I am a whistleblower pursuant to section 9.4AAA of the Corporations Act. It is a criminal offence to persecute a whistleblower. I bought it to the attention of the directors that Scott blackmailed Chris and that Kim threatened me to coerce me to sign documents.

My actions satisfy the criteria of a whistleblowers as set out in section 9.4AAA of the Corporations Act.

Kim is using the VRO and Police charges as court sanction persecution of a whistleblower. The Stat should not be complicit in such behaviour.

1. I do not need to decide whether or not the appellant made a disclosure qualifying for protection pursuant to Corporations Act 2001 (Cth) (CA) s 1317AA. This is because, even if such a disclosure were made, there is nothing in CA Part 9.4AAA which would render illegal an application pursuant to the ROA in some way connected to the disclosure.
2. The appellant has not established ground of appeal 33.

1. The second group of grounds of appeal raise issues as to the proper interpretation of the ROA.

7.1 Was the court which granted the interim VRO properly constituted?

1. The appellant asserts that the court which granted the interim VRO, constituted of two Justices of the Peace, was not properly constituted. Specifically, ground 21a provides:

21a. Her honour made an error of fact or law in determining that the court that granted the IVRO (2 JPs) was properly constituted as the presumption that the court was properly constituted was rebutted. Not a single shred of evidence was admitted establishing that the court was constituted, after the rebuttal. It appears her honour has again made an error in favour of the Protected Persons case.

1. The Magistrate dealt with this issue in her reasons:[54]

Mr Blenkinsop asserted that this Court does not have jurisdiction to hear, determine and issue violence restraining orders, either generally or as constituted on the 12 September 2014. This Court has the jurisdiction conferred on it by the Magistrates Court Act 2004 and by any other written law [Magistrates Court Act 2004 s 9]. It is to be presumed in respect to any case dealt with by the Court, that the Court was constituted according to law and had jurisdiction to deal with the case [Magistrates Court Act 2004 s 34(1)]. These presumptions apply in the absence of proof to the contrary [Magistrates Court Act 2004 s 34(7)]. Jurisdiction in respect of restraining order applications made in person is conferred on this Court by a written law being s25 ROA. Two Justices of the Peace sitting together may deal with an application made under the ROA at a hearing in the absence of the respondent fixed under s 26(2) of that Act [Magistrates Court Act 2004 s 7; Magistrates Court Regulations 2005 r 5(1)]. The initial hearing of the application on the 12 September 2014 was such a hearing. I reject the respondent submission as to jurisdiction.

1. The Magistrate correctly identified the relevant legislative framework in the Magistrates Court Act 2004 (WA) (MCA).
2. It is apparent from the transcript of the hearing at which the Interim VRO was granted that the Magistrates Court was constituted by two justices of the peace.
3. The appellant did not direct my attention to the evidence which he asserted rebutted the presumption that the court granting the Interim VRO was not properly constituted. Nor was this evidence apparent to me on my review of the materials before the court.
4. In relation to this ground the appellant added the following at the hearing of the appeal:[55]

THE APPELLANT: Well, no. I'm saying that the court was not properly constituted because under the Magistrate's Court Act, two - for two JPs to hear a matter - the Magistrate's Court, the Chief Magistrate's Court has to issue letters each day empowering those two JPs to hear the particular matter. And I checked the court file and there were no letters on the court file.

So each day the chief magistrate, if JPs are hearing a matter, each day the chief magistrate, or you know, a specified person, has to issue these letters, authorising the two JPs to hear matters.

Now if those letters aren't issued then the court is not constituted.

GETHING DCJ: Okay. Understood.

THE APPELLANT: And I checked the court file and no letters on the court file. So I'm saying well the court that issued the initial VRO was not properly constituted.

1. This submission by the appellant appears to be a reference to the procedure in Magistrates Court Regulations 2005 (WA) (MCR) r 4:

(1) A JP must not constitute a metropolitan court, either alone or with another JP, unless he or she has been requested to do so by -

(b) a deputy registrar who has been directed by a magistrate or a registrar to make the request.

(2) A registrar must not request a JP to constitute a metropolitan court, and a registrar must not direct a deputy registrar to make such a request, unless -

(a) a magistrate has requested that the court be constituted by JPs; or

(b) it is not practicable for a magistrate to constitute the court at the time when and the place where the court has to sit.

1. However, there is no requirement that I am aware of that the request be placed on the court file of each and every matter which the justices of the peace deal with in the course of a list. In other words, even if I accept what the appellant says from the bar table (which is not evidence), the fact that there was no letter along the lines of the request in MCR r 4 on the Magistrate Court file for the current matter does not prove that no such request was made. On the evidence before me there is no proof that the court which granted the Interim VRO was not constituted according to law, so the presumption that it was continues to apply.[56]
2. The appellant has not established ground of appeal 21a.

7.2 What is the scope of the decision on a hearing to grant a Final VRO?

1. In ground 49 the appellant asserts that the question for the Magistrate on a hearing to determine whether the Final VRO should have been granted was limited to whether the Interim VRO should have been granted. The consequence is that the evidence is limited to the evidence before the court hearing the Interim VRO:
   1. Kim got an IVRO based on evidence put to 2 JPs in an exparte hearing. The question to be tried is should have those 2 JPs granted Kim an IVRO based on the evidence presented to them, that day, and only on that evidence. Her honour made an error thinking the question to be tried was some other question. Her honour also erred in thinking that evidence, other than the evidence before the 2 JPs that day, could be considered. I repeat all other grounds of appeal here mutatis mutandis. My rights and obligation were seriously altered that day including enlivening the police jurisdiction imprison me or fine me a maximum of $6000.00 or both.
2. The same issue is expressed in grounds of appeal 2, 34 and 57:
   1. The Magistrate allowed the Protected Person to admit inadmissible evidence. It appears the Magistrate allowed the Protected Person to admit inadmissible evidence. It appears her honour considered that inadmissible evidence and so has made an error of fact and law.

1. Her honour made a mistake of fact or law in admitting, and considering, evidentiary materials that Kim had not seen or considered prior to 12 September 2014.

1. I note her honour has made an error of fact or law as she has listed, and probably considered, an email sent after the date of the IVRO, which was not sent to Kim, and was sent with explicit instruction to not send to Kim, which was inadmissible as evidence. I repeat all other grounds of appeal here mutatis mutandis.
2. In relation to this issue, the Magistrate stated:[57]

When Mrs Holland appeared before the Court on the 12 September 2014 and obtained the interim order her evidence was self-evidently confined to events occurring up to that date. The transcript of her evidence at the ex parte interim order hearing was available to the Court and referred to in the course of the final order hearing. It appears as Annexure F to these reasons. There is nothing in the ROA to prevent the introduction of further competent evidence by any party at a final order hearing.

1. The power of the court to make a final order at a final order hearing is set out in ROA s 43. Subject to compliance with the procedural matters set out in ROA s 42, 'a court may make a final order of the type, and with the terms, the court considers appropriate'.[58] The question for the court at the final order hearing is thus whether or not a final order should be made and, if so, on what terms. The final order hearing is not in the form of an inquiry into whether the interim violence restraining order should have been made. It is not in the nature of an appeal or review of the decision to grant the interim violence restraining order.
2. Further, there is nothing in the ROA which expressly limits the evidence which the court hearing the final order hearing may consider to the evidence before the court hearing the interim violence restraining order. If there is an implied limitation, it must be ascertained by implication from the subject matter, scope and purpose of the ROA as a whole.[59] I am not able to discern an implied limitation along the lines asserted by the appellant from these sources.
3. The evidence from the interim order hearing may be admitted at the final order hearing.[60] But the evidence at the final order hearing is not limited to this evidence. It is open to an applicant to adduce further evidence as to the matters raised at the interim order hearing. For example in Baron v Walsh the evidence relied on for the purposes of the final violence restraining order included matters arising after the issue of the interim violence restraining order. [61] The Court of Appeal specifically referred to these matters as being matters that were relevant to the determination of whether acts of abuse had occurred.[62] Further, in that case, the magistrate did not rely on the affidavits filed for the purposes of the interim violence restraining order hearing. Rather, the magistrate required the parties to give evidence in chief by viva voce evidence.[63] Again, this was not the subject of criticism by the Court of Appeal.
4. Indeed, limiting the inquiry to the evidence before the court when the interim violence restraining order was granted without the respondent being present, would have the effect of denying the respondent the opportunity to place before the court evidence in opposition to the application. This is in the context of the requirement of the court to consider, among other factors, the 'hardship that may be caused to the respondent if the order is made'.[64]
5. The appellant has not established that the Magistrate erred as set out in grounds of appeal 2, 34, 49 and 57.

7.3 Is the Interim VRO an interim order or a final order?

1. Ground 3 asserts that:
   1. The Magistrate made an error of law in determining an IVRO was not a final hearing that substantially altered the rights/obligations of the parties, or a party.
2. The Magistrate addressed this issue in her reasons:[65]

The respondent further submitted that an interim hearing is in fact a final hearing as it substantially alters the rights and obligations of the respective parties. A final order hearing it is argued, is in the nature of an appeal or the setting aside of a judgment. The rights of appeal provided for under the ROA are those provided for by s64 of the Act which do not permit this Court to hear an appeal against a decision of this Court to make an interim order. Further to the extent that rights of appeal are granted, those appeals and are to be made to Courts other than this Court. The only power in the ROA to set aside a decision is in relation to a decision made in default of appearance [ROA s 43A] or in default of objection to the interim order becoming final [ROA s 32]. Neither of these powers are relevant to this matter. This submission has no merit.

1. The question of whether the making of an interim violence restraining order is or is not a final hearing is of no consequence. The ROA sets out a procedure. That procedure allows for the making of an interim violence restraining order in the absence of the VRO Respondent.[66] Once made, the interim violence restraining order imposes restraints on the VRO Respondent according to its terms.[67] It also exposes the VRO Respondent to criminal penalties if he or she breaches the interim violence restraining order.[68] This is subject to a defence.[69] In this way, the clear and intended effect of the ROA is to alter the rights and obligations as between the person protected by the interim VRO and the VRO Respondent. This alteration may well be able to be characterised as 'substantial' on the facts of a particular case.
2. The VRO Respondent then has the opportunity to object to the interim violence restraining order becoming final, including the right to be heard on that issue.[70]
3. In this case, the appellant has not satisfied me that the Magistrate failed to correctly apply the procedure set out in the ROA. Nor has the appellant satisfied me that the justices of the peace who made the Interim VRO failed to apply the correct procedure as set out in the ROA.
4. The appellant has not established ground of appeal 3.

1. The Magistrate stated that the respondent bore the onus of proof in the application and that the standard of proof is the balance of probabilities.[71]
2. Ground 21 asserts that the Magistrate erred in the onus of proof. However, in context, it is properly considered to be a reference to the standard of proof:
   1. Her honour made an error of fact or law in determining that the onus of proof was the balance of probabilities. When the Protected Person makes numerous, significant and frequent fabrications the onus should be higher than this standard. It appears her honour has again made an error of fact that favoured the Protected Persons case.
3. The ROA provides that a reference to the court being 'satisfied' in relation to a restraining order means 'satisfied on the balance of probabilities'.[72]
4. However, as EM Heenan J observed in Myles v Carroll, in applying this test, the court must have regard to the seriousness of the allegations made: [73]

For a court to be satisfied of the existence of one or more of the grounds for making a restraining order it must be satisfied of the existence of that ground or grounds on the balance of probabilities - s 3. This has long been accepted as constituting the civil standard of proof which, however, necessarily has regard to the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding in affecting the question of whether the allegation has been proved - Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362. This means that in civil litigation the standard of proof on the balance of probabilities remains even where the matter to be proved involves criminal conduct or fraud, but that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. This reflects the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding, on the balance of probabilities, that a party to civil litigation has been guilty of such conduct - Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170.

