Wilkins v Fossa - [2025] WADC 66

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 reason for not attending).
[4] MB, page 106.
By notice of appeal filed 3 June 2025, the appellant appeals the Decision. The appellant filed an amended notice of appeal on 15 July 2025.
For the reasons which follow, the appellant has not satisfied me that he was denied procedural fairness during the hearing on 14 May 2025 and has not otherwise established any of his grounds of appeal. The appeal should be dismissed.

Legislative framework

A final order hearing is defined in s 3(1) of the Restraining Orders Act1997 (WA) (ROA) to mean a hearing fixed under s 33(1), s 40(3), s 41(4) or s 43A(7)(b).
Section 42(2) of the ROA provides that:
(2)If a respondent does not attend a final order hearing and the applicant does attend, the court -
(a)if it is satisfied that the respondent was -
(i)in the case of a hearing fixed under section 33, notified of the hearing; or
(ii)in the case of a hearing fixed under section 40(3)(c), 41(4) or 43A(7)(b), served with a summons requiring the respondent to attend the hearing,
is, subject to subsection (3), to hear the matter in the absence of the respondent; or
(b)otherwise, is to adjourn the hearing.
Section 43(1) of the ROA provides that subject to s 42, a court may make a final order of the type, and with the terms, the court considers appropriate, at a final order hearing.[5]
[5] Section 42, ROA.
Section 43A of the ROA deals with the circumstances in which a decision made under s 42 of the ROA in default of appearance may be set aside. Section 43A(1) provides that for the purposes of the section respondent, in respect of a decision to dismiss an application in default of appearance of the applicant means the person who was the respondent at the final order hearing at which the decision was dismissed.
Section 43A(2)(b) of the ROA provides that:
Where the court -
(b)has made a restraining order under section 42 in default of appearance of the respondent, that respondent may within 21 days of the order being served on the respondent,
or such further period as the court may allow at a hearing fixed under subsection (3), apply to the court, in the prescribed form setting out the grounds of the application, to have that decision set aside.
On 13 May 2025, the appellant filed an application to set aside the Final FVRO.[6] Section 43A(3) of the ROA provides that:
(3)On receiving an application under subsection (2) the registrar is to fix a hearing, to be held in the absence of the other party to the proceedings, at which, subject to subsection (4), the court -
(a)where the application was made out of time, is to grant leave for the person to continue the application out of time if satisfied that there was a reasonable excuse for not commencing the application within the time allowed; and
(b)after taking into account the grounds of the application, is to -
(i)adjourn the hearing of the matter to allow the other party to oppose the matter if satisfied that the person who made the application may have had a reasonable cause not to attend the hearing at which the application was dismissed, or the restraining order made; or
(ii)dismiss the application.
[6] MB, page 96.

Pursuant to s 64 of the ROA, a person aggrieved by the decision of a court to 'make any other order in relation to a final order', may appeal that decision in accordance with this section. Section 64(2) provides that if the decision was made by the Magistrates Court, the appeal is to be made in accordance with pt 7 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) unless subsection (6a)(a) applies.

