Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

File Number : MC/CIV/PER/RO/844/2025 & MC/CIV/PER/RO/870/2025

Appeal from Magistrates Court - Restraining Orders Act 1997 (WA) - Final Violence Restraining Order in place - Whether exceptional circumstances exist to warrant the grant of leave to adduce additional evidence - Appeal dismissed

Magistrates Court (Civil Proceedings) Act 2004 (WA)

Restraining Orders Act 1997 (WA)

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

Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

Chin v Legal Practice Board of Western Australia [2011] WASCA 110

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

De Alwis v The State of Western Australia [No 2] [2015] WASCA 42

Defendi v Szigligeti [2019] WASCA 115

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Frigger v Frigger [2023] WASCA 103

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Hastings v Cassells [2025] WADC 49

Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319

Jones v Darkan Hotel [2014] WASCA 133

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Marks v Coles Supermarkets [2021] WASCA 176

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

MTI v SUL [No 2] [2012] WASCA 87

Murray v Feast [2023] WASC 273

Nobarani v Mariconte [2018] HCA 36

Nugawela v American Express Australia Ltd [2016] WADC 170

Ogbonna v CTI Logistics Ltd [2021] WASCA 25

R v Kelly; Ex parte Hoang van Duong (1981) 28 SASR 271

Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148

Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342

Reynolds v Rayney [2023] WASCA 144

Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550

Rowe v Stoltze [2013] WASCA 92

Sampey v Doherty [2024] WASCA 105

Saunders v The Public Trustee [2015] WASCA 203

Shilkin v Taylor [2011] WASCA 255

Smart v Albuquerque [2011] WASCA 231

Smart v Power [2019] WASCA 106

Smart v Prisoner Review Board (WA) [2012] WASC 48

TAH v The Public Advocate [2024] WADC 71

Tobin v Dodd [2004] WASCA 288

Total Value Auto & Finance Pty Ltd v Small [2004] NSWSC 1040

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Wise v Keilo Jane Wise as Executrix of the Estate of Audrey Vera Wise [2025] WASCA 98

Woodley v Woodley [2018] WASCA 149

Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2

WWW v DET [2024] WADC 84

Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

1. By notice of appeal filed 17 July 2025, the appellant appeals against the decision of Magistrate Keane made on 18 March 2025 granting the respondent a final family violence restraining order (FVRO) in Magistrates Court proceedings MC/CIV/PER/RO/870/2025 against the appellant.
2. For the reasons which follow, leave to appeal out of time is allowed, leave to adduce the additional evidence is not granted and the appeal is otherwise dismissed.

1. Both parties applied for a FVRO against the other, the subject of the following proceedings before the lower court:
   1. Magistrates Court proceeding MC/CIV/PER/RO/844/2025 (BT Application)
   2. Magistrates Court proceeding MC/CIV/PER/RO/870/2025 (LG Application)
2. Both applications were the subject of a final determination before the learned magistrate at the hearing on 18 March 2025. The procedural history in respect of each of the applications can be summarised as follows.

1. On 6 February 2025, the appellant was the applicant for a FVRO against the respondent.[1] On 6 February 2025, the appellant was granted an interim FVRO against the respondent (844/2025 Interim FVRO).[2] On 7 February 2025, the respondent, lodged an objection to the Interim FVRO (844/2025 Objection).[3]
2. By application dated 7 February 2025, the respondent applied to vary the 844/2025 Interim FVRO to allow the respondent to enter and remain in the family home (844/2025 Variation Application).[4]

1. On 7 February 2025, the respondent was the applicant for a FVRO against the appellant (LG Application).[5] On 7 February 2025, the respondent was granted an interim FVRO against the respondent (870/2025 Interim FVRO) following a hearing of the application.[6]
2. On 12 February 2025, the appellant lodged an objection to the Interim FVRO (870/2025 Objection).[7]

1. Both applications proceeded to final hearing on 18 March 2025 before Magistrate Keane, with the 870/2025 Application being by way of a cross-application to the appellant's 844/2025 Application.
2. Both parties appeared in person at the hearing on 18 March 2025, with the respondent having the assistance of an interpreter for the purposes of the hearing. The transcript of the hearing of both applications forms part of the 870/2025 MB.[8]
3. The learned magistrate determined as follows on 18 March 2025 (Decision):
   1. The BT Application be dismissed and restraining order cancelled.[9]
   2. A final FVRO (Final FVRO) be granted in respect of the LG Application pursuant to s 60(2) of the Restraining Orders Act 1997 (WA) (ROA) in favour of the respondent.[10]

1. The appeal is brought pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) which provides that an appeal from a judgment in a civil case before the Magistrates Court lies to the District Court.
2. 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 MCCPA unless s (6a)(a) applies.
3. The appeal was commenced by notice of appeal filed 17 July 2025 and leave is required to proceed with the appeal. Section 40(3) provides that unless leave is given, appeals must be commenced within 21 days after the date of judgment. 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.[11]
4. The respondent intends to take part in this appeal.
5. The District Court must decide the appeal on the material and evidence that was before the learned magistrate.[12] The court can give leave to admit other evidence, but only in exceptional circumstances.[13] No such application was brought and the appeal proceeded to hearing on the material and evidence that was before the learned magistrate.
6. The appeal is by way of a 'reconsideration of the evidence' that was before the magistrate.[14] The court does not hear afresh all of the evidence.[15] Rather, the appeal is to be undertaken by way of a rehearing.[16]
7. In an appeal by way of rehearing, 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.[17] There must be a material error of law, fact, discretion or other miscarriage of justice.[18] 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.[19]
8. The onus is on the appellant to demonstrate the existence of an appealable error.[20] 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.[21]

1. By notice of appeal filed 17 July 2025, the appellant appeals against the Decision.
2. The grounds of appeal appear variously in the notice of appeal; the appellant's affidavit in support of application for leave to appeal out of time sworn 17 July 2025 (First BT Affidavit); the appellant's affidavit in support of application for leave to adduce additional evidence sworn 18 August 2025 (Second BT Affidavit); and are further augmented in the appellant's outline of submissions dated 5 August 2025.
3. Having had regard to each of the matters raised, the grounds can be summarised as follows:
   1. Intimidating conduct by the learned magistrate (Ground 1).
   2. Exclusion of relevant evidence (Ground 2).
   3. Hearing rushed despite complexity of matter (Ground 3).
   4. Premature conclusion by the learned magistrate (Ground 4).
   5. Exclusion of witness testimony (Ground 5).
   6. Unequal and adversarial treatment (Ground 6).
   7. Findings made without proper evidentiary foundation (Ground 7).
   8. Dismissal without reasoned explanation (Ground 8).
   9. Prejudice and interests of justice (Ground 9).
4. By the respondent's notice of intention dated 24 July 2025, the respondent submits that the primary court's Decision should be upheld on the grounds relied on by the primary court in circumstances where the appellant's grounds of appeal lack merit and there is no error of fact or law in the Decision.
5. The appellant relies on the matters deposed to in the appellant's affidavits and on the appellant's outline of submissions.
6. The respondent relies on the matters deposed to in her affidavit sworn 25 August 2025 (LG Affidavit).