1. In the present case, the acts of abuse alleged by the respondent were not particularly serious having regard to the range of potential acts of abuse able to constitute an act of family and domestic violence.[74] As the Magistrate observed, the acts of family and domestic violence which the respondent established 'are towards the lower and less serious end of such conduct and do not involve any physical violence or threats of physical violence'.[75] In those circumstances, there was no justification to apply the principles set out in Briginshaw v Briginshaw.
2. The appellant has not established that the Magistrate made the error set out in ground of appeal 21.

1. Ground 6 of the appeal raises the issue of whether the test for the issue of a final violence restraining order is objective or subjective:
   1. The Magistrate made an error of fact and/or law in determining that the appropriate test was solely an objective test when the appropriate test was an objective test and if the circumstances permitted alternatively a subjective test. In this case that threshold was surpassed.
2. This is tied into ground 26 which challenges the Magistrates reliance on the decision in Baron v Walsh:[76]
   1. Her honour made an error of fact or law in concluding that the case of Baron v Walsh was applicable to this case. There was no ongoing behaviour. As outlined above the objective standard is not the proper standard in this case. Given the circumstance of this case 'intent' is an element of this matter, and of VRO generally. For instance if a Protected Person stepped off a bus and the accused, by pure coincidence happened to be right there and the IVRO stipulated a 10 meter boundary, if intent was not an element, the accused would have breached the VRO through an act of god. The behaviour of the Protected Person is also a relevant factor. It appears her honour has again made an error in favour of the Protected Persons case.
3. The passage from the decision in Baron v Walsh relied on by the Magistrate[77] is [20] which provides:

The statutory expression 'behaving in an ongoing manner that is intimidating ... towards the person' in s 6(1)(d) of the ROA focuses on the conduct of the s 11A respondent and is an objective standard; it requires conduct that is objectively capable of having one or more of the effects in par (a) - (d) of s 338D on an ordinary person in the position of the person seeking protection (the claimant). It does not require proof of an intent to intimidate or proof that the claimant has in fact been intimidated. However, the effect of the behaviour on the claimant is a relevant consideration in determining whether the making of a VRO is appropriate in the circumstances.

This passage is from the judgment of McLure P. Both Mazza JA and Chaney J agreed with the reasons of the President, though Mazza JA elaborated on other matters.

1. The appellant did not draw my attention to any High Court authority inconsistent with the principles set out in par [20] of Baron v Walsh. Nor have I been able to find any. Nor have I been able to find any inconsistent Court of Appeal decisions. The principles were thus binding on the Magistrate and are binding on me.
2. The appellant has not established that the Magistrate erred as set out in ground 26.
3. As the passage in Baron v Walsh makes clear, different aspects of the statutory regime require the court to consider both objective and subjective factors. Consistent with this decision, the Magistrate considered, as appropriate, both objective and subjective factors.[78]
4. The appellant has not established that the Magistrate erred in incorrectly applying the law as set out in Baron v Walsh. Ground of appeal 6 has not been made out.

7.6 What is the proper interpretation of the word abuse?

1. Ground 22 asserts that the Magistrate incorrectly interpreted the word 'abuse':
   1. Her honour made an error of fact or law in interpreting the term 'abuse' and consequently that an act of abuse had in fact been committed. From the case law abuse has to be more than just annoyance. As such this has impeded my ability to appeal her decision, which favours the Protected Person. It appears her honour may be based. Allegedly there was a single instance where I called the Protected Person (Kim) a scumbag. It appears her honour has made an error of fact or law as a single instance of calling someone a name is insufficient to grant a VRO. It appears her honour has again made an error in favour of the Protected Persons case.
2. As I have set out in pt 5, the term 'act of abuse' in ROA s 11A is relevantly defined to mean 'an act of family and domestic violence', which is in turn defined in expansive terms in ROA s 6 (quoted above [26]). The Magistrate quoted these definitions.[79] Her Honour also quoted the definition of 'intimidate'.[80]
3. The appellant has not established that the Magistrate erred in interpreting the term 'abuse' as set out in ground 22. I will return to the issue of whether the definition was correctly applied later in these reasons (see [273] below).

7.7 What is the proper interpretation of the term 'emotional abuse'?

1. Ground 27 challenges the Magistrate's reliance on the decision in Lydon v Lydon:[81]
   1. Her honour made a mistake of fact or law in concluding that the case of Lyndon v Lyndon was applicable to this case. Lyndon v Lyndon, should it be applicable, was displaced by Baron v Walsh. And in any case the behaviour complained of did not meet the standard as set out in any of the cases. It appears her honour has again made an error in favour of the Protected Persons case.
2. The passage from the decision in Lydon v Lydon relied on by the Magistrate[82] is pars [49] and [50] which provide:

Emotional abuse is not defined in the Act. Emotional abuse involves improper or inappropriate behaviour, verbal or non-verbal, that adversely impacts upon another person's emotional wellbeing. Emotional abuse improperly excites strong unwelcome feelings in another. Emotional abuse may involve coercion by intimidation, inducing fear, stalking, or harassment, that is words, conduct or action, usually repeated or persistent that, being directed at a specific person, annoys, alarms or causes substantial emotional distress to that person.

There are two aspects to emotional abuse. The first is the adverse impact upon another person's emotional wellbeing. The second is the behaviour that causes the negative impact upon the emotional wellbeing of another.

This passage is from the judgment of Le Miere AJA. The other member of the court, Pullin JA, agreed with Le Miere AJA.

1. The appellant did not draw my attention to any High Court authority inconsistent with the principles set out in pars [49] and [50] of Lydon v Lydon. Nor have I been able to find any. I do not consider that the decision in Lydon v Lydon was displaced by the decision in Baron v Walsh. The two address different issues, but are entirely consistent. I have not been able to find any inconsistent Court of Appeal decisions. The principles set out in pars [49] and [50] of Lydon v Lydon were thus binding on the Magistrate and are binding on me.
2. The appellant has not established that the Magistrate erred as set out in ground 27 on the basis of the binding nature of the authority. Rather, the Magistrate defined the term 'emotional abuse' in accordance with binding precent. I will return to the issue of whether the Magistrate correctly applied that definition later in these reasons (see [273] below).

8.1 Was the appellant given adequate notice of the case he had to meet?

1. The appellant asserts that he did not know the case he had to meet either before the trial or during the trial:
   1. I did not know the case I was to required answer prior to the trial. The Magistrate was asked to clarify the case I was required to answer during the course of the trial. The Magistrate did not, or alternatively refused to, clarify the case I was to answer. It appears the Magistrate did not know the case I was to answer. The Protected Person change her case multiple times through the course of the trial. Her honour allowed the Protected Person to change her case multiple times through the course of the trial. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.
   2. The Protected Person was permitted to change her case several times throughout the course of the trial. I should know the case I am to answer prior to the trial. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.
2. The appellant elaborates on ground 9 in the Appellant's Submissions:[83]

Originally Kims case was I abused Scott and she suffered emotional abuse as a result of my abuse of Scott. Then Kim changed her case to I abused Scott and Kim and she suffered emotional abuse. Then Kim changed her case to I abused only Kim and she suffered emotional abuse.

1. As Rich J observed in Cameron v Cole, it 'is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case'.[84]
2. The following observations by the Court of Appeal in Rowe v Stoltze summarise the law:[85]

... It is trite law that the rules 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 particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].

1. It is instructive to quote in more detail the passage from the decision of French CJ International Finance Trust Co Ltd v New South Wales Crime Commission referred to in the passage in the preceding paragraph:[86]

Procedural fairness or natural justice lies at the heart of the judicial function.... It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it. According to the circumstances, the content of the requirements of procedural fairness may vary.

1. The issue in relation to grounds of appeal 9 and 10 is whether the appellant was given a reasonable or sufficient[87] opportunity, one on proper notice, to know the case he had to meet in order to be given a fair opportunity to prepare his case.[88]
2. The first place in which the respondent sets out her concerns is in her application for the Interim VRO, which I have already quoted (above [4]).
3. The respondent filed detailed particulars of claim on 20 March 2015 (Respondent's Particulars).
4. The issue of the case which the appellant had to meet was addressed by the Magistrate:[89]

Particulars of the acts of family and domestic violence alleged by Mrs Holland

The acts of family and domestic violence which Mrs Holland alleges Mr Blenkinsop has committed against her were particularized by her in her amended particulars of claim filed 20 March 2015. These particulars are somewhat prolix and contain evidentiary style statements. They may be summarised as follows:

1. In 2008 Mr Blenkinsop went to her home and argued with her and used offensive language. This caused her anxiety.
2. On another occasion in 2008 he went to her house uninvited causing her to leave her house.

1. In November 2008 after a meeting with solicitors Mr Blenkinsop sent her an e-mail which included swearing. Ms Holland requested that he not email her using foul language.

1. In Nov 2009 Mr Blenkinsop shouted and screamed at a shared holder meeting at which Ms Holland was present and has sent her repetitive e-mails containing requests for a copy of minutes of which she had already provided numerous copies to him. This continued until 2012.
2. In June 2012 Mr Blenkinsop joined a facebook conversation to which Ms Holland was a party and made comments which upset her.
3. In late 2012 Mr Blenkinsop called her offensive names in e-mails.
4. On 10 October 2012 Mr Blenkinsop left a message on Ms Holland's answering machine which made her scared and terrified and caused her to lock all windows and doors.
5. In late September 2013 Ms Holland received a call from Mr Blenkinsop which made her feel afraid and upset during in which she shouted at Mr Blenkinsop.
6. Ms Holland has received many e-mails from Mr Blenkinsop including foul language and attacks on her.
7. Mr Blenkinsop has continued to forward e-mails to her despite requests for him to stop and these e-mail included abusive language and objectionable words and make abusive comments about Mrs Holland in her role as director of the family trust.

1. The Magistrate's summary is, in my view, a fair summary of the Respondent's Particulars.
2. It is also instructive to quote the Magistrate's summation of the appellant's case:[90]

Mr Blenkinsop's Response

Mr Blenkinsop did not file any formal responsive document to the application and was never required by the Court to do so. He did make oral statements to the Court in the course of the proceedings as to his reasons for opposing the application. On the 29 September 2017, having been granted additional time by the Court, the respondent filed 290 pages of closing submissions which were prolix and in parts, repetitive. Further grounds of response were put forward in those submissions. These matters included:

1. Mrs Holland's application is vexatious, frivolous and an abuse of process.
2. Mrs Holland and his brother Mr Scott Blenkinsop acted in concert to provoke him. They provoked him directly and indirectly by being abusive and making various threats to him and his family members and his mother. Mrs Holland and his brother used his reactions to obtain a restraining order against him.