Proceedings in the Magistrates Court

On 23 December 2024, the respondent, was granted an FVRO against the appellant (Interim FVRO).[7] The respondent appeared in person at the hearing on 23 December 2024.[8]
[7] MB, pages 45 - 47.
[8] Transcript of Magistrates Court proceedings MC/CIV/PER/RO/7221/2024, 23 December 2024 (23 December 2024 ts), page 1; MB, page 1.
On 30 December 2024, the appellant, lodged an objection to the Interim FVRO (Objection).[9]
[9] MB, page 72.
By order of the Magistrates Court made on 18 February 2025, the matter was adjourned to a mention hearing on 13 March 2025.[10] The respondent was represented by counsel at the hearing on 13 March 2025. The appellant appeared in person.[11] Counsel for the respondent noted that the shuttle conference on 18 February 2025 did not go ahead as the respondent had indicated that 'he was not given appropriate notice'.[12] By order of the Magistrates Court made on 13 March 2025, the matter was adjourned to 8 April 2025 for shuttle conference.[13]
[10] MB, pages 97 - 98.
[11] Transcript of Magistrates Court proceedings MC/CIV/PER/RO/7221/2024, 13 March 2025 (13 March 2025 ts), page 1; MB, page 9.
[12] 13 March 2025 ts 2 - ts 3; MB, pages 9 - 10.
[13] MB, page 99.
The shuttle conference scheduled for 8 April 2025 did not take place and by order of a learned registrar made on 18 March 2025 was vacated and adjourned to a mention hearing on 8 April 2025.[14]
[14] MB, pages 100 - 101.
Both parties were represented by counsel at the hearing on 8 April 2025 before Magistrate Randazzo and were present at the hearing.[15] At that hearing, the learned magistrate adjourned the matter to a final order hearing on 24 April 2025.[16] In adjourning the matter, the learned magistrate said:[17]
HIS HONOUR: … This application is adjourned to not before 9.30 am on 24 April 2025 for a final order hearing. However, it is only for directions only, and no witnesses are required. A notice of hearing is to be given to the applicant, person protected, and the respondent, person bound. The respondent, person bound, Mr Wilkins remains bound by the order. …
But in any event, I note that Mr Wilkins also seeks to have some legal advice.
[15] Transcript of Magistrates Court proceedings MC/CIV/PER/RO/7221/2024, 8 April 2025 (8 April 2025 ts), page 1; MB, page 14.
[16] 8 April 2025 ts 4; MB, page 17.
[17] 8 April 2025 ts 4; MB, page 17.
The final order hearing proceeded before Magistrate Oliver on 24 April 2025. The respondent was represented by counsel. The appellant did not appear at the final order hearing.[18] On 24 April 2025, the respondent obtained a Final FVRO against the appellant.[19]
[18] Transcript of Magistrates Court proceedings MC/CIV/PER/RO/7221/2024, 24 April 2025 (24 April 2025 ts), page 1; MB, page 19.
[19] MB, pages 74 - 76.
On 13 May 2025, the appellant filed the Application to set aside the Final FVRO.[20] The appellant, in his grounds of application to set aside stated as follows:
After reading the Applicants Affidavit on the 8 April 2025 I have been unwell and I have attended the Illawara Medical Centre and a Dr Fiona Beattie has seen me and explains in a letter the stress I have experience[d] has been a contributing factor for missing my hearing date.
[20] MB, page 96.
On 14 May 2025, the Application was heard before Magistrate Huston. The appellant appeared in person.[21] The learned magistrate sought the appellant's reasons for not attending the final order hearing on 24 April 2024.[22] Having heard from the appellant, the learned magistrate determined that he was not satisfied that there were reasonable grounds for the appellant having missed the hearing on 24 April 2025 when the order was made final.[23]
[21] Transcript of Magistrates Court proceedings MC/CIV/PER/RO/7221/2024, 14 May 2025 (14 May 2025 ts), page 1; MB, page 23.
[22] 14 May 2025 ts 2; MB, page 24.
[23] 14 May 2025 ts 4; MB, page 25.
By order made on 14 May 2025, Magistrate Huston made orders refusing leave to continue the Application (insufficient explanation of reason for not attending).

Appeal to the District Court

The appeal was commenced by notice of appeal filed 3 June 2025. This was within the required 21 days from the date of the Decision.[24] As the Decision was in respect of the making of an order in relation to a final order, the appeal is within the appellate jurisdiction of the District Court.[25] The appellant filed an amended notice of appeal dated 15 July 2025.
[24] Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(3).
[25] Restraining Orders Act 1997 (WA) (ROA) s 64(1)(b)(iii).
The respondent took part in this appeal.
The District Court must decide the appeal on the material and evidence that was before the learned magistrate.[26] The court can give leave to admit other evidence, but only in exceptional circumstances.[27] No such application was brought and the appeal proceeded to hearing on the material and evidence that was before the learned magistrate.
[26] MCCPA s 40(4)(a).
[27] MCCPA s 40(4)(b), s 40(5).
The appeal is by way of a 'reconsideration of the evidence' that was before the magistrate.[28] The court does not hear afresh all of the evidence.[29] Rather, the appeal is to be undertaken by way of a re‑hearing.[30]
[28] District Court Rules 2005 (WA) (DCR) r 50(1).
[29] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[30] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] - [14] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied); 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).
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.[31] There must be a material error of law, fact, discretion or other miscarriage of justice.[32] 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 appealable error.[33]
[31] Coal and Allied [14]; Allesch [23] (Gaudron, McHugh, Gummow & Hayne JJ); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).
[32] 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).
[33] Robinson Helicopter Company 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 appealable error.[34] 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.[35]
[34] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
[35] Marks [124].

Grounds of appeal

The appellant initially brought the appeal on the grounds augmented in the attachment to the notice of appeal dated 3 June 2025. These grounds being as follows:
1.That the appellant was unable to participate in the hearing due to a medical issue, which presvented him from presenting his case.
2.That there is a lack of evidence supporting any claims of violence, and the respondent has provided false information in his affidavit, and the restraining order is unwarranted.
3.That the appellant possesses evidence that demonstrate he has had minimal contact with the respondent for many years.
4.That there are no records indicating a history of violence, and evidence of such has not been submitted.
5.That the appellant believes that the restraining order was made as a result of ongoing family court proceedings regarding parenting arrangements.