1. For completeness, I note subsequent to the hearing of the appeal on 2 September 2025 being concluded the court received correspondence from the parties.
2. By letter from the court dated 30 September 2025, both parties were informed in writing that in circumstances where both parties are self-represented, the court has addressed procedural queries raised by the parties but, that as the hearing of the appeal is otherwise concluded, it would not be appropriate for either party to correspond with the court about matters of substance in respect of the hearing of the appeal.[22]

Administrative query regarding Exhibits 1 and 2 in the 844/2025 MB

1. During the hearing of the appeal and by correspondence to the court, the appellant raised an administrative query regarding the referencing of exhibits by the Magistrates Court in lower court file MC/CIV/PER/RO/844/2025. Specifically, the appellant indicated that Exhibits 1 and 2 in the 844/2025 MB:
   1. are incorrect and contain 'deleted exhibits' that were never tendered at the final hearing on 18 March 2025; and
   2. that the correct exhibits are as follows: Exhibit 1 - USB[23] - break child's properties; Exhibit 2 - USB - return home from police station.
2. The index of documents of 844/2025 MB describes Exhibit 1 as 'Incident Reports x 3 and Exhibit 2 as 'Department of Education - Letter of No Results receipt.pdf'. Each of Exhibits 1 and 2 listed, thereafter contain a series of documents which appear under each Exhibit and number several pages in total.[24] No exhibits are listed in lower court file MC/CIV/PER/RO/870/2025. The appellant takes issue with the description of Exhibits 1 and 2 in the index of documents to lower court file MC/CIV/PER/RO/844/2025.
3. However, on my review of the lower court transcript of the hearing on 18 March 2025, the exhibits tendered correspond with the description submitted by the appellant. That is, Exhibit 1 is tendered as 'USB Breaking Child's Property' and Exhibit 2 is tendered as 'USB Return Home After Police Station'.[25]
4. A review of the transcript indicates that there was extensive exchange as between the learned magistrate and the appellant about the content of Exhibits 1 and 2 and that the USB's were played during the course of the lower court hearing on 18 March 2025 and tendered into evidence as Exhibits 1 and 2.[26]
5. On my review of the transcript, I can see that Exhibit 1 is said to contain video and photographic recordings of the respondent and the parties' child and are said to go to the respondent's conduct. By way of example:[27]

HER HONOUR: So what do you have recordings of?

[BT]: So there is an incident. She deliberately damaged a child's property. She throw - - -

HER HONOUR: She deliberately damaged your child's property?

[BT]: Yes. And, also, there are other photos - yes, photos and images. So the video folder - so there's names listed. So I'm submitting the document with 10 additional evidence regarding photos and the videos listed. One of them is breaking properties.

HER HONOUR: Is the file called Breaking Property?

[BT]: Breaking Child's Property and Breaking Home Property. There are images and also video. Yes, that's the video.

HER HONOUR: So what do you say happened with that video, [BT]?

[BT]: Yes. Respondent is yelling at me that is with something, then starting to become very angry, just smashing the child's books from the desk, from the bar area because she thinks that I didn't put that properly and didn't tidy it up, which I did. She was just very angry on the day, then threw all the child's stuff on the floors. My child is organising herself. I was just sitting quietly on the sofa, just when the - when she has become less angry and starting to collect, I was really shocked.

1. Exhibit 2 is said to contain a video of the respondent having gone to the Mirrabooka Police Station. Relevantly:[30]

[BT]: That's the first time she make a false police report.

HER HONOUR: 28 August or October?

[BT]: My apologies. It's October.

HER HONOUR: So were you made the subject of a police order, were you? Did you get a police order against you?

[BT]: Yes, I did.

HER HONOUR: Was the police order in place at the time you made the recording?

[BT]: I haven't - the police haven't come yet. So she said she got the police order. So the police who served the order haven't come yet.

HER HONOUR: You're saying that footage shows her saying to you, 'The police are going to give you an order'?

[BT]: Yes. She said - - -

...

HER HONOUR: Is it that she went to the police station?

[BT]: Yes, your Honour.

HER HONOUR: All right. That video is exhibit 2.

1. The admissibility of this evidence was not a matter that was determined by the learned magistrate.
2. The appellant had, in my view, ample opportunity to produce to this court the evidence and materials he sought to rely on, or seek the time of the court to allow him this time. This issue was not raised by the appellant prior to the hearing of the appeal including during the programming of the appeal to hearing when the parties appeared before a registrar of this court on 19 August 2025.
3. Nor, in raising the matter during the hearing of the appeal, did the appellant, seek to adjourn the hearing of the appeal to allow enquiries to take place with the Magistrates Court about the description of the exhibits and the documents included in the 844/2025 MB against Exhibits 1 and 2. The appellant did not act on this opportunity.
4. Further and in any event, having reviewed the transcript of the hearing on 18 March 2025 and the appellant's submissions and answers in response to the learned magistrate as to the nature of the evidence said to be contained in the USB's that formed part of Exhibits 1 and 2, it is not clear to me that the evidence would have advanced the appellant's grounds of appeal in any meaningful way.

1. Both parties were self-represented at the hearing of the appeal on 2 September 2025. Having had regard to the lower court file and noting that the respondent appeared with an interpreter at the hearing on 18 March 2025, both parties were expressly given the opportunity to adjourn the hearing of the appeal to the extent they were of the view that either of them were of the view that the assistance of an interpreter would be required. Both parties did not act on this opportunity and confirmed that they were minded to proceed with the hearing of the appeal.
2. As the appellant is a litigant in person in the appeal, he is entitled to some leniency in relation to compliance with the court rules.[31] I approach the documents in which he articulates his appeal with some flexibility.[32] I need to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[33]
3. At the same time, I also need to ensure that any latitude given to the appellant as a litigant in person does not deprive the respondent of her rights to procedural fairness and a fair hearing.[34]

1. The grounds of appeal can be categorised into the following issues for determination:
   1. Leave to appeal out of time.
   2. Leave to adduce additional evidence.
   3. Was there a denial of procedural fairness because the learned magistrate did not give the appellant sufficient opportunity to present his case? (Grounds 3 and 9)
   4. Was there a denial of procedural fairness because the learned magistrate did not give the appellant sufficient opportunity to adduce evidence? (Grounds 2 and 5)
   5. Was the learned magistrate biased? (Grounds 1, 4, 6, 7, 8 and 9)

1. An appeal cannot be commenced more than 21 days after the date of judgment, unless the District Court gives leave to do so.[35] The last date for filing a notice of appeal was 8 April 2025.
2. The appellant's notice of appeal was filed on 17 July 2025 and was therefore filed out of time. The appellant in the First BT Affidavit deposed to the reasons for the delay in the filing of the notice of appeal.[36] As the delay was only short and there was no prejudice to the respondent, leave to proceed with the appeal is granted.
3. I now turn to the substantive issues for determination in this appeal.