1. Calling Mrs Holland a rubber stamp is not an offensive term. She has over a very long period of time from 2008 to the end of 2015 always sided with his brother Scott Blenkinsop, voted with him and generally adopted his opinions. Ms Holland had not disagreed with or criticised his brother Scott and she disagreed with him only twice in that period of time out of thousands of resolutions and statements. This was the basis for him making the rubber stamp statements and calling her a rogue director and a scumbag on one occasion.

1. He is a whistle blower under the Corporations Act and Ms Holland and his brother were victimising him as he blew the whistle on them. The VRO is a furtherance of that victimisation.
2. Mrs Holland had failed to establish that the e-mails of which she complained were from Mr Blenkinsop.
3. Mr Blenkinsop did not concede any abuse, but in any event he submitted that -
   1. Mrs Holland volunteered to be abused;
   2. Mrs Holland brought the abuse upon herself;
   3. Mrs Holland could have stopped the abuse by blocking Mr Blenkinsop's e-mails, changing her e-mail address, resigning her position as a director or appointing an alternative director;
   4. Mrs Holland encouraged the abuse;
   5. Mrs Holland cannot deliberately and of her own free will expose herself to emotional abuse and then complain that she has been abused;
4. The ROA discriminates on the basis of gender and thus is in breach of the 'relevant Discrimination Act' and is unconstitutional rendering the VRO granted in this matter invalid.

1. Immediately after the luncheon adjournment on trial day 2, part way through his cross-examination of the respondent, the appellant spelt out his case for the Magistrate in the following terms:[91]

R. BLENKINSOP, MR: My case is Kim says that, you know, I've said the term rubber stamp to her, I don't know, half a dozen times. And basically my case will be that that's not an offensive term, that Kim has over a very long period of time - I think from - I think from 2008 to the end of 2015 I don't think Kim disagreed or criticised Scott. know, probably thousands of resolutions and statements and everything. Well, certainly resolutions.

I think she only disagreed with him twice. So, you know, on the basis that she would just always side with Scott, vote with Scott, you know, just generally and adopt his opinion, that was the basis for me making the rubber stamp statement. The rogue director; in relation to her, I understand her case is also that I called her a rogue director on one occasion. I understand that her case is that: I called her a scumbag on one occasion and all the rest is basically verbal - it's verbal evidence.

HER HONOUR: Yes, she's also complaining that

R. BLENKINSOP, MR: That's right.

HER HONOUR: That emails contained profanities, to which

R. BLENKINSOP, MR: Yes, that's right, swearing.

HER HONOUR: Which she had asked you to desist from.

R. BLENKINSOP, MR: Yes, the swearing and also that I abused my brother, or were offensive towards my brother and as a result of that she got a VRO against me. So that's her - that's her case and basically my case. And also my case is that her claim is vexatious and frivolous, an abuse of process and that basically her and Scott have conspired to provoke me and - to provoke me and my family and then on the basis of that

HER HONOUR: I just want to make a note. Vexatious and frivolous, abuse of process, that she and Scott conspired

R. BLENKINSOP, MR: To provoke me.

HER HONOUR: To provoke you.

R. BLENKINSOP, MR: And my general family, my mother, my sisters, their - their - my in laws and then I've reacted to that provocation and then they have used my reaction, or Kim has used my reaction - possibly both of them, because it's unclear if it's actually a joint application by Scott and Kim.

HER HONOUR: But I'm not dealing with the joint application. I'm dealing with hers against you.

R. BLENKINSOP, MR: Yes, I know, but the thing is that the very first document that was filed was - like, at court , was filed by Kim and Scott Blenkinsop and actually on the headings of the documents and on the actual document for this case it has got Kim and Scott Blenkinsop, so it's actually unclear if it is a joint application or was initially a joint application.

HER HONOUR: This application the applicant is - bear with me - the applicant and the person seeking to be protected is Ms Holland, the respondent is yourself. It's not a joint application. It always has been just her.

R. BLENKINSOP, MR: Yes, I was just confused because on the actual court documents it said Kim and Scott Blenkinsop and Ross Blenkinsop. So that's where the confusion came from there.

HER HONOUR: All right. So - and you reacted to it and she used that to

R. BLENKINSOP, MR: And she has used my reaction, which is basically the scumbag comment, as the basis for her VRO. And the other thing I've argued with Kim is the fact that I'm a whistleblower under the Corporations Act and basically this - and they were victimising me as it was because I blew the whistle on them. They through - before this action actually started they were victimising me as a whistleblower and this VRO is really just a furtherance of that victimisation. So that's basically my case.

1. The Magistrate thus made it clear that the respondent was only seeking to protect herself in the application. So to the extent that the appellant may have been confused up to that point about whether the application also concerned Scott Blenkinsop (a brother of both the appellant and respondent), the Magistrate dispelled that confusion. The particulars make it clear that the order was only being sought on behalf of the respondent. Otherwise, the appellant's understanding of the scope of the respondent's case reflected what was in the Respondent's Particulars. It is clear that by trial day 2 any uncertainty that the appellant had as to the case he had to meet should have been dissipated.
2. At the commencement of trial day 3, the appellant again addressed the Magistrate on this issue, making it clear that he knew that the respondent was only claiming emotional abuse against her, and not Scott.[92]
3. In between trial day 2 and trial day 3 there was an interval of some four months. To the extent that the appellant may have felt that he was taken by surprise by the fact that the case was limited to abuse against the respondent (the basis for which surprise is not apparent to me), he had ample time to prepare for the continuation of the trial.
4. At the commencement of trial day 5 (4 November 2016), the respondent again raised the issue of the case he had to meet. The Magistrate told the appellant that the case he had to meet was that set out in the particulars of claim as developed in the evidence.[93] Later that morning the Magistrate made the point to the appellant that the particulars are allegations and not evidence; whether they are supported by evidence at the trial is a different matter.[94]
5. The point came up again on trial day 6 (8 February 2017). The appellant said that he understood that the case he had to meet was that the respondent had suffered emotional abuse as a result of his actions directly against her. The Magistrate reiterated that particulars are not evidence and that the appellant could address the issue of whether the particulars were supported by evidence in his submissions.
6. In the Appellant's MC Submissions the appellant addressed in some detail the conduct identified by the respondent in the Respondent's Particulars.[95] He also addressed many other issues. The fact that the appellant was able to file very detailed submissions addressing the conduct identified by the respondent indicates that he had both a clear understanding of the case he had to meet and ample opportunity to do so.
7. It is then evident that from the Magistrate's Reasons that the decision made was based on the summary of the respondent's claim, specifically the allegations set out in paragraphs (f) to (j). The Magistrate's Reasons also addressed the Appellant's MC Submissions in so far as they either directly addressed the conduct identified by the respondent or raised issues going to the legal framework within which the decision was to be made (for example, the constitutional issues).
8. On my review of the case, I am satisfied that the appellant was given ample opportunity, on proper notice, to know the case he had to meet in order to be given a fair opportunity to prepare his case. He has not satisfied me that grounds of appeal 9 and 10 have been established.

8.2 Was the appellant denied procedural fairness by the respondent being permitted to tender emails not disclosed prior to trial?

1. The appellant says he was denied access to the respondent's emails:
   1. It appears the Magistrate without proper cause considered evidence presented by the Protected Person, that was inadmissible. Evidence of mine that was inadmissible was not permitted by her honour to be admitted into evidence. It appears I was not afforded Procedural Fairness and as a result was not heard. It appears I was not afforded Natural Justice. Further this favoured the Protected Persons case and not mine. It appears her honour may be based. This aground for appeal applies to all these grounds of appeal, mutatis mutandis.

1. He honour refers to an email at 8:44 pm. It was typical for all family members to send emails later in the day. Kim would have received emails from many other family members at this time, not just me. As the Court refused my orders for discovery I was unable to establish this fact. As the Court has substantially impacted on my ability to defend myself the Court cannot take these matters into consideration.

1. Her honour made an error of fact or law by allowing inadmissible evidence. Kims bundle of document was by Kims own admission, not the same as the Court bundle. This was brought to her honour attention at the time and in my submissions. It appears her honour has referred to and considered this inadmissible evidence in her reasons. The court prevented me from proving this point by not allowing me access to Kims emails. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.

1. Paragraph 24 was substantiated by my evidence. Basically a shopping list of Scott and Kims behaviour which I established in my documentary evidence.

As mentioned 99% of Kims claims were refuted by me, Kims sister Tracey and Kims mother so all of Kims evidence was refuted one way or another. Kim said she only provided a snap shot of the emails, thats because she omitted anything damaging to her case. The court prevented me from proving this point by not allowing me access to the material I require t prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.

1. The reference to paragraph 24 in ground of appeal 77 is to par 24 of the summary of the respondent's evidence in Appendix A to the Magistrate's reasons, which is in the following terms:

Exhibit 25 an e-mail dated 9 August 2014 which went directly to Mrs Holland's states:

Scott, and his trusty offsider Kim, have threatened Mum, and by proxy the rest of us, by threatening to dob mum in to the ATO for fraud (indirect bullying).

Scott, and his trusty offsider Kim, have threatened mum, and by proxy the rest of us, by threatening to dob mum in to Centrelink for fraud (indirect bullying).

Scott, or one of his minions, has threatened my partner Sue that we may lose our house as it is 'trust property' if I do not comply with his demands.

Scott and Kim have encouraged, possibly bullied, their children, our nephews and nieces to 'take sides'. I note several of the nieces and nephews have decided to take sides.

I tried to talk to Kim's kids regarding what was going on, warning them that Scott is widely considered a psychopath amongt [sic] the family members. Scott quickly asked them if they kept screenshots, that he may sue me for defamation.

1. The appellant elaborates on these grounds in the Appellant's Submissions:[96]

The bundle of documents used by the Protected Person (PP) was not the disclosed bundle. I refer to the PP evidence in chief and my submissions in the lower court.

...

Ground - 4B Her honour erroneously interpreted the affidavit of disclosure. The affidavit said Kim had disclosed all documents relevant to the case. Kim did not disclose the John Hall emails, the Centrelink reporting, the SAT emails or claim, the minutes where Kim proposed a resolution to evict Mum. It appears Kim lied in her disclosure affidavit as she did not disclose all documents relevant to the case. Of course Kim is contacting me for a one on one meeting just week prior to the VRO, that is relevant, even to Kims case that is relevant as it is prejudicial to her case. -

...

80% of Kim bundle was not admissible as it was not disclosed, her honour allowed it to be admitted.

...

Page 50 - 52 the bundle we were using was not the disclosed bundle. Her honour admitted that evidence, when it had not been disclosed and was therefore inadmissible. An order was made for Kim to disclose the documents she was to use at trial. The rule of court do not permit the admission into evidence of material that has not been disclosed, when an order for disclosure is made.