Amended grounds of appeal

By order of this court made 24 June 2025, the appellant was granted leave to file an amended notice of appeal by 15 July 2025.
By amended notice of appeal dated 15 July 2025, the appellant brings this appeal on the following five grounds:
1.The magistrate erred by failing to give proper regard to the evidence that was adduced by the appellant and that it established pursuant to s 43A(3)(b)(i) that the applicant may have had a reasonable cause not to attend the hearing on 24 April 2025 at which the restraining order was made a final order (Ground 1).
2.The magistrate was operating on a misunderstanding that there had been a shuttle conference and implicit in that misunderstanding was that the appellant had attended a shuttle conference when in fact the shuttle conference did not take place, and on 8 April 2025 the matter was listed for a final order directions hearing only (no witnesses) on 24 April 2025 (Ground 2).
3.The magistrate failed to afford the applicant the latitude that should have been afforded to a litigant in person and thereby denied the applicant procedural fairness (Ground 3).
4.The magistrate failed to afford the applicant procedural fairness in refusing to adjourn the hearing pursuant to s 67(1)(b) in circumstances where the evidence supported the granting of such an adjournment (Ground 4).
5.The magistrate erred by not properly applying s 43A(3)(b)(i) in that the magistrate should have been satisfied that the applicant may have had a reasonable cause not to attend the hearing at which the restraining order was made and after taking into account the grounds of the application adjourned the hearing to allow the other party to oppose the matter (Ground 5).

The respondent's notice of intention dated 23 June 2025 indicated that the respondent will argue that the primary court's decision should be upheld on the grounds relied on by the primary court in its decision for the following reasons:
1.That the appeal was filed out of time in circumstances where the Final FVRO was made on 24 April 2025 and the time limit for filing an appeal expired on 15 May 2025 (ie 21 days after the date of the Final FVRO being made).
2.No extension of time has been sought and/or obtained for the filing of this appeal.
The appellant was represented by counsel at the hearing of this appeal on 23 September 2025. The respondent was self‑represented. Both parties filed written submissions which they relied on in addition to oral submissions made at the hearing of the appeal. At the hearing of the appeal, the respondent did not press the issue of the appeal having been filed out of time and otherwise responded to the grounds of appeal as they appeared in the appellant's amended notice of appeal.

Issues for determination

The grounds of appeal are numbered differently in the appellant's outline of submissions. In determining the issues, I have adopted the numbering against the corresponding ground as it appears in the amended notice of appeal.
For completeness, I note that during the course of the hearing of this appeal, counsel for the appellant raised an additional submission in respect of the duration of the hearing on 14 May 2025. Counsel for the appellant confirmed that this was not an additional ground of appeal that is being raised and one which the appellant does not wish to have considered for the purposes of the appeal which in any event would need to be the subject of an application for leave. In any event, a review of the transcript does not support the contention raised.
The following issues arise for determination:
1.Did the learned magistrate err in not properly applying s 43A(3)(b)(i) of the ROA (Grounds 1 and 5)?
2.Was the learned magistrate operating on a misunderstanding of fact (Ground 2)?
3.Did the learned magistrate deny the appellant procedural fairness (Grounds 3 and 4)?

1 and 5 - Did the learned magistrate err in not properly applying s 43A(3)(b)(i) of the Restraining Orders Act 1997?

The appellant submits that the learned magistrate's exercise of discretion miscarried in the sense identified in House v The King[36] because the learned magistrate failed to take into account or to give proper regard to the evidence adduced by the appellant at the hearing on 14 May 2025. The appellant points to the following:
1.On 8 April 2025, the appellant applied for and received the respondent's affidavit affirmed 23 December 2024 filed in the Magistrates Court on 23 December 2024 in support of a FVRO (Fossa Affidavit).[37]
2.At the hearing on 14 May 2025, the appellant told the learned magistrate that:[38]
(a)after reading the Fossa Affidavit he felt 'so overwhelmed' and it turned the appellant's 'world upside down' and that he was 'highly affected' by the accusations against him and felt 'so overly stressed' that he began 'making multiple mistakes';
(b)that he was a person who was 'always on time' but after reading the Fossa Affidavit he turned up to work late, missed a Family Court hearing and did not even know he had missed the final order hearing until he received a text message from the court saying that the VRO will be standing;
(c)that his memory loss was due to stress, and produced the letter from Dr Fiona Beattie dated 6 May 2025 (Beattie Letter).
[36] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ).
[37] MB, pages 38 - 44.
[38] 14 May 2025 ts 4; MB, page 26.