1. The appellant seeks leave to adduce the following:
   1. Police incident report (No 050225220019175) dated 5 February 2025.
   2. Respondent's sworn Family Court Financial Statement (Form 13) filed by the respondent in the Family Court of Western Australia on 15 March 2025.
   3. A NAATI-certified English translation of an audio recording of a telephone conversation between the respondent and a third party recorded on 18 November 2024 (NAATI Translation).
   4. A set of NAATI-translated WeChat messages between the appellant and the various persons said to be related to the respondent dated November and December 2024 (NAATI WeChat).
2. The appellant submits that this evidence is directly relevant and probative of key issues in dispute in the FVRO proceedings, including in respect of the respondent's credibility and the cultural context in which certain actions are said to have occurred.
3. I have had regard to the appellant's submissions and documents in support of the application for leave including the matters set out in the First BT Affidavit and the transcript of the hearing before the lower court on 18 March 2025. The errors alleged to have been made by the learned magistrate, on a review of the transcript of the hearing on 18 March 2025 as against the submissions put by the appellant, go to the following: First, the learned magistrate's determination not to admit into evidence the NAATI Translation and the NAATI WeChat. Secondly, the learned magistrate not being persuaded by the appellant's submissions in respect of the police incident and the respondent's financial circumstances. As to the respondent's financial position, the appellant seeks leave to adduce the Financial Statement to establish inconsistency in the evidence of the respondence. The appellant submits that this goes to the respondent's credibility.

1. At the hearing of an appeal a party must not adduce evidence that was not adduced in the primary court except with leave of the court.[37]
2. Leave to admit additional evidence should not be used to rectify perceived weaknesses in a case already presented.[38] Ordinarily, a court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence will have led to a different outcome if it had been led in the court below.[39]
3. The appellant has not advanced, in any meaningful way, where the evidence sought to be adduced, sat in respect of the appeal before this court.
4. No exceptional circumstances have been established by the appellant as to why it should be permitted and the production of the 'new' evidence (ie the police incident report dated 5 February 2025 and the respondent's Family Court Financial Statement filed 15 March 2025), could not, in my view lead to a different outcome for the appellant if he had let it in his original application.
5. Further, and for completeness, I observe as follows.
6. First, that whilst the police incident report dated 5 February 2025 was not before the lower court in the form of an exhibit, matters the subject that police incident, which the appellant now seeks leave to adduce as additional evidence, was put to the learned magistrate by the appellant at the hearing on 18 March 2025. Relevantly:[40]

[BT]: On 5 February, which is the first day, she took a red card, which she want to [name redacted] before I come into the school. She already promised the police - the police called me on the day, they - they say I should take [name redacted] on the 5th. Then there become a very embarrassing moment in the school, and [LG] - we've been called to the police - called to the principal's office, the principal asking what's happening. She said I - she got two police order against me. She got a family restraining order application against me. She - essentially, say I'm a - a bad guy in front of the principal. That's very humiliating. I told principal there was a prior arrangements through police I taking the - the child on the day.

HER HONOUR: All right. She told you all - the school about all of these things, and it resulted in a very embarrassing incident for you with the principal at the school. Is there anything else, [BT]?

[BT]: And the - the principal called the police - a (indistinct) of police - - -

HER HONOUR: No. I - I'm not asking for more details about that incident. Is there any other behaviour - - -

1. Secondly, that the learned magistrate, having heard from the appellant as to the appellant's reliance on the NAATI Translation and NAATI WeChat at the hearing on 18 March 2025, determined that this evidence was not to be admitted on the basis of relevance:[41]

[BT]: Yes. Your Honour, the - the biggest thing is she - she has ulterior motive. She - I got a recording for that. She - she said - when she calling a friend, she said multiple times, 'I want to get someone' to kick me out of the house. 'So I - I want to get someone,' I think. Later on, she did this through police. She used false police report to remove - remove me from the house. So what she did. So the - the - the recordings has been translated. So I would like to - the honourable court to accept the recordings.

HER HONOUR: What recordings? Are they on this USB?

[BT]: That's primarily speaking in Chinese, so - so - - -

HER HONOUR: All right. Well, can you hand me the transcript, please. Has this been verified?

[BT]: It has - it has been NAATI translated.

HER HONOUR: All right. This is a really long translation. So I've just read - all right. I can't see. I'm up to the next lot of conversations. I can't see where she is falsely saying - she's saying that she will falsely call you to police to get you out of the house. You might need to take me to that page, because this is pages and pages, [BT].

...

HER HONOUR: - - - that you say indicates she has fabricated these allegations against you or called the police - sorry, pass - could you just hand that back. Thank you - please direct me to it. - - -

...

[BT]: Yes. On the first page, she says, 'I'm going to buy my mum a ticket to get her over here'.

HER HONOUR: Yes. I saw that.

[BT]: 'But the case is that I need to get him out of here first. Otherwise, he's going to attend this place after (indistinct) so she essentially want to get her mum from China, and then get police kick me out the house. So just her - - -

HER HONOUR: But that doesn't mean that she doesn't think you should be kicked out of the house. It doesn't mean that it's false. Yes, it's quite clear that she wants you out of the house, and she has applied to have you have - taken out of the house. But where is it that that - that she's making things up to do that?

...

1. And, in respect of the NAATI WeChat:[42]

[BT]: Your Honour, I would like to present evidence from family members, which is a translation from respondent's grandparent - grandpa - and also her - her cousin.

HER HONOUR: Well, family members messaging you?

[BT]: I messaged them to get in support, because in - - -

HER HONOUR: You messaged her family to get support for yourself?

[BT]: They are very supportive, your Honour. So they all think the same way as I'm thinking. She got - - -

HER HONOUR: So what - but you've messaged her family members, and they're supporting you?

[BT]: They support me, because they think - - -

HER HONOUR: All right. Move on, please, [BT]

[BT]: Because they thinking - - -

HER HONOUR: No. You cannot say what other people think.

1. Having had regard to these 'alleged errors' in the context of the appellant's application for leave to adduce additional evidence, I am of the view that there are no exceptional circumstances that exist to indicate that the discretion should be exercised to allow the production of the evidence of the same alleged behaviours that pre-date the learned magistrate's decision, nor, for 'new evidence'. Importantly, none of the reasons submitted by the appellant, nor the evidence itself, enlivens the discretion for me to permit the additional evidence.
2. In any event, the materials the appellant now seeks to adduce do not assist the court in determining whether the learned magistrate made an error of the nature contended for. The appellant's decision to apply to produce those materials reveals no exceptional circumstances.
3. In my view therefore, leave should not be granted to produce any of the additional evidence the subject of this application.
4. Leave to admit additional evidence in respect of this appeal is refused.