1. The appellant raised the concerns set out in the grounds of appeal at [122] during the trial.[97]
2. The relevant history is that the respondent filed a disclosure affidavit dated 10 March 2015. In it the respondent deposed, as she was required to[98], that the list of documents comprised all documents relating to matters in question in the case which are or have been in her possession, custody or power.[99]
3. At a directions hearing on 11 May 2015, Magistrate Hall made an order requiring the respondent to file and serve a copy of any documents she intended to adduce at trial by 19 May 2015. Magistrate Hall told the respondent to narrow down the documents she was to rely on to a snapshot of the attacks said to have been made on her by the appellant. At the same hearing, Magistrate Hall made an order for the respondent to file and serve a copy of any documents he intended to adduce at the trial of the action by 26 May 2015.[100]
4. The appellant then commenced an appeal from the decision of Magistrate Hall.[101] That appeal was dismissed by Stewart DCJ on 7 October 2015. The appellant then sought an order that the respondent provide discovery. This application was dismissed by the Chief Magistrate on 17 November 2015. The appellant appealed that decision to the District Court.[102] On 27 April 2016 Staude DCJ dismissed this appeal on the ground that there was no right of appeal to the District Court under the ROA from an interlocutory decision of that kind.
5. The net result was that the matter proceeded to a final order hearing on the basis of the orders made by Magistrate Hall on 11 May 2015.
6. There are six reasons why the appellant has not established grounds of appeal 12, 77, 84 and 87. The first is because there was no court order requiring the respondent to provide discovery in addition to that set out in her disclosure affidavit of 10 March 2015. Rather, the operative order for trial purposes was for her to file and serve copies of any documents she intended to adduce at trial.
7. The second is that there was no requirement on the appellant to limit the documents she was to rely on at trial to those disclosed in the 10 March affidavit. As I said, the operative order for trial was that made on 11 May 2015. In any event, there is no rule of law which renders inadmissible a document which was not included in a disclosure affidavit filed in Magistrates Court. Neither the MCCPA nor the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR)[103] prohibit the admission into evidence of a document that was not included in the affidavit of discovery filed by a party. The only provision impacting on trial is a requirement that, if a party discloses a document, the party must have the document available at trial.[104]
8. The third is that it was open to the appellant to include any documents he thought relevant in the bundle of documents he was required to file in accordance with the orders made on 11 May 2015. Specifically, it was open to him to adduce emails of the type described in the passage I have quoted above ([124]) in the Appellant's Submissions.
9. The fourth is that nothing in the grounds of appeal quoted above ([122]), the relevant parts of the Appellant's Submissions which I have quoted or discussion of this issue during the trial which leads me to conclude that the appellant was denied procedural fairness as a result of the manner in which the disclosure issues were dealt with prior to and at the trial.[105] He had ample opportunity to place before the court all the documents he considered relevant. There was no obligation on the respondent to place before the court all documents in her possession that may be relevant to the potential defences being raised by the appellant.
10. The fifth is that, in any event, documents which the appellant says he was not able to obtain from the respondent were not relevant. In my review of the materials, the documents centred on the appellant's case is that the respondent and Scott had provoked him to respond in the manner which he did.[106] As set out above ([42]), on the particular facts of the present application the issue of provocation did not arise.
11. The sixth is that the appellant had a reasonable and sufficient opportunity to review the documents tendered by the respondent. All the documents tendered by the respondent were done so by the end of trial day 1. As I have already indicated, there was a delay of over four months between trial day 2 and trial day 3. The appellant did not give his evidence, and tender documents, until trial day 4 (3 November 2016). Accordingly, he had ample opportunity to both consider the documents tendered by the respondent and to collate the documents he wanted to tender in response. Moreover, given the detail of the Appellant's MC Submissions, in particular the 120 pages addressing the respondent's exhibits,[107] in my view, it is readily apparent that by the conclusion of the respondent's case, the appellant had an accurate understanding of the documents which the respondent was relying on and ample opportunity to address the issues raised by these documents.
12. For these reasons, the appellant has not satisfied me that he was denied procedural fairness as a result of the manner in which the documents were disclosed and tendered in this case. Grounds of appeal 12, 77, 84 and 87 have not been made out.

8.3 Was the appellant denied procedural fairness in relation to evidence about the SAT application?

1. The respondent gave evidence about an application which she has made to the State Administrative Tribunal. The Magistrate summarised this evidence as follows:[108]

In 2013 her mother had access to money. She and her brother Scott made the sum of $50,000 available to her mother. In 2013 people were not concerned that her mother did not have enough money. She made an application to SAT seeking an assessment of her mother to find out whether she had full capacity. It was found that her mother was fine in every way. That application to SAT was not found to be vexatious or frivolous.

1. In the appeal, the appellant asserts that the was denied procedural fairness in that he was denied the opportunity to obtain information from SAT about this matter:
   1. I refer to page 43 of her honours decision. As a result of the SAT application which was contested by my mother lawyer Kim was ordered to pay my mother and my sister $6000.00 in costs, as it was found to be baseless. During discovery Kim refused to provide the SAT documentation, one would assume as it was damaging to her case. I made an application to obtain the SAT documentation by way of discovery the Court refused to make orders for its production. As such the Court has denied me the right to have my matter heard and I have been denied Natural Justice by the Court.

Any matter where the Court has denied me the right to obtain evidence to support my defence and counter claims, those matters should not be taken into consideration by the Court. How can the Court deny me the right to obtain information relevant to my claim and then consider those matters where I have been denied the right to respond fully, its not procedurally fair, its not fair full stop, it is not ethical, it is not moral, its denies me the right to be heard, I have not been afforded Natural Justice and its unconscionable.

1. There is a further reference to the SAT hearing in ground 89. This is in response to Magistrate's Reasons:[109]

As one enquiry the Court is required to make is whether Mr Blenkinsop is likely to commit such an act again I set out that at one point during his cross examination of Mrs Holland on 7 November 2016 Mr Blenkinsop made a statement which I consider was offensive in the Court stating:

'I just want to establish that she is a woman of considerable intelligence, considerable life experience, just in case, you know, she tried to pull the same stunt and pretend that she's ignorant.'

1. In ground 89 the appellant reiterates that he was denied procedural fairness by not having access to records from SAT:
   1. Paragraph 66 this is not the full explanation of this matter. In the SAT Kim feigned ignorance and stated that she could not understand the SAT form. Kim was assisted by a lawyer in the SAT matter. Kim is a 60 year old woman who won a scholarship to university and blitzed her degree. Her excuse that she could not understand the form in SAT was frankly implausible. The SAT presiding officer did not believe her and she was handed a $6000.00 costs order. From memory, I pointed Kims playing dumb act out to her honour in the magistrates Court. The court prevented me from proving this point by not allowing me access to the material I required t prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. So the ground of appeal is that because the Magistrates Court refused to make an order for SAT to produce documentation relating to the SAT application commenced by the respondent, he says he was denied procedural fairness.
3. However, the documents the appellant sought to obtain from SAT appear to only go to the issue of provocation which I have found not to be relevant (above [42]). It is not apparent to me that they go to any other relevant issue. The appellant has not satisfied me that he was denied procedural fairness by not having access to documents about the SAT application. He has not established grounds of appeal 74 and 89.

8.4 Was the appellant denied procedural fairness by not being permitted to adduce evidence of the reason for the appointment of an independent chairman?

1. This is raised in ground of appeal 86:
   1. Paragraph 22 Kim said under oath the independent chairman was appointed as I was so feral. Refuted by me, Kim sibling Tracey and Kims mother. No evidence produced by Kim to support her claim other than a bare assertion. It appears her honour has made yet another error in favour of Kim. The court prevented me from proving this point by not allowing me access to the material I required t prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. However, the paragraph 22 to which the appellant refers is to the summary of the respondent's evidence in Annexure A to the Magistrate's Reasons. The Magistrate does not make a finding as to the reason for the appointment of an independent chairman in the Magistrate's Reasons. So there is no need for me to make a finding in relation to ground of appeal 86.

8.5 Was the appellant given an adequate opportunity to cross examine?

1. In a number of grounds of appeal the appellant asserts that he was not given an adequate opportunity to cross-examine the respondent and witnesses called by her:
   1. The Magistrate did not allow me to complete cross examination. The Claimant was permitted to complete her cross examination. It appears I was not given an opportunity to be heard. It appears I was denied procedural fairness and Natural Justice. The trial finished early and the final day was not used.

1. The Magistrate without proper cause did not allow me to put questions in cross examination. For instance I asked a question. The Protected Person objected on the basis that the question had already been asked. The Magistrate allowed the objection despite the fact the question had not already been asked. This happened on multiple occasions. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.

1. The Magistrate without proper cause permitted the Protected Person to constantly interrupt my cross examination and evidence in chief. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.

1. Her honour made a mistake of fact or law in allowing Kim to ramble under cross examination. This meant I had less time to cross examine Kim. Her honour stated that she forced me to answer question but she never, to my knowledge, forced Kim to answer any question. It appears her honour had one standard for Kim and a much more stringent standard for me.
2. In his submissions, the appellant elaborates on these issues:[110]

Ground - 4a Page 161 Her Honour is instructing me on how to conduct my case. It is my case I should be able to conduct it however I want. Ill be paying the costs if I lose, not her honour. Page 196-197 Her honour continues to interfere in the conduct of my case. I pay the costs I run the case. Page 237 her honour continues to interfere in my cross-examination, sabotaging my cross examination.

...

Ground - 4d page 226 Her honour kept answering Kims question for her under cross examination. The witness should be answering the questions. It appears her honour has descended into the arena when she has not right to, no power to and a duty not to.

Ground - 4e page 39 of Nov 2 Because her honour sprung it on me that my cross examination would be limited I had to rush it and did not do a good job as I had to rejig my entire strategy on the fly. I note the trial did not run for all the days allocated. I further note Kim allegedly spent $17k and I spent even more getting the matter to trial and it took 3 years. A day of court time costs what $1000? The cost benefit analysis does not favour truncating the trial to save 1 day.

...

Kim constantly interjected in my cross examination of her and the evidence in chief of my own witnesses. The Magistrate allowed her to interject...

Ground 11a - Her honour constantly interrupted my cross examination...

...

In relation to all these submissions my cross examination was cut short by her honour and as her honour continually interrupted my cross examination and as her honour did not curtail Kims rambling during cross examination, wasting heaps of time, I was unable to fully establish my case, was not heard, was not afforded Natural Justice and procedurally it was unfair.

1. There are two interrelated issues. The first is whether the interventions made by the Magistrate during the course of his cross examination of the respondent had the effect of denying the appellant procedural fairness. The second is whether the appellant was denied procedural fairness by the Magistrate deciding at the beginning of day 3 of the trial to allow the appellant only that morning to complete his cross-examination.
2. Turning to the first issue, the right to challenge by cross-examination a witness whose evidence is adverse, in important respects, to the case a party wishes to present is an aspect of the obligation to accord procedural fairness.[111]
3. A 'judge or magistrate has a wide discretionary power in any proceedings to contain cross-examination within proper limits and to disallow repetitious prolix or unnecessary questions'.[112] For example, in Fried v National Australia Bank Limited Weinberg J observed:[113]

Lengthy cross-examination, particularly cross-examination going only to credit, is responsible for much of the delay and unwarranted cost typically associated with modern litigation. Cross-examination as to credit should be kept, so far as possible, within proper bounds.