The appellant submits that his reasons for failing to appear at the final order hearing were adequately explained and adequate medical evidence was adduced to support a finding by the learned magistrate that the appellant had a reasonable explanation for not attending the final order hearing. The appellant further submits that by not adequately taking the appellant's medical evidence into account, the learned magistrate did not give sufficient weight to that consideration which amounts to an error. The appellant submits that he should have been given the opportunity to provide further medical evidence in support of the Application.
The appellant submits that the learned magistrate erred in failing to be satisfied that the appellant had a reasonable explanation for not having attended the hearing on 24 April 2025 when the Final FVRO was made. The appellant submits that he satisfies the criteria of Allesch.[39]
[39] Allesch (182) - (183) [28] (Gaudron, McHugh, Gummow & Hayne JJ).
The appellant submits that all that was required for an adjournment of the hearing on 14 May 2025 pursuant to s 43A(3)(b)(i) of the ROA was for the learned magistrate to be satisfied that the appellant may have had a reasonable cause, and that is to 'the civil standard of proof'. The appellant submits that in providing the Beattie Letter and his 'evidence' at the hearing as to why he did not attend the hearing on 24 April 2025, he satisfied s 43A(3)(b)(i) of the ROA and the matter ought to have been adjourned. The appellant did not otherwise advance any submissions on the proper statutory construction to be applied to the word 'may' in s 43A(3)(b)(i) of the ROA.
The appellant submits that the learned magistrate erred by not properly applying s 43A(3)(b)(i) of the ROA and that the appellant has suffered a miscarriage of justice.

The respondent submits that the appellant had lodged the Objection to the FVRO on 30 December 2024 and that the matter had progressed for a significant amount of time in the Magistrates Court prior to the Final FVRO. The respondent noted that the appellant had obtained legal representation prior to the Final FVRO hearing on 24 April 2025. The respondent submits that the learned magistrate, having considered the Application, the appellant's oral evidence and the Beattie Letter, was ultimately not satisfied that the appellant had reasonable grounds not to attend the hearing on 24 April 2025 and made a decision consistent with s 43A(3)(b) of the ROA in refusing leave for the appellant to continue with the Application. The respondent further submits that the learned magistrate's decision was based on the correct application of s 43A of the ROA with no good evidence found to grant an adjournment and no miscarriage of justice has occurred.