Was there a denial of procedural fairness because the learned magistrate did not give the appellant sufficient opportunity to present his case? (Grounds 3 and 9)

1. The appellant's submissions refer to the conduct of the learned magistrate during the hearing on 18 March 2025 and the manner in which the proceedings were conducted. Relevantly, the appellant submits that the learned magistrate rushed the hearing in a manner which was prejudicial to the appellant and contrary to the interests of justice.
2. In support of this, the appellant points to the following:
   1. That the learned magistrate insisted that the hearing conclude that day stating that she would not be available again until November.
   2. That the learned magistrate was dismissive of the appellant's concerns about the truncated hearing time.
   3. That another magistrate had estimated the matter would require four or five days.
   4. That the learned magistrate denied the appellant procedural fairness by repeatedly yelling at the appellant during the presentation of his evidence without valid reason and that this conduct was intimidating.
3. The respondent submits that the appellant was given full opportunity to present his case and that evidence does not demonstrate that the appellant was deprived of the opportunity to present his case.

1. These grounds rely on a failure to accord proper procedure to the appellant. Mason J in Kioa v West,[43] said as follows:

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject-matter, and the rules under which the decision-maker is acting ...

1. In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.
2. The term natural justice generally refers to the requirement that a party to proceedings be given a fair hearing. This normally requires that each party be given a reasonable opportunity to present their case or to answer the case against them, by evidence and argument.[44] What is necessary to satisfy the requirement that a party be given a reasonable opportunity to present their case cannot be determined in the abstract but only in the context of the particular case under review.[45]
3. The principles of procedural fairness were summarised by the Court of Appeal in Defendi v Szigligeti:[46]
   1. It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
   2. However, 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.
   3. Although 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.
   4. The 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.
4. 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'.[47] As was observed by Gething DCJ (as his Honour then was) in WWW v DET[48] this principle applies to applications under the ROA.
5. The content of procedural fairness also needs to be understood having regard to the nature of the proceedings.[49]
6. 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 18 March 2025. As observed earlier, as a litigant in person, including at the hearing on 18 March 2025, the appellant was entitled to some leniency in relation to compliance with the court rules.
7. 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'.[50] 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.[51] 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.[52] As was observed by the Court of Appeal in Zerjavic a self-represented litigant is subject to the practice and procedure of the court as much as any other litigant.[53]
8. The matter proceeded to a full day hearing on 18 March 2025.
9. The learned magistrate explained in detail the court's hearing process and evidentiary threshold to be met to both parties:[54]

HER HONOUR: But before we have a break - just take a seat. I just am going to explain something to both of you in terms of how the hearing will proceed today. So I have just explained to you the order of who will go first. And for each of you, as I say, there are two purposes to your case. One is to say why you should get an order against the other person. And then the other part is to say why you should not have an order against you. So you need to be aware that you are both an applicant and a respondent - to put it another way, an applicant and a defendant, defending against the application being made against you.

If you wish the court to take something into account, it needs to be in the form of evidence. So anything you tell me from where you are seated now, that is not evidence. That is giving me information. That is making an argument or a submission. Evidence comes, really, in two main forms. It's what witnesses say in the witness box and it's any exhibits you may have. So if you have screenshots of messages or you have photographs or recordings of video or telephone messages, whatever that may be. Do not wait until the end for me to say, 'Would you like to sum up? Tell me what your position is', and then you start telling me all of these extra things and there are extra things you want to show me.

If you want me to take it into account, if you want the court to take it into account, you need to lead it as part of your evidence. You also need to give the opposing side an opportunity to respond to any challenges you make against their evidence or what they say. So if you say that someone is lying, you need to say to them, 'You are lying, aren't you? This is not what happened. It happened this way. You didn't say this. You actually said this.' You need to give the other person an opportunity to respond and to explain themselves, if they are able to explain themselves.

... And it means that there might be less weight given to what you say because I haven't heard from the other person for their view as to that challenge. So you can't ambush the other person.

So that is something you need to think about when you're asking questions of any witnesses from the other side. And I'm explaining all of this to you because you don't have lawyers.

...

So I will be required to make findings as to whether people are telling the truth or they are lying, whether certain things did or did not happen. Those findings can be used in other courts. So it could be used, for example, in the Family Court. As I say, there are processes to be able to do that. But the reason I'm explaining this is because sometimes people would prefer not to have confusion between different courts and just to deal with things separately. And, again, the reason I'm explaining that is if either of you do wish to offer a conduct agreement order, that offer is made on what's known as a without admissions basis. What it means is you agree to be bound by an order...

1. Having heard from both parties, the learned magistrate gave the appellant the opportunity to 'sum' up his case, explaining that:[55]

HER HONOUR: [BT], this is now your opportunity to sum up your case. It is not to give further evidence. So take a seat, [LG]. [BT], what do you wish to say, if you wish to say anything, to sum up your case as to why you say I should grant your application and I should dismiss [LG]'s application.

1. The learned magistrate, having heard the appellant restate his position, again gave the appellant the opportunity to sum his case:[56]

HER HONOUR: Because you managed to get her moved out of the house, and you had care of the child. [BT], you are not giving evidence. Is there anything further you wish to say in summing up your case?

In so doing, the learned magistrate, invited the appellant to put forward by way of closing submissions, any further matter for the court to consider:[57]

HER HONOUR: You've already said that, [BT]. You've said that many, many times. You've said that it was all designed to get you out of the house, to put her in a better position for the Family Court, so that she could live in the house, she could get her mum to move in, that she could pursue her relationship with her boyfriend. You've said all of that. Is there anything else, [BT]?

[BT]: Given the past time with my child, and she already actively seeking for rental property - she's nearly to getting a property with her income. I don't believe her income is that low. Her income is more than double - - -

HER HONOUR: [BT], you have said all of these things.

[BT]: If possible - I just feel like one-day trial is not enough.

HER HONOUR: All you've said, [BT], is that she's a liar.

[BT]: She is a liar.

HER HONOUR: No. Other than the false allegations - you say that she has made false allegations against you. I have asked you more than once during the hearing to tell me what it is that she's doing that you require protection from. False allegations, her threatening self-harm. Well, you're not together any more. It's not a suggestion that she has continued to threaten self-harm. And in fact, there's two occasions, one of which seems to be when you've confronted her about an alleged affair, but other than that, you've not pointed to things to say that she has engaged in family violence towards you, other than the big setup, the false allegations.

