this with the Magistrates Court by seeking to cancel or vary the Conduct Agreement Order. By ROA s 45, as the person bound, she could have applied to cancel or vary the Conduct Agreement Order. This power to cancel or vary arises in relation to a 'restraining order', which is defined in ROA s 3(1) to include a FVRO. The phrase 'family violence restraining order' is also defined in ROA s 3(1), and it 'means an order made under this Act imposing restraints of the kind referred to in s 10G'. Given that a Conduct Agreement Order must by ROA s 10H impose restraints of this kind, it is a 'restraining order' for the purposes of ROA s 45. The power to cancel or vary may be exercised where, among other reasons, 'there has been a substantial change in the relevant circumstances since the order was made'.[106]
[106] ROA s 46(4)(a)(ii).
The third issue dealt with in the Additional Evidence is to the effect that the Public Advocate, its delegate and counsel have been acting improperly and misleading SAT and the Magistrates Court. As set out at [80] - [86], the issue in the Appeal is whether the Magistrate was, or appeared to be, biased. I have found that Her Honour was not and did not. The Additional Evidence going to the actions of the Public Advocate, its delegate and counsel do not go to the issue of bias by the Magistrate. In any event, in my view, the materials in the June Affidavit do not provide any basis for an assertion that the Public Advocate, its delegate and counsel have been acting improperly and misleading SAT and the Magistrates Court, or for that matter, this court.
For these reasons, I am of the view that, aside from the issue of delay in filing the appeal, no exceptional circumstances exist to warrant the grant of leave to adduce the Additional Evidence.
What final orders are appropriate?
The appropriate final orders are:
1.The Appellant have leave to commence the appeal out of time.
2.The Appellant have leave to amend her appeal notice in terms of the Amended Appeal Notice filed 7 June 2024.
3.The Appellant only have leave to adduce the evidence contained in her affidavit sworn 7 June 2024 in relation to the issue of leave to appeal.
4.The Respondent be refused leave to adduce further evidence.
5.The oral application by the Respondent to change the name of the Respondent in the appeal be denied.
6.The appeal be dismissed.
My preliminary view is that there should be no orders as to costs, though I will hear from the parties on this issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EC
Associate to Judge Gething
30 AUGUST 2024
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