1. There are also statutory limits on the right to cross-examine, including where the question is 'misleading' or 'unduly annoying harassing, intimidating, offensive or repetitive'.[114]
2. The central question in relation to grounds 1, 8, 11 and 93 is whether the appellant was given a reasonable or sufficient opportunity to cross examine the respondent in all the circumstances of the present case.
3. At the conclusion of the respondent's evidence in chief at the end of the trial day 1 (23 June 2016) the Magistrate informed the appellant that the cross-examination would need to be conducted in accordance with ROA s 44C.[115] As at 23 June 2016 (being the date of the commencement of the trial), that section provided:

(1) If in any proceedings under this Act a respondent, or a person who is bound by an order -

(b) wishes to cross-examine a person with whom the examiner is in a family and domestic relationship or an imagined personal relationship,

(d) may put any question to the person to be examined by stating the question to a judicial officer or a person approved by the court,

and that person is to repeat the question accurately to the person to be examined.

(i) the person to be examined requests that the order not be made; and

(ii) the court considers it appropriate in all the circumstances for the order not to be made;

(b) if the court is of the opinion that it is not just or desirable for such an order to be made.

1. The fact that the cross-examination was to be conducted in accordance with a provision overtly providing for the protection of applicants for a VRO meant that the Magistrate had a greater mandate to supervise the cross-examination than a routine civil trial without such a provision, and a greater latitude with which to do so.
2. The cross-examination commenced in the manner set out in ROA s 44C. However, after about an hour, the Magistrate, with the approval of the respondent, allowed the appellant to ask questions directly to the respondent.[116] On occasions the Magistrate intervened to ask a question the appellant was unsuccessfully attempting to ask.[117]
3. During the cross-examination of the respondent, the Magistrate dealt with objections made by the respondent to the relevance of the questions being asked. On occasions the objection was upheld.[118] On other occasions, the respondent's objection was not upheld, or the appellant was allowed to continue to cross-examine the respondent notwithstanding her objection.[119]
4. The Magistrate required the appellant to clarify ambiguous questions[120] and prevented him from asking improper questions.[121]
5. The Magistrate quite properly prevented the appellant from giving evidence from the bar table[122] and from making submissions in cross examination [123]
6. On a number of occasions throughout the cross examination, the Magistrate made an observation to the effect that a particular question had been asked and answered a number of times, and directed the appellant to move on or to ask no further questions on the topic.[124] On occasion, it took several attempts by the Magistrate before the appellant moved on.[125]
7. The Magistrate gave the appellant what was, in my view, considerable latitude to ask very detailed questions containing many assertions.[126]
8. Her Honour declined to direct the respondent to provide only yes or no answers to questions asked in cross-examination, observing that the 'answer may require further words to be spoken than yes or no'.[127] This direction was correct at law[128] and appropriate in the circumstances.
9. On one occasion, the appellant raised a concern with the Magistrate that the respondent was giving what he described as a 'completely unrelated' answer, 'chewing up all the time'. The Magistrate on that occasion declined to intervene.[129] In my view, in that instance, the answers appeared to be attempts by the respondent to answer the somewhat general questions asked by the appellant. No criticism can be directed towards the Magistrate for not intervening.
10. At one stage when the appellant complained about the length of the respondent's answers to questions in cross-examination, the Magistrate made the valid point that it would assist if the appellant asked concise questions.[130] On other occasions through-out her cross-examination, the Magistrate directed the respondent to specifically answer questions posed by the appellant.[131] The Magistrate also directed the respondent to the effect that she should try to be concise her answers.[132]
11. In the respondent's examination­in-chief the Magistrate had been equally conscious about timing constraints. From my review of the transcript, it is evident that the Magistrate was very much conscious of the need to limit the respondent's testimony to relevant evidence, on occasion testing the potential relevance of that testimony.[133] The Magistrate also addressed objections going to relevance made by the appellant during the respondent's evidence-in-chief, ruling both in favour[134] and against the appellant.[135]
12. In my view, the interventions by the Magistrate in the appellant's cross-examination of the respondent were restrained (in favour of the appellant) and measured. The Magistrate achieved what was, in my assessment, an entirely fair balance between allowing the appellant to make all the points he wanted to, preventing the respondent from being unduly harassed by repetitive questions and managing the scarce resources of the court.
13. It is also instructive to compare the approach taken by the Magistrate to the cross-examination of the appellant by the respondent. This took place between mid-afternoon on day 5 (4 November 2016) and mid-morning on day 6 (8 February 2017). As with the appellant, the Magistrate told the respondent to ask questions and not give evidence,[136] and not to make submissions.[137] The Magistrate told the respondent not to use emotive language,[138] to keep the cross-examination on track[139] and to move on when the ground had already been covered.[140] The Magistrate limited the cross-examination to relevant matters[141] and ruled on objections to relevance raised by the appellant.[142] Her Honour also told the appellant to answer the question and not talk about this argument.[143]
14. This analysis reveals an even-handed approach by the Magistrate to managing the cross-examination as between the appellant and the respondent.
15. The appellant has not satisfied me that he was denied procedural fairness on the basis of the interventions of the Magistrate in his cross-examination of the respondent.
16. I turn now to the second issue. It was in the context which I have set out in [152] to [162] that the Magistrate decided at the beginning of day 3 of the trial to allow the appellant only that morning to complete his cross-examination. The respondent's evidence in chief took up day 1 of the trial and day 2 had been spent in cross-examination. The appellant says that the decision of the Magistrate to limit his cross-examination had the effect of denying him procedural fairness.
17. At lunchtime on day 2 the Magistrate informed the appellant that, if possible, he should finish his cross-examination by the end of that day.[144]
18. The relevant portions of the transcript in which the Magistrate imposed the limits on the appellant are from the commencement of the proceedings on day 3:

HER HONOUR: Ms Holland. Mr Blenkinsop.

R. BLENKINSOP, MR: Your Honour.

HER HONOUR: All right. You can be seated if you want. Now, we were up the point where, I think, we sat late so you concluded your cross examination on the last occasion.

R. BLENKINSOP, MR: No, my cross examination is not completed.

HER HONOUR: Well, I understood that's why we sat late so you could conclude.

R. BLENKINSOP, MR: No, it's not concluded.

HER HONOUR: Well, how long have you got to go?

R. BLENKINSOP, MR: A day and a half.

HER HONOUR: It's not going to happen, Mr Blenkinsop. I have the right to limit it. She has been cross examined for a day. We've only got three days to complete the rest of the matter. At the most, you can have is till lunchtime today. So you will have to curtail your questions succinctly.

R. BLENKINSOP, MR: Okay. It just means I will be appealing the matter, though, if it doesn't go my way.

HER HONOUR: That's your right, sir. That's your right. You don't have to raise that issue with me.

...

HER HONOUR: Very well. All right. Now, so I've made my ruling. There is another further - till lunchtime - for cross examination because there's already been a day and the evidence in chief was only a day, and matters should proceed. Then, you were going to respond. I think you had some points that you were making, keeping a track of, that you wanted to further explain, which would be by way of re examination on the last occasion, and then, we would push on with any further witnesses you've got ...

1. As I have already observed [105], the Court of Appeal in Rowe makes it clear that what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. Moreover, what might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.[145]
2. The concern identified by the Court of Appeal in Rowe is reflected in RSC O 1 r 4B:

(1) Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -

(a) promoting the just determination of litigation; and

(b) disposing efficiently of the business of the Court; and

(c) maximising the efficient use of available judicial and administrative resources; and

(d) facilitating the timely disposal of business; and

(e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and

(f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.

1. Although the RSC do not apply in the present case, the elaboration of the general principles in Rowe is apposite, in particular par (e) relating to proportionality. The need for courts to ensure proportionality between the scale of the court processes and the importance and complexity of the subject matter of the dispute is widely recognised as being an imperative of the justice system.[146]
2. In the present case, as I have already observed ([86]), the acts of abuse alleged by the respondent were not particularly serious having regard to the range of potential acts of abuse able to constitute an act of family and domestic violence. Yet the trial took seven days. By way of comparison, in 2016 the average length of a District Court criminal jury trial was just over three days.[147] The appellant has not demonstrated that he was prejudiced in any practical way by not having longer time in which to cross-examine the respondent.[148] He has not shown any reasonable basis to suppose that he could or would have made any additional point salient to the determination of the application had more time been available.[149]
3. In this context, the Magistrate 'acted appropriately in the interests of the parties and in the interests of the efficient administration of justice in placing reasonable limits on the length of time that would be allocated' to the cross-examination by the appellant of the respondent.[150] Her Honour certainly made no error of law, fact or discretion in doing so.
4. In any event, the vast majority of the cross-examination which the appellant did undertake went to the issue of potential provocation by the respondent towards the appellant. This was, as I have explained above ([42]), irrelevant. The Magistrate would have been quite justified ruling early on in the cross examination that issues going to provocation were not relevant, and containing the cross examination in that way. So in the end the appellant was allowed considerable latitude in the scope of cross-examination permitted.
5. The appellant has not satisfied me that he was denied procedural fairness in being limited in his cross-examination.
6. For these reasons, the appellant has not established grounds of appeal 1, 8, 11 and 93.
7. Ground of appeal 15 requires separate consideration. It is:
   1. Her Honour was aware I am a lawyer. It appears her honour expects a higher level of conduct in everyday life for lawyers, as opposed to regular people. As such I was held to a higher standard than the Protected Person and was denied Procedural Fairness and/or Natural Justice.
8. The appellant elaborates on this ground in the Appellant's Submissions:[151]

Her honour expect me to have a well crafted cross examination, despite the fact at the time I was not a litigation lawyer, did not have a certificate and this was the second trial I had conducted in my life.

1. As I have already noted ([21]), the appellant was admitted to the roll of legal practitioners in 2007.
2. The relevant exchange to which ground of appeal 15 relates was at 11:14am on day 3:[152]

...

Thousands and thousands of emails accusing people of fraud and criminal behaviour or just thousands and thousands of emails? Thousands and thousands of emails going between you and him of this kind of stuff. Mostly from you.

Your Honour, because you've given me so little time to

HER HONOUR: I haven't given you so little time to have

R. BLENKINSOP, MR: To actually do my cross examination

HER HONOUR: You had a whole

R. BLENKINSOP, MR: I'm now - I've now rushed

HER HONOUR: Sir.

R. BLENKINSOP, MR: I've now rushed my cross-examination.

HER HONOUR: I take umbrage with that. You had a whole day and sitting late on the last occasion. I've given you a half a day on this occasion. A day and a half is more than ample time for well-crafted cross-examination.

R. BLENKINSOP, MR: Well, I'm not a trial solicitor. What makes you think that my cross-examination would be well-crafted?

HER HONOUR: Well, you've been putting - you have been - because you've told me a number of times you're a lawyer.

R. BLENKINSOP, MR: That doesn't - well, this is the first trial I've ever been

HER HONOUR: Well, your cross

R. BLENKINSOP, MR: This is the second trial I've ever been involved in.

HER HONOUR: Your cross-examination should be well crafted, sir.

R. BLENKINSOP, MR: Why?

HER HONOUR: Because it should be. Now, get - don't waste time. Get on with it.

R. BLENKINSOP, MR: Well, I'm just going to have to appeal. I mean, you know

HER HONOUR: Well, you can

R. BLENKINSOP, MR: This whole thing is rushed.

HER HONOUR: Well

R. BLENKINSOP, MR: Well, it's just going to be appealed. I've got no choice.

HER HONOUR: Yes?

R. BLENKINSOP, MR: This - I mean, I'm not even a quarter of the way through my cross-examination.

HER HONOUR: I told you I know you can appeal, sir. I've made my ruling, and I've given my reasons.