So what is the ongoing risk? I've been asking you about that, and you are still not telling me what that is. All you're saying is, she's a liar. So, [BT], what else is there?

[BT]: If I've been - so allegation regarding to sexual assault, I can be sentenced up to five years if be committed. She made the - - -

HER HONOUR: You're not being charged. There's no - there's no charge. There's no prosecution. Yes. You've said that she has made false allegations. Move on, [BT].

[BT]: There's no more questions.

HER HONOUR: Well, there are no questions. It is closing submissions. ...

1. The appellant, in my view, was given ample opportunity to produce to the court the evidence and materials he sought to rely on.
2. The fact that the appellant does not like the result following the hearing of the FVRO applications does not mean that he has been denied natural justice or procedural fairness. As noted in Ogbonna v CTI Logistics Ltd:[58]

[T]he question of whether there has been a failure to comply with the rules of natural justice is not answered by reference to the outcome of the exercise of the relevant power. The principles of natural justice are not concerned with the merits of a particular exercise of power, but with the procedure that must be observed in its exercise. The focus of attention must therefore be on the position as it stood before the impugned decision is taken.

1. Further, on my review of the transcript of the hearing, it is not evident to me that the learned magistrate rushed or prevented BT from saying everything he wanted to aside from matters determined by the learned magistrate to be irrelevant and therefore not admissible, or where the learned magistrate determined that the submission being put to the court could not be advanced any further.
2. Nor on a review of the transcript, is the appellant's assertion that the learned magistrate 'repeatedly yelled at him during the presentation of his evidence, without valid reason' in any way supported.
3. The appellant has not satisfied me that he was denied procedural fairness by the learned magistrate. In my view, the appellant had sufficient opportunity to present his case.
4. These grounds of appeal have not been established.

Was there a denial of procedural fairness because the learned magistrate did not give the appellant sufficient opportunity to adduce evidence? (Grounds 2 and 5)

1. The appellant submits that he was denied procedural fairness because he was not given sufficient opportunity to adduce evidence, including witness testimony, and that witness testimony was excluded. Further, that the learned magistrate disregarded the appellant's version of events and failed to take into account cultural differences in assessing the evidence that was before the lower court.
2. By way of summary, the appellant submits that the learned magistrate erred in fact and law for the following reasons:
   1. The evidence did not support the findings in respect of the final FVRO.
   2. Placed reliance on 'subjective impressions and demeanour'.
   3. Accepted the respondent's evidence-in-chief in making adverse findings against the appellant.
   4. Did not afford the appellant a fair opportunity to test the respondent's evidence-in-chief through cross-examination.
   5. Declined to admit evidence that was unfavourable to the respondent.
   6. Failed to consider material, probative and unchallenged evidence that supported the appellant's case (ie school and home incident of 4 and 5 February 2025).
   7. Failed to consider all relevant and admissible evidence before making findings including matters directly relevant to the appellant's allegations and defence.
   8. Failed to provide the appellant a fair opportunity to present and rely upon evidence.
   9. Erred in making adverse findings as to the appellant's credibility which were not supported by the objective evidence and were based on speculative reasoning.
   10. Erred in fact by placing undue weight on evidence (ie hiking group message incident).
   11. Erred in failing to properly consider the evidence (ie identity of the WeChat account).
3. The respondent submits that contrary to the appellant's submissions, a review of the transcript of the hearing shows that all evidence was considered, that the court's discretion was properly exercised and that the learned magistrate ultimately found that the appellant's evidence was inconsistent and unreliable. It is the respondent's submission that there is no error of law on the part of the learned magistrate.

1. For the purpose of an appeal by way of rehearing, it is necessary for the appellant to establish that there has been a legal, factual or discretionary error.
2. Grounds of appeal which assert errors arising out of findings on the basis of the assessment of the credibility of witnesses and the absence of supporting evidence are grounds which assert an error of fact.
3. The Court of Appeal in Wise v Keilo Jane Wise discussed the approach to be taken by appellate courts when there are allegations of errors of fact:[59]
   1. The remaining grounds of appeal allege errors of fact. The approach to be taken by an appellate court in respect of such allegations has been mentioned a number of times recently in this Court. The principles were summarised in Sampey v Doherty. The court said that the proper approach to be taken on appeal involving allegations of factual errors made by the trial judge was as follows:

(a) An appellant who challenges a primary judge's finding of fact must demonstrate that the finding was wrong, not merely that an alternative finding was open.

(b) The principles of appellate restraint do not apply only to credibility based findings. Appellate restraint in relation to interfering with a primary judge's findings applies when a finding is likely to have been affected by impressions the judge has formed about the credibility and reliability of a witness as a result of seeing and hearing the witness give evidence.

(c) Where an assessment of the reliability of a witness involves the kind of issues and the approach to fact finding that apply to the assessment of the credibility of a witness, an appellate court will not interfere with a primary judge's finding of fact, unless the finding is demonstrated to be wrong:

(i) by reference to incontrovertible facts or uncontested testimony;

(ii) because the finding is glaringly improbable or contrary to compelling inferences; or

(iii) because the primary judge failed to use, or has palpably misused, his or her advantage as the primary judge.

(d) The nature and extent of a primary judge's advantage over an appellate court informs both what must be demonstrated to establish error in the primary judge's findings and the extent of appellate restraint in relation to those findings. For example, there is a distinction between a finding based on the credibility of a witness and a finding based on inferences drawn from undisputed facts or facts as found. Accordingly, the nature of the challenged finding and the process of reasoning by which the finding was made affect what must be demonstrated in order to establish appellable error.

(e) The principle of appellate restraint is derived from the 'natural limitations' of the appellate process and the degree of 'comparative advantage' or 'relative advantage' possessed by a primary judge as a result of the primary judge having seen and heard the witnesses. Those advantages have been described as many and varied and may vary from case to case.

(f) Where a primary judge's finding concerns an issue involving impression or judgment, the primary judge's 'comparative advantage' or 'relative advantage' in making that finding should be given 'proper weight'.

1. The appellant's grounds of appeal and submissions in respect of this issue appear variously in the notice of appeal, the First BT Affidavit, and Second BT Affidavit and the appellant's submissions. They are voluminous, repetitive and at times difficult to follow. The theme that emerges from the grounds and assertions in respect of this issue can be characterised as follows:
   1. That the learned magistrate erred in fact in failing to consider the evidence; in placing undue weight on the evidence; and in making findings not supported by the evidence.
   2. That the learned magistrate erred in making adverse findings as to the appellant's credibility.
   3. That the learned magistrate erred in preferring the respondent's evidence.
   4. That the appellant was not given the opportunity to cross-examine the witness.
2. On my review of the transcript of the hearing on 18 March 2025, in reaching her determination, the learned magistrate heard from the two applicants and also received many exhibits, photographs, screenshots, videos, copies of email correspondence, and a screenshot of a bank account. Once the evidence had been adduced, the learned magistrate was entitled to use it in her determination. By way of example, the learned magistrate was not persuaded that the Western Australia Police reports the appellant sought to rely on do more than record what the appellant said to the Western Australia Police. Relevantly:[60]

[BT]: Yes. Your Honour, can I say something before proceed?