Disposition

From a review of the manner in which the 14 May 2025 hearing proceeded, it is evident that the learned magistrate sought the appellant's reasons for not attending the hearing on 24 April 2025:[40]
HIS HONOUR: Well, a final family violence restraining order was made on 24 April. Today is 14 May, so you're just inside the 21 days where you don't have to explain to me why it is that you've left it so long to make the application, but you still have to explain to me why it is that you didn't attend the hearing on 24 April. Notice was provided to you for the hearing, and you didn't attend, and the order was made on a regular basis. So I'm looking at your application.
[40] 14 May 2025 ts 2; MB, page 24.
The learned magistrate proceeded to refer to the appellant's grounds as set out in the Application which included the Beattie Letter:[41]
HIS HONOUR: … the applicant's affidavit on 8 April 2025, I have been unwell and I have attended the Illawarra Medical Centre, and a Dr Fiona Beattie has seen me and explains in a letter the stress I have experienced has been a contributing factor for missing my hearing date.
Well, I don't see any letter. You might have it with you, but why didn't you let the court know that you were having some difficulties, and why didn't you let the court know that you were seeing a doctor, and why didn't you let the court know on the day that you were having those difficulties? Because court is a really busy place
… there's a fair bit for you to explain to me today before you be given leave. Have you got the letter from Dr Beattie?
[41] 14 May 2025 ts 2 - ts 3; MB, pages 24 - 25.
A copy of the letter of Dr Fiona Beattie of the Illawarra Medical Centre dated 6 May 2025 referred to in the appellant's grounds in support of the Application was produced to the learned magistrate at the hearing on 14 May 2025 and marked as an exhibit.[42]
[42] MB, page 30.
The learned magistrate thereafter sought the appellant's reasons for not attending court:[43]
[43] 14 May 2025 ts 3; MB, page 25.
HIS HONOUR: I will see that. But you were notified of the hearing. You had lodged an objection. There had been a shuttle conference, so you've been involved in the proceedings since the order was made interim on 23 December. You were served and you lodged your objection, and there were various hearings and orders made. Just for the transcript, this letter wasn't attached to the application. I'm just looking at it for the first time. And it's dated 6 May, which is well after the hearing on 24 April. I will just read the letter:
Today was the first time meeting Harry -
The letter indicates, which is 6 May, which is at that stage 12 days after the hearing. I've taken note of the letter. It will stay with the court now and be marked as an exhibit. But those other things I asked you, why not let the court know, why not contact the court to say that you are feeling stressed, seeking an adjournment, engage a lawyer? Why not do those things?
And:[44]
HIS HONOUR: The question is a very straightforward one, and it's what the legislation requires of you.
WILKINS, MR: Yes.
HIS HONOUR: It can require you to go on oath, but I'm just accepting that what you're telling me is factual. Why didn't you come to the court on the day when the order was made final? You had notice of that hearing. Or why didn't you contact the court to indicate that you were having difficulties or a medical episode? It wasn't until two weeks later, or 12 days later that you actually saw Dr Beattie. But the issue is you didn't attend court, you were notified of the hearing, and you need to explain why it is that you didn't come to court, or at least notify the court that you were having difficulties. That's the issue for today, not the contents of the affidavit.
WILKINS, MR: I see.
HIS HONOUR: Not the other issues. Why didn't you - you've been attending everything you've said. You knew of the hearing and you didn't attend. The legislation requires me to hear from you as to why it is that you didn't. That's what I'm asking you today.
[44] 14 May 2025 ts 3 - ts 4; MB, pages 24 - 25.
As the appellant submits both by appellant's counsel at the hearing of the appeal and in the appellant's written submissions, the appellant put to the learned magistrate that whilst 'he thought he was okay' after reading the respondent's affidavit, 'it turned his world upside down, the accusation' as a result of which the appellant was 'missing everything, like turning up late to work'. At the hearing of the Application, the appellant put to the learned magistrate that:[45]
WILKINS, MR: … I - so I was so overly stressed, I actually didn't even know that I had missed the court date until I got a text message from the court saying that the VRO will be standing. So I was so overwhelmed that - and I also missed my family hearing, which I've been to numerous hearings for the Family Court.
I've never, ever missed them, and I also missed that, and so that's when I went and saw the doctor, and I've realised that I'm - I'm actually highly - I have been so highly affected by it. I'm telling myself I'm okay. It's very unusual behaviour for me. I'm always on time, always - I've always - but it was just way over the top for me, the - what I read, and I want to - and, of course, I don't - I want to stand up for myself and, you know - but, yes, I - I was highly - highly affected by that.
So, yes, there is actually no reason for me to - other than - I've been making multiple mistakes, you know, also missing the Family Court as well. Even though I had had those dates, I'm - yes, I've been highly affected, and that's why there was such a late going to the doctor, because I'm telling myself, 'I'm okay, I'm okay'. Obviously, when I went and saw her, I said, 'This is very unusual behaviour for me. I'm not - like, you know, I don't normally behave like this,' and - - -
[45] 14 May 2025 ts 4; MB, page 26.
Having heard from the appellant, the learned magistrate determined that he was not satisfied that there were reasonable grounds for the appellant having missed the hearing on 24 April 2025 when the order was made final.[46] In reaching his determination, the learned magistrate said:[47]
HIS HONOUR: Mr Wilkins, I'm not satisfied that there are reasonable grounds for you having missed the hearing on 24 April when the order was made final. You've been involved in these proceedings for quite some time. You've had legal advice from the Community Legal Centre that you indicated. The content of the affidavit may well have been something that caused you some surprise, but the records of these proceedings indicate that you've had an involvement right from the point of lodging your objection, which was 30 December 2024, and there have been a number of hearings, a number of orders made, and you were notified of the hearing, you knew about the hearing, you didn't attend the hearing, and you had the opportunity to contact the court or send a lawyer along on your behalf to indicate that you wouldn't be attending for the reasons you've given.
I'm just not satisfied that that's a reasonable explanation for you not having attended the hearing on 24 April when the order was made final. You were well aware and ought to have been well aware from having had legal advice that if you didn't attend the hearing that day it would be made final, and the letter that you provided from your doctor, which was 12 days after that hearing, doesn't demonstrate to the court the position you were in on 24 April. You knew what was expected. You needed to be at court.
If you weren't at court, the legislation makes it clear that the order would be made final. That's the way the Parliament has drafted the laws, and I'm dismissing your application to have the order that was made final set aside. You can still bring an application to have the order cancelled or varied, but it was regularly entered. You knew you had court that day. No provision of any information to the court on the day why it was that you weren't attending. The court is an incredibly busy jurisdiction, particularly with restraining orders. It wasn't new to you. You had been involved in the proceedings for some time. Your application is dismissed.
[46] 14 May 2025 ts 4; MB, page 26.
[47] 14 May 2025 ts 4; MB, page 27.