1. This particular exchange took place in the context of what I have set out above ([154] to [162]). As I have already observed, the Magistrate gave the appellant considerable latitude in his cross-examination. This latitude was far more that would have ordinarily been given to a legal practitioner formally appearing on the record for a party. From my review of the cross-examination as a whole, the appellant has not satisfied me that he was denied procedural fairness on the basis asserted in ground of appeal 15.

8.6 Was the appellant given an adequate opportunity to present evidence in chief?

1. The appellant asserts that he was not give an adequate opportunity to present his evidence in chief:
   1. The Magistrate without proper cause did not allow me to put questions to my witnesses. For instance I asked my witness a question. The Protected Person objected on the basis that the question had already been asked. The Magistrate allowed the objection despite the fact the question had not already been asked. This happened on multiple occasions. The Protected Person was permitted to ask question repeatedly. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.

1. The Magistrate without proper cause permitted the Protected Person to constantly interrupt my cross examination and evidence in chief. It appears I was not afforded Procedural Fairness and was not heard. It appears I was not afforded Natural Justice.
2. The principle of procedural fairness includes the 'opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders' the party asks for.[153]
3. The issue in relation to grounds of appeal 7 and 11 is whether the appellant was given a reasonable or sufficient opportunity to present evidence in chief in all the circumstances of the present case.
4. The appellant's evidence in chief was taken between mid-afternoon on day 3 (2 November 2016) and mid-afternoon on day 5 (4 November 2016). Large sections do not contain any interruption by either the Magistrate or the respondent.[154] The vast majority of the Magistrate's interjections were either for logistical reasons (mainly document management) or to clarify what was being said. The Magistrate allowed the appellant what was, in my view, considerable latitude in the scope of the evidence led, including in the face of objection by the respondent.[155] On a couple of occasions the Magistrate suggested that the appellant was going into too much detail, something which the appellant did not take issue with at the time.[156] On other occasions the Magistrate told the appellant to move on as he was covering ground for a second time.[157] The Magistrate also, appropriately, constrained the appellant to giving evidence and not making submissions.[158] The Magistrate did not place a limit on the length of the examination-in-chief. The appellant concluded the examination­in-chief in his own time.
5. The interjections of the respondent were minimal given the overall length of the examination-in-chief. They were, in my view, justified. The vast majority of the interventions were on logistical matters (for example, clarifying what document the appellant was referring to). On a couple of occasions the Magistrate told the respondent that she could not challenge what the appellant was saying in examination-in-chief, but had to wait until cross-examination.[159] My review of the transcript does not support the conclusion that the respondent continually interrupted the appellant's evidence-in-chief.
6. The other witness called by the respondent was her daughter, Danelle Brockway. As none of the grounds of appeal appear to expressly challenge the manner in which her evidence was taken, I do not need to separately review her evidence for the purpose of this decision.
7. The appellant called three witnesses to give evidence, in order, his sister Tracey Jakovich, their mother, Judith Blenkinsop, and his partner, Suzanne Ross.
8. Ms Jakovich's evidence was taken on trial day 6 (8 February 2017). In evidence in chief again there were large sections where there was no interjection by either the Magistrate or the respondent.[160] On a number of occasions the respondent objected as to relevance, most of which were accepted, but some of which were not.[161] The Magistrate on occasion prevented the appellant from asking irrelevant questions.[162] The respondent also objected on the basis of hearsay.[163] On one occasion when the respondent objected, the Magistrate told her that she could address the issue in cross-examination.[164] On other occasions, the respondent interjected to request clarification of a matter, which was done by the Magistrate.[165] From time to time the Magistrate also asked questions of Ms Jakovich to clarify a matter.[166] In particular towards the end of the evidence in chief, on a number of occasions the respondent objected on the basis that the witness was being asked questions about a topic for a second time, most of which were upheld, though some were not.[167]
9. On a couple of occasions, the Magistrate prevented the appellant from asking leading questions. This issue is the subject of a separate ground of appeal (see ([224] - [231]).
10. It is also instructive to review the approach taken by the Magistrate in the cross-examination of Ms Jakovich by the respondent. The Magistrate intervened among other bases to tell the respondent to allow the witness to finish her answer,[168] to ask a question instead of making a statement,[169] to clarify the question,[170] to rephrase a question[171] and to move on to the next topic.[172] The appellant interjected on occasion, raising issues like whether the witness could answer the question[173] and relevance.[174] The Magistrate also told the appellant that a concern he raised was something for submissions.[175]
11. The evidence of the mother of both parties, Judith Blenkinsop, was taken on the morning of trial day 7 (9 February 2017). As with the other witnesses, there were large passages where there was no interjection, either from the Magistrate or the respondent.[176] The respondent interjected on a number of occasions on the basis that the appellant was asking the witness questions for a second time, some of which the Magistrate agreed with,[177] some not.[178] The Magistrate also told the appellant to move on for the same reason.[179] On one occasion, the Magistrate told the respondent that the concern she raised could be dealt with in cross-examination.[180] As with other witnesses, the Magistrate also told the appellant that he was going into more detail than was required.[181] There was also an issue with leading questions, which I have again dealt with separately ([224] - [231]).
12. The following passage is illustrative of the type of concerns being raised by the respondent, the response of the appellant and the manner in which the Magistrate managed the interaction:[182]

HOLLAND, MS: Excuse me, he has asked this. This has been covered.

R. BLENKINSOP, MR: For God's sake, your Honour, could I ask a question without her going, 'He's asked this question before'.

HER HONOUR: Well you

R. BLENKINSOP, MR: Now, this

HER HONOUR: But you have.

R. BLENKINSOP, MR: This is my evidence-in-chief and she's butting in virtually every question.

HER HONOUR: Well, you have asked the - your mum's

R. BLENKINSOP, MR: I haven't asked her when the friction really ramped up.

HER HONOUR: Yes, you did. She said it started - I can - wait, I will go back and I will read you the answer.

R. BLENKINSOP, MR: Okay. Well, yes, I can't remember what her answer was, in what year the friction really ramped up.

HER HONOUR: Well, I will tell you where it was.

THE WITNESS: Virtually the day I signed the - got tricked into signing papers.

R. BLENKINSOP, MR: So who were the accusations - made against? Well, in the end against the solicitors that didn't look after me.

Which family members were - so the accusations - well, were the accusations made against family members, that it wasn't open and transparent? Mr Wolff said that anybody in the family - the five children, at any - and myself, could ask him any questions that they wanted to. And then

Yes. And then after that ? Mm.

you went - after that, did we stay with Mr Wolff?

HOLLAND, MS: Excuse me, your Honour, she's answering but then he

THE WITNESS: I

R. BLENKINSOP, MR: She's - every single question, your Honour.

HER HONOUR: Well, you do speak over the top of your mum when she's trying to answer.

R. BLENKINSOP, MR: Well, yes, I mean, she's giving an answer that I know it's irrelevant, so

THE WITNESS: And I rang him to say that Scott had - Ross had complained

R. BLENKINSOP, MR: Hang on. Can I just cut you off there because the information you're giving is not really relevant to this matter? Right. Sorry.

So there was an accusation - you're saying there was an accusation by everybody that it was not open and transparent. Were those accusations levelled at family members? So it was at particular family members that it was not open and transparent? Was it levelled against anybody in the family, that it was not open and transparent? Like, was the accusation against me, for instance? Yes.

That it wasn't open and transparent? No, you were told not to annoy them.

But, hang on, was the - so if it wasn't against me, who was it against?

HOLLAND, MS: He's fishing for an answer again.

R. BLENKINSOP, MR: All right. Let's move on? Look, I don't even - I don't recall. I just

Let's move on? recall ringing the man up

HER HONOUR: Just I might keep you moving.

1. As with Ms Jakovich, it is also instructive to also review the cross-examination of Judith Blenkinsop by the respondent. My review reveals that the Magistrate again adopted a balanced approach, in particular in requiring the respondent to keep her questions focussed and on track. On occasion, the Magistrate told the respondent to ask questions where the respondent was making statements[184] or to move on when the ground had been covered.[185] The appellant interjected from time to time including as to whether the question was within the proper scope of cross-examination,[186] relevance,[187] when he did not understand the question[188] and on the basis that the question had already been asked.[189] The appellant also objected on the basis that the respondent's question was leading,[190] something permissible in cross-examination.[191]
2. The appellant's partner, Ms Ross, gave evidence on trial day 7 (9 February 2017). Again, large sections contain no interjection by either the Magistrate or the respondent.[192] There were minimal interjections by the respondent to clarify the question[193] or where she felt there was repetition.[194] In cross-examination, the Magistrate told the respondent to ask questions and not give evidence.[195] The Magistrate also intervened to ensure that questions were not misleading[196] and were limited to matters Ms Ross could give evidence about.[197]
3. Looking at the conduct of the trial as a whole, the appellant has not satisfied me that he was not afforded a reasonable or sufficient opportunity to present the evidence he wished to present. As I have said, the Magistrate gave him considerable latitude in the scope of the evidence able to be presented. One particular issue was that the appellant had a tendency to try to cover the same ground on multiple occasions. This, as I have noted, generated many interjections from both the respondent and the Magistrate. Those interjections were, in my view, justified. With Judith Blenkinsop, at points there were many objections by the respondent. However, the vast majority were justified by the manner in which the appellant was asking his questions. The objections that were not justified were not allowed.
4. It is evident that the dynamics in the courtroom were quite difficult to manage (see also [351] below). However, for the most part, the genesis of those difficulties was the manner in which the appellant was questioning his witnesses. The Magistrate was faced with the difficult three way balance of allowing the appellant some latitude as a litigant in person, responding to the legitimate concerns of the respondent (and allowing her some latitude as a litigant in person as to how those concerns were expressed) and at the same time ensuring that the trial kept moving. In achieving this balance, the Magistrate, in my view, afforded the appellant ample procedural fairness and did so in a manner that was even-handed as between the appellant and the respondent.
5. The appellant has not made out grounds of appeal 7 and 11.

8.7 Was the appellant denied procedural fairness by the Magistrate not reconvening the hearing after the conclusion of the trial?

1. The appellant asserts he was denied procedural fairness as he was not permitted to adduce further evidence after the trial was complete.

96a. Further evidence came to light after the trial was complete. I asked to reconvene the court. I was not permitted to reconvene the court. It appears I was not heard and was not afforded Natural Justice.

1. The principles to be applied in determining an application to adduce further evidence were recently summarised by Derrick J 1110 Hay Pty Ltd as trustee for The Hay Street Trust v Metso Minerals (Australia) Ltd [No 2]:[198]

A court has the power to re-open a case after a hearing has concluded but before judgment is delivered for the purpose of hearing additional submissions or admitting new or additional evidence.

A variety of factors will be relevant to the exercise of the discretion to re-open.

The guiding principle is whether the interests of justice are better served by allowing, or rejecting, the application to re-open.

Other factors which are relevant to the exercise of the discretion include:

1. The time at which the application is made (leave to re-open will be more readily given where the application is made after judgment has been reserved and before judgment has been given);
2. The likely prejudice to the party resisting the application;
3. The public interest in the finality of the litigation and the clear expectation that parties will advance all of their arguments at the time of the hearing; and
4. Case management principles, especially the need for the court to manage litigation efficiently, having regard to the limited resources of the courts and the demand for those resources.