HER HONOUR: Yes?

[BT]: Yes, with great respect to the court, I don't think I gave enough evidence in the previous session. I've been asking for giving you the police report. I want the court to accept that for the evidence - as evidence.

HER HONOUR: [BT], the police report records what you have said to the police.

[BT]: But that could - - -

HER HONOUR: So the allegations that you have made. So it confirms that you've made those allegations. It confirms that you have told them that information. What else does the police report contain that you say is relevant to my determination of whether or not to grant your application or [LG]'s application?

[BT]: Yes, but there are clear contradictions and inconsistencies between her affidavits and police reports. So that's why it's - - -

HER HONOUR: Of what she says or of what you say?

[BT]: What she says.

HER HONOUR: Well, then you can put that to her in cross-examination.

1. Similarly, with respect to the appellant's reliance on the WeChat messages, for the reasons observed above, it was open to the learned magistrate to determine that this evidence was not to be admitted on the basis of relevance.[61]
2. There was no error in the learned magistrate's observations about these matters.
3. The appellant called his mother as a witness and sought to rely on a translated written statement given by the appellant's father who was not present at the hearing.
4. As to the appellant's other witness, the appellant's mother, having ascertained from asking the appellant what the intended evidence was this witness, the learned magistrate determined that the evidence was not relevant to the application:[62]

HER HONOUR: What is this witness going to give evidence about, [BT]?

[BT]: So regarding the behaviour of the respondent as a - - -

HER HONOUR: What behaviour?

[BT]: Disrespectful for parent and causing her to admit to hospital twice. Going - - -

HER HONOUR: You to go to hospital twice?

[BT]: My mum went to hospital twice because of her abusive behaviour from the - verbally abusive behaviour from - - -

...

HER HONOUR: Well, what relevance has that got to do with her behaviour towards you?

...

HER HONOUR: I'm just going to let you know right now, [BT], if this gets into irrelevant areas, I will not be hearing the evidence further. You can proceed to ask questions.

[BT]: The - it's happening during the time that - - -

HER HONOUR: It doesn't matter. [BT], this is about whether a restraining order should be granted for your protection. I accept that you might want to say that [LG] is such a terrible person, that she's awful to all sorts of people, but that's the most that really could be said from it, if you establish that. The fact that she may have been terrible to your mother has very little, if any, relevance to whether or not you need to be protected from [LG].

...

HER HONOUR: So because of an argument with your mother in front of you, you say you need to be protected from [LG]. Because you got so upset that your mum was upset. Is that what you're telling me?

[BT]: Yes. Her behaviour will be continuing because she has even disrespected my mum, who has been helping us for a long time. She's - - -

HER HONOUR: From when? When did this all occur?

...

HER HONOUR: So 2022?

[BT]: Yes.

HER HONOUR: So what relevance has that got to do with needing a restraining order now, when - is there any allegation that [LG] is pursuing your parents, is continuing to harass them to try to get to you?

...

HER HONOUR: When?

[BT]: Around 2023.

HER HONOUR: No, [BT]. I do not see how that is relevant to all of the things that you've been describing, really, since about October of last year.

1. As to the appellant's submission that there was a big cultural difference in China and Australia, the learned magistrate accepted this but said:[63]

HER HONOUR: Well, I've got to tell you, [BT] - and I will take into account cultural differences in assessing the evidence that is given by anyone who's from a culture outside of Australia in my assessment of these applications - but I can tell you right now, in Australia, with what you are saying, that is not going to be the case, that having an affair would justify some of the behaviours that you're talking about. So just to let you know that. And the understanding of family violence, and how it's considered by the courts, may be very different here than it is back in China, and so I've tried to explain that, in telling you what family violence can be. So you say you messaged her family members, and they're supportive of you. Move on

HER HONOUR: But I do accept that there could be misunderstandings as to language when English is not the first language of either of the applicants, that there may be matters, even as [BT] said at one point, that could be lost in translation, and that perhaps in giving their evidence both [BT] and [LG] may have at times used words that they would otherwise not have used or said things in a way that could be viewed to not quite accurately convey the meaning because of the difficulties with language.

I accept that. I also accept that there may be cultural differences at play and that that may impact upon the way upon which each of the parties has acted and also how they have given evidence about their conduct and the conduct of others involved in this matter, particularly the respective respondents; that is, the opposing party. So I accept that that is all relevant in terms of differences in language and culture.

But ultimately, in terms of the applications, I am to assess them by our legal and community standards. And so, on many occasions, [BT] referenced how things are done in China, how things may be viewed in terms of extramarital affairs, the involvement of other family members, and it may very well have been the case that in those instances [BT] believed he was not only acting appropriately, but that he was doing the best for the relationship.

1. In reaching her determination, the learned magistrate formed a view as to the nature and relevance of the evidence sought to be adduced by the appellant:[65]

HER HONOUR: After asking [BT] about what the evidence of - intended evidence was of those witnesses, I struggled to see that there was any relevance, and it really seemed to me to be broadening matters in circumstances where I repeatedly tried to remind [BT] as to what I needed to determine in this case and what he should focus his attention on in pursuing his application and defending the application from [LG].

1. As to the credibility of the appellant as a witness, the learned magistrate is entitled to determine what to make of a witnesses' evidence, including in respect of any inconsistencies in the evidence presented to the court. Relevantly:[66]

HER HONOUR: That is, I'm not to speculate about matters that are not in evidence. I'm to consider only the evidence that has been presented in the court. [BT] has placed a great deal of reliance on what he says are inconsistencies in [LG]'s evidence. Inconsistencies can be as between a witness's evidence and other evidence, including objective evidence. That is, a witness may be contradicted by evidence other than their own, perhaps the evidence of another witness or an exhibit, or there could be internal inconsistencies.

1. In finding the appellant to be lacking in credibility, the learned magistrate observed:[67]

HER HONOUR: I did not find [BT] to be an honest witness. Ifound that [BT] withheld information and at times gave misleading accounts until he was pressed. This included being asked questions such as who he sent various things to, whether they were photographs or videos. [BT] was very careful to limit his answers and then to suggest he thought he was really only being asked about a particular day or a particular time when it was clear that [BT] had engaged in conduct that was much broader than what he first admitted to.

So [BT] was, in my view, evasive in that respect. ...

