Legal Research
Cases
Wilkins v Fossa

Wilkins v Fossa

Case [2025] WADC 66 1 October 2025

Restraining Orders Act 1997 (WA)

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WILKINS -v- FOSSA [2025] WADC 66
CORAM:   JEYAMOHAN DCJ
HEARD:   23 SEPTEMBER 2025
DELIVERED          :   1 OCTOBER 2025
FILE NO/S:   APP 28 of 2025
BETWEEN:   HARRY WILKINS
Appellant
AND
MICHELLE ISABELLA FOSSA
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HUSTON
File Number            :   MC/CIV/RO/PER/7221/2024

Catchwords:

Appeal from Magistrates Court - Restraining Orders Act1997 (WA) - Whether learned magistrate erred in applying s 43A(3)(b)(i) of the Restraining Orders Act 1997 (WA) in not granting an adjournment - Whether appellant was denied procedural fairness - Litigant in person - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Ms L J Fernandez
Respondent	:	In person

Solicitors:

Appellant	:	Hammond Legal
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Frigger v Frigger [2023] WASCA 103
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
House v The King (1936) 55 CLR 499
Jones v Darkan Hotel [2014] WASCA 133
Marks v Coles Supermarkets [2021] WASCA 176
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23
Nobarani v Mariconte [2018] HCA 36
Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550
Rowe v Stoltze [2013] WASCA 92
Saunders v The Public Trustee [2015] WASCA 203
Sethi v Bhavsar [2020] WASCA 52
Smart v Power [2019] WASCA 106
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142
Taciak v Lyons [2012] WADC 61
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woodley v Woodley [2018] WASCA 149
WWW v DET [2024] WADC 84
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

JEYAMOHAN DCJ:

Introduction

On 23 December 2024, the respondent, Michelle Isabella Fossa, was granted an interim family violence restraining order (FVRO) against the appellant, Harry Richard Wilkins (Interim FVRO).[1]
[1] Magistrates Court lower court file MC/CIV/PER/RO/7221/2024 (MB), pages 45 - 47.
On 24 April 2025, the respondent obtained a final FVRO against the appellant (Final FVRO).[2]
[2] MB, pages 74 - 76.
On 13 May 2025, the appellant filed an application to set aside the Final FVRO.[3] The set aside application was listed for hearing on 14 May 2025 before Magistrate Huston (Application).
[3] MB, page 96.
By order made on 14 May 2025, Magistrate Huston made orders in the Application in the following terms (Decision):[4]
Leave Refused to continue the Application of the Person Bound to Set‑Aside the Final Order made 24 April 2025 (insufficient explanation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilkins v Fossa

Details

AGLC: Wilkins v Fossa [2025] WADC 66
Case: [2025] WADC 66
Decision Date: 1 OCTOBER 2025

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, Wilkins, against the respondent, Fossa. The case originated in the Magistrates Court of Western Australia, where the appellant sought an adjournment under the Restraining Orders Act 1997 (WA). The primary dispute centred around whether the learned magistrate erred in applying section 43A(3)(b)(i) of the Act by not granting an adjournment. The appellant, appearing as a litigant in person, argued that the decision denied him procedural fairness. The appeal hinged on the specific facts of the case, with the appellant asserting that the magistrate did not adequately consider the unique circumstances warranting an adjournment.

The central legal issue before the court was whether the magistrate had erred in the application of section 43A(3)(b)(i) of the Act, specifically in relation to the denial of an adjournment. The appellant contended that the magistrate's failure to grant the adjournment constituted a breach of procedural fairness. The court was required to examine whether the magistrate had sufficient grounds to refuse the adjournment and whether the appellant's right to a fair hearing was compromised by this refusal. Additionally, the court had to assess whether the appellant, as a litigant in person, was afforded all necessary procedural protections under the Act.

In determining the appeal, the court closely examined the magistrate's decision-making process and the application of section 43A(3)(b)(i) of the Act. The court found that the magistrate had not erred in refusing the adjournment as the appellant had not demonstrated any exceptional circumstances that warranted such a delay. The court held that the magistrate had acted within the bounds of procedural fairness and had appropriately considered the appellant's submissions. The unique facts of the case did not necessitate a departure from the standard application of the Act. Consequently, the appeal was dismissed, affirming the magistrate's decision.

Orders