On my review of the transcript of the hearing on 14 May 2025, the learned magistrate accepted the Beattie Letter into evidence and received oral submissions from the appellant, who was self‑represented at that hearing. The Beattie Letter says that:[48]
1.Dr Beattie met with the appellant on 6 May 2025 for the first time.
2.The appellant has been known to the Illawarra Medical Centre in the past.
3.The appellant has explained to Dr Beattie the high level of stress that he has been under related to his Family Court issues, as well as the most recent VRO and the affidavit that he 'received from his ex-partner'.
4.Through this consult, Dr Beattie can appreciate that the appellant has been under a huge amount of stress and generally feeling overwhelmed.
5.During periods of high stress it is a known side affect that people's usual working memory can become impaired.
6.That Dr Beattie believes that is why he missed the initial VRO hearing as well as Family Court hearing.
[48] MB, page 29.
There is no medical certificate provided certifying the appellant as being unfit to attend the hearing on 24 April 2025.
The appellant's reliance on Taciak is misplaced. In brief terms, Taciakconcerns an appeal to this court in respect of a matter involving two separate applications to set aside a final violence restraining order. In Taciak, a matter which 'has a tortuous history',[49] Ms Taciak failed to appear at the hearing of an application for a violence restraining order as a result of which the interim violence restraining orders were made final.[50] Ms Taciak deposed that she was unable to attend court on the day as she was restricted to her hospital bed and attached a copy of the medical certificate. The medical certificate was undated and made no mention at all that Ms Taciak was confined to a hospital and provides no confirmation whatsoever that Ms Taciak was in hospital.[51]
[49] Taciak v Lyons [2012] WADC 61[2] (Taciak).
[50] Taciak [3].
[51] Taciak [4].
Ms Taciak was successful in obtaining an adjournment pursuant to s 43A(3)(b)(i) in respect of one of the applications made pursuant to an incorrect court form.[52] The matter was thereafter adjourned on three further occasions. Ms Taciak in the meantime, made another application to set aside the final violence restraining order using the correct court form. The original application was heard and in circumstances where Ms Taciak failed to appear, the application was dismissed with costs. Ms Taciak then appealed that decision to this court.[53]
[52] Taciak [9].
[53] Taciak [13].
In dismissing the appeal, Bowden DCJ relevantly observed:[54]
In my opinion, a medical report proffered to the court should specifically refer to the date the patient has advised the doctor they are required to appear in court, when the doctor was first approached to provide the report, the medical condition that causes the patient to be unable to attend the court, the date of the onset of that condition, how long it is likely to last and an acknowledgement within the report that the doctor is aware the report is to be produced to the court.
[54] Taciak [6].
The fact that the learned Chief Magistrate in respect of one of the set aside applications in Taciak adjourned that matter having been satisfied pursuant to s 43A(3)(b)(i), does not establish that the learned magistrate in the present matter erred in not adjourning the hearing on 14 May 2025.
The respondent filed the Fossa Affidavit in support of her application resulting in the granting of the Interim FVRO. The appellant has been involved in the matter since the filing of the Objection on 30 December 2024 following the granting of the Interim FVRO. A review of the procedural history of the matter establishes that at the hearing on 8 April 2025 before Magistrate Randazzo, the appellant, who was legally represented at the time, was told that the matter would be proceeding to a final order hearing on 24 April 2025. No evidence has been adduced by the appellant explaining the reason for his non‑attendance at the hearing on 24 April 2025 other than the Beattie Letter, which as the learned magistrate observed, was obtained some 12 days after the date of the final order hearing.
Nor is it evident to me that there is any error in the learned magistrate's reasoning. The submissions do not in substance raise an issue of appellate intervention on the basis that in making the Decision, the learned magistrate erred in the exercise of his discretion in the sense outlined in House v The King.
In my view, the learned magistrate did not err in reaching his Decision.
These grounds of appeal have not been established.

Ground 2 - Was the learned magistrate operating on a misunderstanding of fact?