1. The learned magistrate did not rely on every part of the evidence of the respondent in reaching her Decision. As was observed by Gillan DCJ in Hastings v Cassells:[68]

Any trier of fact is entitled to accept the whole of a witness' evidence, to reject the whole of a witness' evidence or to accept some of a witness' evidence. A great many things might impact on an assessment of a witness' credibility, for example, inconsistencies in a witness' evidence or prior inconsistent statements, inconsistencies between witnesses, embellishments of evidence but whether those inconsistencies in fact impact on the credit is a matter for the trier of fact. Further, even evidence which is accepted may be given little weight in the decision which is reached.

1. The learned magistrate was entitled to put aside some of the respondent's and the appellant's evidence.
2. As to the assertion that the learned magistrate did not afford the appellant a fair opportunity to test the respondent's evidence-in-chief through cross-examination, it is apparent from the transcript that the learned magistrate on several occasions explained to the appellant when he would be able to cross-examine the respondent and what this would entail:[69]

[BT]: Okay. I still got opportunity to cross-examine but - - -

HER HONOUR: She has not given evidence yet and so you will be able to cross-examine her and say, 'Did you tell police this? Well, that's not true, isn't it? You told police this, but you've also said this. It - one of them's a lie. You're lying'. Whatever it is, you can put that to her.

[BT]: I can still use the police report as evidence, even I was being cross-examined - actually, when I cross-examine her, I can use that?

HER HONOUR: But, if you're talking about something that she has said to police, you can't give evidence about that anyway. It's what she has said to police. So you can cross-examine her about that.

[BT]: Okay. And also I mentioned in the court hearing in the morning that she actually lied to the court in the first hearing. She's talking about regarding - I sent her a text message regarding her return to home. And also, I take [child of BT and LG] to her by myself. Both of them are false statements - misstatements in her court appearance. I have - - -

HER HONOUR: You can ask her about that - - -

1. As a general rule, a court should not place an arbitrary time limit on cross-examination. However, there may well be situations in which 'it might be reasonable and proper at some stage of a cross-examination to impose a time limit'.[70]
2. In the present case, it is apparent from a review of the transcript that the respondent was the subject of cross-examination by the appellant. There is nothing to suggest that the appellant did not have sufficient opportunity to cross-examine the respondent.
3. In disallowing the statement of the appellant's father, the learned magistrate observed that witnesses needed to be present at the hearing for the purposes of cross-examination.[71]
4. In accepting the respondent's evidence, the learned magistrate observed that the appellant was somewhat of a disadvantage as the respondent had not been cross-examined about this. However, the learned magistrate observed that:[72]

HER HONOUR: In respect of [LG]'s evidence about [BT]'s conduct, a great deal of it had already been by admitted by [BT], but further evidence came out in the course of the first part of [LG]'s evidence, the evidence-in-chief, and [BT] was at somewhat of a disadvantage because he hadn't been cross-examined about this. But he said - made statements to the court, where it was clear he wasn't disputing the evidence that was presented, and indeed provided an explanation for it.

1. Further, the learned magistrate observed that the respondent was cross-examined extensively on what was said to be inconsistencies in her account and said:[73]

HER HONOUR: Again, trying to make it clear to [BT] that he should consider the way in which he was running his case, the evidence that he was giving, and what he was choosing to focus on in respect of [LG], I consider that [BT]'s cross-examination of [LG] to be, to some extent, a perpetration of his family violence towards her.

1. These grounds of appeal, and the submissions contained in them, rely on a re-agitation of the issues before the learned magistrate. The question for the learned magistrate's consideration was then whether either the appellant or the respondent had, on the evidence the learned magistrate did accept, satisfy here that there had been an act of personal violence and that a FVRO should be made. In reaching her Decision, the learned magistrate found that there was a sufficient basis to grant the respondent a FVRO against the appellant in a situation where the respondent was experiencing family violence.[74]
2. I am of the view, and having had regard to the principles expressed by the Court of Appeal in Sampey v Doherty,[75] that they do not establish that the learned magistrate's findings of fact were wrong:

(a) by reference to incontrovertible facts or uncontested testimony;

(b) because the findings were glaringly improbable or contrary to compelling inferences; or

(c) because the primary judge failed to use, or has palpably misused, his advantage as the primary judge.

1. The appellant has not established any denial of procedural fairness in the manner in which the learned magistrate allowed him to adduce evidence.
2. These grounds of appeal have not been established.

Was the learned magistrate biased? (Grounds 1, 4, 6, 7, 8 and 9)

1. The appellant's contentions as to bias concern the perceived behaviour of the learned magistrate towards the appellant (ie raised voice, asking harsh questions, acting unfairly as if advocating for the respondent, formed conclusions before hearing all of the evidence, unfairly said the appellant's application had no real basis, 'wrongly' blamed the appellant for leaving the respondent without housing, the final FVRO was too harsh in its scope and duration, the final FVRO unfairly restricts the appellant's contact with his child, ignored the appellant's claims about false police reports, ignored the appellant's loses in work and business).

1. A 'central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed'.[76] 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.[77]
2. As was observed by Solomon J in Murray:[78]

Judicial intervention during the examination of a witness, or the conduct of a judicial officer during a trial generally, may ground a reasonable apprehension of bias or prejudgment. That is an issue that goes to the heart of the trial process. A judicial officer, or jury as the case may be, must be and must appear to be impartial. That requirement is fundamental to fairness, and can be summarised in the adage that justice must be done and must be seen to be done. It is necessary that every person, and especially an accused person, is treated without bias or prejudgment, actual or apprehended.

1. In the present appeal, the appellant has not specified whether what is alleged is actual or apprehended bias. Much of the submissions put by the appellant in respect of this ground centres on the perceived treatment of the appellant and the appellant's case by the learned magistrate which the appellant contends amounts to bias. I have considered both actual and apprehended bias against the appellant's submissions.
2. The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[79]

Where a party contends that actual bias exists, the applicant must show that the mind of the decision-maker is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration and Multi Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 532 [72]. Actual bias will exist where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: see Jia Legeng [36], [72]. Such an allegation must be 'distinctly made and clearly proved': Jia Legeng [69], [127].

1. As was observed by Quinlan CJ in Ogbonna v CTI Logistics Ltd:[80]

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.

1. I have reviewed the transcript of the hearing on 18 March 2025, as well as the appellant's submissions and observations on the transcript. From my review of the case as a whole, the appellant has not satisfied me that the learned magistrate was actually biased in the manner described in Chin. The learned magistrate, correctly, sought to confine the evidence to the issues in dispute.
2. To establish that there is a reasonable apprehension of bias, the appellant would need to point to what it was that led the magistrate to decide the case other than on its factual or legal merits. He would then need to identify the connection between the evidence of apprehended bias and how that caused the tribunal to deviate from deciding the case on the merits.[81]
3. The principles were recently summarised by the Court of Appeal in Wreford:[82]

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.