Further, in a case like the present where the application is to re-open to admit additional evidence, additional factors relevant to the exercise of the discretion will include:

1. Why the evidence was not adduced at the hearing, and in particular whether a deliberate decision was made not to adduce the evidence, or whether the evidence would have been available had reasonable diligence been exercised; and
2. The materiality of the evidence to the issues in dispute and whether the admission of the evidence may produce a different result.
3. These principles reflect the general principles as regards procedural fairness which I have set out above ([104] - [106]).
4. The appellant did not identify in the Appellant's Submissions the specific evidence he sought to have admitted, nor provide detail as to the decision of the Magistrate declining to reconvene the trial. The evidence appears to be the same evidence which I declined to admit in the appeal (see [13] above). The evidence included the transcript of a criminal trial on 12, 13, 14 and 15 June 2017 which I understood was for breach of the restraining order the subject of this appeal.[199]
5. The observations I have already made about the disproportionate amount of time spent on this trial against the seriousness and complexity of the matters in issue apply equally to the complaint in ground 96a.
6. The appellant has not satisfied me that he was denied procedural fairness in not being allowed to adduce further evidence after the conclusion of the trial. Ground of appeal 96a is not established.

9. Grounds involving demeanour and credibility

1. The Magistrate made some general comments as to the evidence addressing the credibility of the witnesses:[200]

There were 6 witnesses called at the final order hearing. They were Mrs Holland and Mrs Holland's daughter Ms Danelle Brockway. I have noted above that Mrs Holland is Mr Blenkinsop's sister and thus Ms Brockway is his niece. Mr Blenkinsop gave evidence and called his mother Mrs Judith Blenkinsop, also Mrs Holland's mother, to give evidence. He called his sister, also Mrs Holland's sister, Mrs Tracey Jakovich to give evidence. Mr Blenkinsop also called his partner Ms Suzanne Ross to give evidence at the final order hearing. All witnesses who gave evidence appeared to me to be honest. In particular I am not persuaded to prefer the evidence of either of the applicant or the respondent where there is a conflict as neither Mrs Holland or Mr Blenkinsop were shown to be dishonest witnesses, notwithstanding that their evidence conflicts on some matters. I am certainly not persuaded that any witness fabricated evidence.

As there has been a transcript of over 1000 pages made of the evidence given across all the hearing days I do not propose to repeat all the evidence given for the purpose of these reasons. I have annexed a short precis of each witness's evidence at the end of these reasons for decision save for that of Ms Brockway who is Mrs Holland's daughter. Her evidence was not time specific and generalised and based to some extent on what she had told been rather than her own observations. I did not find that her evidence advanced the resolution of the matters in dispute to any significant extent and whilst I have noted it, I have not set it out in these reasons.

1. The appellant queries the status of the annexed summaries of evidence (page 29 being the first page of Annexure A dealing with the evidence of the respondent):
   1. I refer to page 29 of her honours decision. It is unclear if her honour is simply stating the evidence or the evidence she relied upon.
2. The Magistrate refers to each Annexure as being a 'short precis' of the witness's evidence. It is a statement of the evidence in summary form.
3. The Magistrate also made a comment as to the demeanour of the appellant and respondent:[201]

The applicant Ms Holland is a 62 year old woman who is not currently employed outside of the home but is actively involved in the home schooling community. She is a well-educated woman who is of the Jehovah Witness faith. Mr Blenkinsop is lawyer in his mid fifties. Throughout the many days of hearing I observed Mrs Holland to be a quiet person with a reserved demeanour. She was visibly distressed on several occasions by Mr Blenkinsop's court room demeanour. Mr Blenkinsop displayed a loud, robust and at times unsubtle demeanour in the Court room. The court was required to warn him about his use of profanity and his conduct towards Mrs Holland in the courtroom. However he too became distressed on one occasion whilst giving evidence. I consider that the lengthy hearing of itself was highly likely to have been a most difficult experience for both of these people.

1. The appellant challenges the approach taken by the Magistrate to the demeanour of the respondent:
   1. The Magistrate made an error of fact and/or law in determining that the Protected Person was a credible witness when the evidence supported no such finding. For instance all of the Protected Persons material claims were refuted by documentary and oral evidence by witnesses who the Magistrate found to be credible.

1. The Magistrate made a mistake of fact in interpreting the Protected Persons demeanour as a sign of credibility. I was outspoken as I was confident justice would prevail and I would be acquitted of all of the Protected Persons outrageous claims. I have known the Protected Person all my life she is normally outspoken. The reason the Protected Person was quite is because she was as guilty as sin. Her honour did not characterise my demeanour correctly and as such it appears I was not heard. It appears I have not been afforded Natural Justice.

Obviously the simple way to game the system is to be quiet and reserved as the court perceives that as innocent. It becomes a simple game of the best actor wins. In the appeal should I be quiet, reserved, compliant and submissive so as to game the system?

1. It appears her honour made a mistake of fact or law in thinking that demeanour is a reliable indicator of guilt, credibility and/or innocence. Studies have shown that people are hopeless at picking a good liar. Studies have also shown magistrates are no better than regular people at picking a good liar, and this case is a case in point.
2. The Magistrate made a mistake of fact in interpreting the Protected Persons tears as tears of a victim. The Protected Persons was upset as she knew her case was falling apart, she was as guilty as sin and was about to be caught out.

1. Her honour made a mistake of fact or law in concluding that the matters that occurred in Kim particulars even occurred. Kim had absolutely no credibility at all and witnesses who were credible refuted and denied all of those matters. It appears her honour has again made an error in favour of the Protected Persons case.

1. I am an honest witness which is readily apparent from the totality of the evidence. It is readily apparent from the evidence that the Protected Person had nil credibility. Astonishingly the Protected Person was believed and I was not believed. It appears I was denied Procedural Fairness. Procedurally I should have been believed and procedurally the Protected Person should not have. It appears I was not heard. It appears her honour made an error in favour of the Protected Persons case.
2. I am an honest witness. It is readily apparent from the evidence that the Protected Person had nil credibility. Astonishingly the Protected Person was believed and I was not believed. It appears I was denied Natural Justice as that is unjust and unfair

1. Kim said under oath if there were 10000 emails from me, 9999 would be abusive. The documentary evidence established that was not true. Kim has nil credibility. Kim said under oath she was helping her mother. Kims mother said under oath Kim was not helping her. Her honour said Kims mother was an honest witness. Kim said under oath I send copious abusive, intimidating, threatening emails morning noon and night for years. The documentary evidence established that was not true. Kim has nil credibility. There are many many many other examples. Her honour made a mistake of fact or law in considering that Kim was an credible witness. Her honour made a mistake of fact or law in considering that my evidence should not be preferred to Kims.
2. My evidence was Kim was not a credible witness which was readily apparent from the evidence both oral and documentary. Her honour disagreed with me. It appears I was not heard or her honour failed to properly consider the evidence and submissions and I was ultimately denied Natural Justice. I repeat all other grounds of appeal her mutatis mutandis.
3. Her honour made a mistake of fact or law in considering that there were only 'some conflicts' between my evidence and Kims. Our evidence conflicted on every single material matter. It appears I was not heard or her honour failed to properly consider my evidence and submissions and I was ultimately denied Natural Justice. I repeat all other grounds of appeal here mutatis mutandis.

1. Her honour made an error of law or fact in determining that Kim was distressed by my court room demeanour. With all due respect her honour is not a trained psychologist, clairvoyant and cannot read minds. Kim was distressed as she knew her case was a complete fabrication and she was about to be caught out and probably pay a hefty costs order. The rest was just crocodile tears. I repeat all other grounds of appeal here mutatis mutandis.
2. Her honour made an error of law or fact in considering that demeanour is somehow indicative of innocence or guilt when studies have shown it means nothing, as it is a simple matter to game the system and magistrates are no better at picking liars, based on demeanour, than anyone else, as this case clearly demonstrates.
3. I was loud, robust and angry as I was a persecuted whistleblower, who had been serially abused by Kim and Scott for years. I had been sued repeatedly by them. Their actions have cost me close to $1 million. And I was now the victim of court sanctioned persecution, again. All of Kims claims, like the many other vexatious and frivolous actions she had commenced against me and other family members, were pure fabrication, and it appeared her honour was lapping it up.

1. As mentioned all of Kims claims were refuted by me. All Kims claims and evidence, given under oath, were also refuted by my sister Tracey and my mother's evidence. Kim had nil credibility so how could anyone believe anything she said. Astonishingly it appears her honour believed most of what she said. I repeat all other grounds of appeal here mutatis mutandis.

Under oath my evidence was I was invited to Kims house. My partner Sue echoed my evidence. I denied there were arguments as stated by Kim. None of what Kim said was corroborated by any other witness. 99% of what I said was corroborated by other witnesses, including Kims witness. Frankly there is no way the evidence supports the findings. I never sent 10000 emails to Kim. Kim didn't not produce any evidence to support her claim I sent 10000 emails. I produced documentary evidence establishing that I did not send 10000 emails, the vast majority of which were not abusive in any way what so ever, also supported by my documentary evidence, and Kims documentary evidence! Kim never asked me to stop sending emails and if she did, which is not conceded, she later waived that request. She was not copied in on 'every email'. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.

1. As pointed out in submission all member of the family thought Kim and Scott were working together. My evidence was corroborated by other Kims was not. Kim had nil credibility. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.

1. Page 35 as outlined in my submissions Kims own witness, her daughter, my niece, admitted in her testimony that Kim poisoned her against us. This evidence was corroborated under oath by my sister Tracey, my mother and my partner Sue. Clearly Kim was prepared to attack the nieces and nephews. The court prevented me from proving this point by not allowing me access to Kims emails. It appears her honour erred. I repeat all other grounds of appeal mutatis mutandis.

1. I refer to page 62 of her honours reasons. I note her honour decides to seize on a single instance where I contradicted my own evidence, I assume as a sign of lack of credibility. I note in my submissions there were 290 pages of Kim contradicting her own evidence, or her evidence being contradicted, by her sister, her mother and me her brother, her honour has not cited a single instance of Kim contradicting her evidence and further found her to be credible witness. Kim has literally hundreds of instances where her evidence is contradicted. I have potentially one. It appears her honour may be biased or is using one standard for me and a vastly less stringent standard for Kim.

1. Her honour made a mistake of fact or law in that she thought Tracey and Mum were not independent witnesses, when in fact they were. Her honour gave no indication of the basis used to arrived at this decision so one can only speculate. Tracey is my sister and is Kims sister, she is equally dependent/independent of us both, same for Mum, mutatis mutandis. Tracey and Mum both gave evidence that favoured both my case and Kims case, they just told it like it was. There was nothing at any time throughout the entirely of the proceedings to indicate in any way that Tracey and/or Mum were in any way beholden to me.

Mum disliked Kim but that is just a natural consequence of a daughter (Kim) depriving her mother of money for 12 months and trying to forcibly remove her (Mum) from her home of 27 years. That does not mean Mum likes me or favours me.