Two submissions are made in this regard and appear from Ground 2 in the amended notice of appeal, and somewhat differently, in Ground 2 of the appellant's outline of submissions.[55]
[55] Appellant's outline of submissions filed 10 September 2025, pars 25 - 33 (inclusive).
First, the appellant submits that the learned magistrate was operating on a misunderstanding that there had been a shuttle conference and implicit in that misunderstanding was that the appellant had attended a shuttle conference when in fact the shuttle conference did not take place, and on 8 April 2025 the matter was listed for a final order direction hearing only (no witnesses) on 24 April 2025.
Secondly, as appears from the appellant's outline of submissions and appellant's counsel's submissions at the hearing of the appeal, the appellant submits that the learned magistrate 'mistook' the facts when he stated that the content of the affidavit may well have been something that caused the appellant 'some surprise'.[56] Relevantly:[57]
HIS HONOUR: The content of the affidavit may well have been something that caused you some surprise, but the records of these proceedings indicate that you've had an involvement right from the point of lodging your objection, which was 30 December 2024, and there have been a number of hearings, a number of orders made, and you were notified of the hearing, you knew about the hearing, you didn't attend the hearing, and you had the opportunity to contact the court or send a lawyer along on your behalf to indicate that you wouldn't be attending for the reasons you've given.
[56] 14 May 2025 ts 5; MB, page 27.
[57] 14 May 2025 ts 5; MB, page 27.
The appellant submits that had the learned magistrate not mistaken the facts then he would have been satisfied that the appellant had a reasonable explanation for not having attended the hearing on 24 April 2025 when the Final FVRO was granted.
The appellant submits that the content of the Fossa Affidavit did not cause the appellant to be surprised but rather 'overwhelmed', 'stressed' and 'highly affected'. In making these submissions, reliance was placed on the Beattie Letter and the appellant's submissions at the 14 May 2025 hearing which the learned magistrate 'accepted as being factual' without requiring the appellant to 'go on oath'.[58]

Disposition

[58] 14 May 2025 ts 3 - ts 4; MB, pages 25 - 26.

On my review of the transcript, the learned magistrate said 'There had been a shuttle conference' in the context of narrating the procedural history of the matter.[59] The shuttle conference scheduled for 8 April 2025 did not take place and by order of a learned registrar made on 18 March 2025 was vacated and adjourned to a mention hearing on 8 April 2025.[60]
[59] 14 May 2025 ts 3; MB, page 25.
[60] MB, pages 100 - 101.
I do not consider this to amount to a material error of fact.
Nor can it be inferred that by the use of the words 'some surprise' the learned magistrate in some way failed to have regard to the appellant's explanation for not having attended the hearing on 24 April 2025. The learned magistrate observed that the content of the Fossa Affidavit 'may well have been something that caused' the appellant 'some surprise'. Regard has to be had to the learned magistrate's observations as a whole and meaning cannot be attributed to the words 'some surprise' in isolation, and in a way that can be said, somehow establishes that the learned magistrate diminished the appellant's explanation for not having attended the hearing on 24 April 2025.
To the extent that it is otherwise being alleged that the learned magistrate made some factual error in overlooking the matters the appellant says are relevant to be inferred by the learned magistrate's use of the words 'some surprise', I have reviewed the transcript of the hearing of the Application and such a contention has no merit and is not supported.
This ground of appeal has not been established.

Grounds 3 and 4 - Did the learned magistrate deny the appellant procedural fairness?

The appellant relies on the Beattie Letter and submits that the learned magistrate erred in failing to approach the evidence of that letter with the flexibility that should be afforded to an unrepresented litigant and therefore denied the appellant procedural fairness.
The appellant submits that on a fair assessment of the evidence, had the learned magistrate been dissatisfied with the evidence of Dr Beattie, the appellant should have been afforded the opportunity to obtain and adduce further evidence which would have included the opportunity for Dr Beattie to 'elaborate on her opinion'. The appellant submits that in failing to do so, the learned magistrate denied the appellant procedural fairness.

The appellant as a litigant in person

As a litigant in person, the appellant was entitled to some leniency in relation to compliance with the court rules.[61] The court was required to approach the documents in which he articulated his case with some flexibility.[62] The court needed to be astute to ensure that, in a poorly expressed or unstructured document in which he set out his case, there was no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[63] 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'.[64]
[61] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
[62] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart [10] (Pritchard J).
[63] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).
[64] 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 a court dealing with a litigant in person 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'.[65] 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.[66] 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.[67]
[65] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic).
[66] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon & 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).
[67] Zerjavic [74] - [75].
As was observed by the Court of Appeal in Zerjavica self‑represented litigant is subject to the practice and procedure of the court as much as any other litigant.[68]

Disposition

[68] Zerjavic [75] - [76].