1. In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the trial as a whole.[83]
2. As McLure P observed in De Alwis [No 2], in the context of dealing with an assertion of bias, it 'will often be necessary with a self-represented litigant for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions'.[84] That is in part what occurred in the present hearing. The fact that the learned magistrate made rulings against the appellant does not provide a basis for a reasonable apprehension that the learned magistrate did not bring an impartial or unprejudiced mind to bear on those matters and other matters.[85]
3. From my review of the case as a whole, I do not consider that a 'fair-minded lay observer might reasonably apprehend' that the learned magistrate had not brought an impartial and unprejudiced mind to the resolution of the issues the magistrate had to decide. Rather, as I said in relation to actual bias, it would have been apparent to a fair-minded lay observer that the learned magistrate was trying to confine the evidence to the issues in dispute, and then to engage with the appellant to seek to understand the issues from his perspective. There is no arguable basis in the manner in which the learned magistrate conducted the trial for an allegation of actual or apprehended bias.
4. This ground of appeal has not been established.

1. It follows from what I have found above that I have considered each of the appellant's grounds of appeal and find none of them made out. For the reasons which I have set out above, leave to appeal is allowed, leave to adduce evidence is refused and the appeal should otherwise be dismissed.
2. The appropriate final orders are:
   1. Leave to appeal out of time is allowed.
   2. Leave to adduce evidence is refused.
   3. The appeal be dismissed.
3. I will hear from the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Magistrates Court lower court file MC/CIV/PER/RO/844/2025 (844/2025 MB), pages 1 - 2.

[5] Magistrates Court lower court file MC/CIV/PER/RO/870/2025 (870/2025 MB), pages 1 - 2.

[8] 18 March 2025 transcript of proceedings (18 March 2025 ts); 870/2025 MB, pages 138 - 300.

[12] MCCPA s 40(4)(a).

[13] MCCPA s 40(4)(b), s 40(5).

[14] District Court Rules 2005 (WA) (DCR) r 50(1).

[15] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).

[16] 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) (Saunders).

[18] 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).

[19] 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].

[20] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).

[22] Letters from the court dated 16 September 2025 and 2 October 2025.

[24] Exhibit 1, pages 130 - 150; Exhibit 2, pages 151 - 152; 844/2025 MB.

[25] 18 March 2025 ts 19 and ts 22; 870/2025 MB, pages 156 and 159.

[26] 18 March 2025 ts 17 - ts 19; 870/2025 MB, pages 156.

[27] 18 March 2025 ts 17; 870/2025 MB, page, 154.

[28] 18 March 2025 ts 18; 870/2025 MB, page 155.

[29] 18 March 2025 ts 19; 870/2025 MB, page 156.

[30] 18 March 2025 ts 21 - ts 22; 870/2025 MB, pages 158 - 159.

[31] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).

[32] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

[33] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).

[34] Nobarani v Mariconte [2018] HCA 36 [47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ) (Nobarani); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court) (Woodley); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court) (Moleirinho).

[36] First BT Affidavit, pars 4(a) - 4(e) inclusive.

[38] TAH v The Public Advocate [2024] WADC 71 [112] (Gething DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16], [20] (Bowden DCJ).

[39] Shilkin v Taylor [2011] WASCA 255 [66] - [70].

[40] 18 March 2025 ts 43; 870/2025 MB, page 180.

[41] 18 March 2025 ts 34 - ts 35; 870/2025 MB, pages 171 - 172.

[42] 18 March 2025 ts 39 - ts 40; 870/2025 MB, pages 176 - 177.

[43] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 - 585.

[44] See Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J); International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54] (French J); see also [88] (Gummow & Bell JJ), [141] - [146] (Heydon J). See also Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).

[45] Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [57].

[46] Defendi v Szigligeti [2019] WASCA 115 [45] - [48].

[48] WWW v DET [2024] WADC 84 [189]; see also s 72(1)(a) of the ROA.

[49] Frigger v Frigger [2023] WASCA 103 [42] (Frigger).

[50] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] (judgment of the court) (Zerjavic).

[51] Nobarani [47]; Woodley [76]; Moleirinho [51].

[54] 18 March 2025 ts 9 - ts 10; 870/2025 MB, pages 146 - 147.

[55] 18 March 2025 ts 141; 870/2025 MB, page 278.

[56] 18 March 2025 ts 143; 870/2025 MB, page 280.

[57] 18 March 2025 ts 144 - ts 145; 870/2025 MB, pages 281 - 282.

[58] Ogbonna v CTI Logistics Ltd [2021] WASCA 25 [26].

[59] Wise v Keilo Jane Wise as Executrix of the Estate of Audrey Vera Wise [2025] WASCA 98 [18].

[60] 18 March 2025 ts 62 - ts 63; 870/2025 MB, pages 199 - 200.

[61] 18 March 2025 ts 34 - ts 35; 870/2025 MB, pages 171 - 172.

[62] 18 March 2025 ts 78 - ts 79; 870/2025 MB, pages 216 - 217.

[63] 18 March 2025 ts 40; 870/2025 MB, pages 177.

[64] 18 March 2025 ts 149; 870/2025 MB, pages 286.

[65] 18 March 2025 ts 146; 870/2025 MB, page 283.

[66] 18 March 2025 ts 147 - ts 148; 870/2025 MB, pages 284 - 285.

[67] 18 March 2025 ts 148; 870/2025 MB, page 285.

[68] Hastings v Cassells [2025] WADC 49 [39].

[69] 18 March 2025 ts 63; 870/2025 MB, page 200.

[70] R v Kelly; Ex parte Hoang van Duong (1981) 28 SASR 271, 273, cited with approval in: Total Value Auto & Finance Pty Ltd v Small [2004] NSWSC 1040 [53] (Campbell AJ).

[71] 18 March 2025 ts 145 - ts 160; 870/2025 MB, pages 282 - 297.

[72] 18 March 2025 ts 155; 870/2025 MB, page 292.

[73] 18 March 2025 ts 156; 870/2025 MB, page 293.

[74] 18 March 2025 ts 151; 870/2025 MB, page 288.

[75] Sampey v Doherty [2024] WASCA 105 [210] (Sampey v Doherty).

[76] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 350 (Mason J).

[77] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10]; Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2 [38] (Wreford).

[78] Murray v Feast [2023] WASC 273 [176] (references omitted) (Murray).

[79] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA) (Chin). See also Smart v Albuquerque [2011] WASCA 231 [9] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court).

[80] Ogbonna (Quinlan CJ) (references omitted).

[81] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [8].

[82] Wreford [39] - [40], adopting the principles discussed in referring to Reynolds v Rayney [2023] WASCA 144 [28] - [36] (judgment of the court).

[83] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [70] (McLure P, with whom Buss & Mazza JJA agreed) (De Alwis [No 2]).