In this regard, I have considered the specific issues raised by counsel for the appellant and the submissions made on behalf of the appellant that the learned magistrate failed to afford the appellant procedural fairness. As part of my analysis, I have also had regard to the following submissions made by the respondent:
1.The learned magistrate prompted the appellant on where to stand and how to begin, accepted the late medical letter, and repeated clear questions to focus on the legal issue under s 43A (ie why the appellant did not attend the hearing on 24 April 2025).
2.The learned magistrate explained the purpose of the questions and rephrased the questions in layman terms.
3.A review of the transcript of the hearing on 14 May 2025 before the learned magistrate does not support that the appellant was 'cut short' during the hearing.
The principles of procedural fairness were summarised by the Court of Appeal in Defendi v Szigligeti:[69]
45It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
46However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.
47Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
48The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.
[69] Defendi v Szigligeti [2019] WASCA 115 [45] - [48] (references omitted) (Defendi); See also: Davie v Manuel [2024] WASCA 21 [87] - [91] (Davie); Frigger v Frigger [2023] WASCA 103 [38] - [41] (judgment of the court) (Frigger); Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 [63] (reasons of the court) (Sovereign Grange); Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin JA & Murphy JA agreed) (Rowe).
The Court of Appeal in Defendi then referred to MCCPA s 13 noting that it 'provides relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible'.[70] As was observed by Gething DCJ (as his Honour then was) in WWW v DET[71] this principle applies to applications under the ROA.
[70] Defendi [50].
[71] WWW v DET [2024] WADC 84 [189]; see also s 72(1)(a) of the ROA.
The content of procedural fairness also needs to be understood having regard to the nature of the proceedings.[72]
[72] Frigger [42].
It is in this overall context that the question arises as to whether the appellant was afforded procedural fairness by the learned magistrate at the hearing on 14 May 2025. From the review of the manner in which the hearing proceeded on 14 May 2025, it is evident that the learned magistrate:
1.Upon the matter being called, invited the self‑represented litigant to the bar table and explained the preliminary process of appearing in court (ie name, purpose of appearance).
2.Explained to the appellant that the hearing on 14 May 2025 was to be a leave hearing. Went on to explain to the appellant that this meant that the appellant would need to obtain leave of the court to continue with the Application.
3.Explained to the appellant that he would need to provide the court with an explanation as to why he did not attend the 24 April 2025 hearing in circumstances where notice of that hearing had been given.
4.Sought the appellant's position a number of times during the course of the hearing as to why he did not attend the 24 April 2025 hearing in the circumstances.
5.Having looked at the Application, observed that the Beattie Letter was not included, asked the appellant for a copy and proceeded to admit the Beattie Letter into evidence as an exhibit.
6.Asked the appellant to explain why he did not at least notify the court that he was having some difficulties, stressed, seeing a doctor and required an adjournment of the final order hearing of 24 April 2025 in circumstances where he knew of the hearing.
7.Asked the appellant to explain why he had not engaged a lawyer.
8.'Accepted as being factual' a number of matters put by the appellate during the course of the hearing without requiring the appellant to 'go on oath'.
I have also had regard to the procedural history of the matter leading up to the hearing on 14 May 2025.
First, the appellant had been participating in the proceedings from the time of lodging the Objection on 30 December 2024 and by the time of the hearing on 8 April 2025, had been present, with the benefit of counsel, when it was made clear by the presiding magistrate at that hearing that the hearing on 24 April 2025 was to be the final order hearing.[73]
[73] 8 April 2025 ts 4; MB, page 17.
Secondly, between that time and the appellant attending the appointment with Dr Beattie on 6 May 2025 (having by that stage obtained the Fossa Affidavit dated 23 December 2024 on 8 April 2025), and thereafter filing the Application on 13 May 2025, the appellant had the opportunity to produce to the court the evidence and materials he sought to rely on at the Application on 14 May 2025.
Thirdly, whilst the appellant appeared in person at the 14 May 2025 hearing, at that hearing, the appellant produced to the court the evidence and materials he sought to rely on in support of the Application being the Beattie Letter, which was accepted into evidence by the court.[74]
[74] MB, page 30.
Fourthly, that having considered these matters, and the appellant's submissions during the course of the 14 May 2025 hearing, the learned magistrate reached the Decision. A trial judge's duty does not extend to advising a self‑represented litigant as to how his or her rights should be exercised.
The timing of the appellant's request for the Fossa Affidavit, which had been part of the lower court file since 24 December 2024, resulted in the appellant on his submission being privy to the affidavit's contents on 8 April 2025. This was put by the appellant to the learned magistrate at the hearing on 14 May 2025, and the learned magistrate accepted into evidence and marked as an exhibit,[75] the Beattie Letter which the appellant placed reliance on in this context.[76]
[75] MB, page 30.
[76] 14 May 2025 ts 4; MB, page 25.
On my review of the transcript, it does not seem to me that the appellant was denied the opportunity to make submissions in respect of any of these matters. Ultimately, the learned magistrate was not satisfied that there were reasonable grounds for the appellant having missed the hearing on 24 April 2025 having had regard to the submissions of the appellant and the Beattie Letter.
In my view, on the basis of both a review of the transcript of the hearing on 14 May 2025, and the materials in the lower court file, the appellant has not satisfied me that the appellant was denied procedural fairness in relation to the Decision.

This ground of appeal has not been established.

Conclusion

For the reasons which I have set out above, the appeal should be dismissed.
I will hear from the parties on the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
Associate
1 OCTOBER 2025