1. I made an angry and upset outburst in court. Kim and Scott have trolled me for years, threatened me and my family, abused me and my family, tried to forcibly remove my mothr fro er home, cost me about $1 million, refused to tell me my nephew with whom I was close was suicidal, caused me to be personally sued 4 times in the last 5 years, bought numerous vexatious claims against me, that's just the short list. If I was not angry I would be inhuman. Essentially that is part of my defence to Kims claims. That is part of the metaphorical baseball bat Kim struck me with.

1. Her honour said that I was an evasive witness. Kim probably only answered 10% of the question she was asked and avoided answering the other 90%. Her honour made no finding that Kim was an evasive witness, despite my repeated characterisation in my submissions, and numerous examples. It appears her honour had one standard for Kim and a much more stringent standard for me. It appears I was not afforded Procedural Fairness.
2. In relation to findings of demeanour and credibility in the context of an application under the ROA, EM Heenan J made the following observations in Myles v Carroll:[202]

While paying due regard to the advantage which the learned Magistrate had through seeing the witnesses and enjoying the capacity to measure their temperament and demeanour through direct observation, it is still necessary for this Court on this appeal to conduct a real review of the trial and of the reasons given for the decision. The importance of an appellate court undertaking the task of reviewing the evidence and reaching its own inferences and conclusions has recently been reinforced by the decision of the High Court in Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989 where the need to perform this task was emphasised by the joint judgment of Gleeson CJ, Gummow and Kirby JJ.

1. It is instructive to quote a number of observations from the decision of the plurality in Fox v Percy:[203]

The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'... On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record... These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share... Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole...

...

... the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings...

... In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"... or "contrary to compelling inferences" in the case... In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.

...

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances... Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

1. The position is succinctly summarised by the Court of Appeal in Woodley:[204]

It is well established that an appellant who seeks to overturn credibility-based findings of fact faces a high hurdle. An appellate court is, in some respects, at a disadvantage as compared to a trial judge who sees and hears the witnesses giving their evidence. Generally, the trial judge's credibility-based findings of fact will not be reversed on appeal unless it is demonstrated that (1) those findings are flawed by reference to incontrovertible facts or uncontested testimony; or (2) the findings are glaringly improbable or contrary to compelling inferences; or (3) the trial judge has failed to use, or has palpably misused, their advantage as trial judge.

1. In summary, in an appeal against the findings of fact made by a magistrate, the appellant must do more than show that an alternative finding was available on the facts.[205] Rather, the appellant must show that a factual error was made by the magistrate.[206] An appellate court should not interfere with a magistrate's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[207]
2. The Magistrate's general findings as to the credibility and demeanour of the witnesses set the context for the specific factual determinations. They are only relevant to the appeal to the extent that they impact on a specific factual finding. That is, it is only if the Magistrate's general findings on the credibility and demeanour of a witness led the Magistrate to an error of fact in relation to a specific factual finding that there is a basis to set aside the decision of the Magistrate in the present appellate review process.
3. There are two bases on which it could be said that the Magistrate's factual findings as to credibility and demeanour could lead the Magistrate to have made an error of fact relevant to the appeal. The first is the Magistrate's finding that she was 'not persuaded to prefer the evidence of either the applicant or the respondent where there is a conflict as neither Mrs Holland or Mr Blenkinsop were shown to be dishonest witnesses'.[208] In essence the appellant is asserting that this finding was in error and that the Magistrate ought to have found the respondent to have been a dishonest witness generally, and to have preferred his evidence to hers in every instance of a conflict.
4. In relation to this first basis, the Magistrate had the distinct advantage of seeing the parties over the course of a 7 day trial. Her Honour had the capacity to measure and assess their temperament and demeanour through direct observation. Giving weight to this factor, and on my review of the evidence in this case, it was open to the Magistrate to make the general observations which her Honour did as to the demeanour and credibility of the parties and the witnesses which they called. The appellant has not satisfied me that the Magistrate's general findings of credibility were glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony. Nor has the appellant satisfied me that the Magistrate has failed to use, or has palpably misused, her advantage as trial judge.
5. I observe at this point that the fact that the Magistrate did not agree with the submissions of the appellant does not, without more, mean that the appellant was denied procedural fairness. It is inherent in the process of judicial determination that the decision maker is, after due consideration, going to disagree with the submissions of one or other party.
6. The second basis on which it could be said that the Magistrate's findings as to credibility and demeanour are relevant is in relation to the specific factual findings made. It is in this context that the observations of the High Court in Fox v Percy encouraging judicial officers 'to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' has particular significance. I will return to this issue in pts 11 and 12 in the context of the specific factual findings made by the Magistrate.
7. It is sufficient at this point to find that the appellant has not satisfied me that the Magistrate erred as set out in grounds of appeal set out at [212] on the basis of the general findings as to the credibility of the respondent.

1. Where an application under the ROA is dealt with by the Magistrates Court, the practices and procedures applying in the civil jurisdiction of that court apply.[209] Unless a written law provides to the contrary, the rules of evidence that apply in the Supreme Court apply in the Magistrates Court.[210] As set out above ([23]), the procedural law applicable was that as at the commencement of the trial on 23 June 2016. On the ROA as it then stood, it was only in an ex parte application for an interim order that the 'court is not bound by the rules of evidence'.[211] The effect is that the Magistrate was bound by the rules of evidence in making the Magistrate's Decision.

1. The appellant takes issue with the approach of the Magistrate to the way he asked questions in examination­in-chief:
   1. Her honour made a mistake of fact or law in that she thought I asked leading questions during evidence in chief when in fact, as I explained in my submissions, I did not. It appears her honour did not consider the evidence allegedly provided by leading questions or gave it minimal weight. A leading question is where the answer to the question is suggested in the question itself. For instance lets say the cat is white. Lets say I asked my mother is the cat black? she could answer yes, no, maybe, I don't know, its dark grey, which cat, we have a dog, the old cat or new cat etc etc there is virtually and endless number of different answers. Her honour has erroneously characterised such a question as a leading question.

I note I did not ask the cat is not black is it? in which case I suggest the correct answer is 'no' in the question itself, which would be a leading question.

I asked some leading question but only in relation to uncontroversial matters, which I pointed out to her honour at the time. The case did not turn on any answers to leading questions, it simply saved time.

1. There were some instances with the evidence of Ms Jakovich where the Magistrate raised the issue of the appellant asking a leading question.[212] However, nothing seems to turn on these instances. The issue did not arise with Ms Ross. Rather, the issue of leading questions seems to have been of particular concern to the appellant in the evidence of Judith Blenkinsop. On a number of occasions, the Magistrate told the appellant not to lead.[213] The following passage gives a good flavour for the dynamics:[214]

Now are you aware that there was - or someone was agitating to get rid of Lavan? Mm.

Or, you know, that people weren't happy with Lavan? Yes.

And people were trying to get replacement solicitors for Lavan? Yes.

Do you know why? Can you - do you know why people were not happy with Lavan? Well, Lavan's speciality wasn't what we were arguing about, and they were extremely expensive.

Now, can you - and how often or how long did this agitation to get rid of Lavan - how long did that go on for? No idea really.

Was it more than a month? Yes.

Was it more than a year? No.

So about a year or so? More than six months? About six months, yes.

So there was a six month period of time where someone was agitating to get rid of Lavan? Yes.

HOLLAND, MS: Excuse me, your Honour, this is all - well, I think this is leading.

HER HONOUR: Yes, I've marked it down as leading.

HOLLAND, MS: Yes.

HER HONOUR: I can't - I've given that warning. It just devalues the evidence.

R. BLENKINSOP, MR: Well, I just don't understand why it's a leading question.

HER HONOUR: Well, you said 'Was it more than a month?' 'Yes.' 'Was it less than a year?' 'So it was six months?' 'Yes.' That's leading.

R. BLENKINSOP, MR: Well, no, because she can say no.

HER HONOUR: It suggested - she said yes. It suggested the answer to this lady, and she's more than capable of giving her own answer. You've got to be careful. I've warned you. I'm not warning you again. It just devalues her evidence.

R. BLENKINSOP, MR: But I don't understand why that's a leading question, your Honour, when she

HER HONOUR: Because you've suggested the

R. BLENKINSOP, MR: can say, no, or, yes, or, maybe, or, I don't know. There are multiple

HER HONOUR: You suggested the answer to her. She actually said 'I have no idea how long it went on for.' 'What it more than a month?' 'Yes'. 'Was it less than a year?' 'Yes'. 'Was it six months?' 'Yes'. Leading questions. And really your mum had said quite clearly and she was probably on the sidelines, no idea how long it went on for, which is probably correct.

1. 'A leading question is one which either suggests the answer desired, or assumes the existence of disputed facts'.[215] So the Magistrate correctly identified that a question will be leading if it suggests the answer.
2. As Beech J observed in Stone v Braun:[216]

In some circumstances a judge ruling proposed evidence to be inadmissible may need to explain the ground on which it is inadmissible with sufficient clarity to ensure that a self-represented litigant understands it, and can consequently consider steps that might be taken to remedy the problem.

This is what the Magistrate did in the passage quoted.

1. As to the substance of the appellant's complaint, where information is conveyed in a question, at some point along a continuum, the question will suggest the answer to the witness and will become leading. The fact that at each point along that continuum the question may be answered 'yes/no' is in no way determinative. To use the appellant's example of the black cat, a more extreme example illustrates the point. A question in the following form would clearly suggest the answer: 'Just before the assault occurred, did you walk from the shop towards your home and see the defendant's black cat Smudge?'. This question can be answered 'yes/no' but conveys so much information as to be very suggestive of the answer. The task of recollecting the event has passed from the witness to counsel. A pure non-leading form would be: 'You have given evidence that just before the assault occurred you were walking from the shop towards your home. Describe what happened as you were walking'. The task of recollecting whether the witness saw the defendant's black cat Smudge is with the witness. The continuum of questions could go: 'Did you see anything of relevance to this case?', 'Did you see an animal?', 'Did you see a cat?', 'Did you see a black cat?', 'Did you see the defendant's black cat Smudge?'. Each question can be answered 'yes/no', but each progressively suggests more and more information to the witness. Where along this continuum the question becomes so suggestive to be leading will depend on the context in which it is asked. If the witness recollects seeing a cat, then it is permissible to ask: 'What colour was the cat?' It is suggestive and potentially leading to ask: 'Was the cat black?' or 'was the cat the defendant's black cat Smudge?'
2. In the present case, the appellant has not drawn my attention to any ruling by the Magistrate in which a question was incorrectly characterised as leading. Neither in his grounds of appeal nor Appellant's Submissions did the appellant identify any question he asked of a witness, which was ruled to be misleading, that was of any significance to the outcome in the decision. Rather, as set out in ground of appeal 92, the appellant's view is that: 'The case did not turn on any answers to leading questions'.
3. However, assume a judicial officer incorrectly disallows a question on the basis that it is leading and requires the party to reframe the question as a non-leading question. The witness gives an answer which is admissible. There does not appear to be any consequence of the error in characterising the question as leading or not.
4. The appellant asserts that it appeared that the Magistrate 'did not consider the evidence allegedly provided by leading questions or gave it minimal weight'. To the extent that this occurred, the Magistrate was correct in doing so. The answers to leading questions in examination-in-chief or re-examination are not admissible in evidence.[217] However, neither in his grounds of appeal or Appellant's Submissions did the appellant identify this evidence; he did not identify any specific evidence which was adduced in response to a question incorrectly characterised as a leading question which the Magistrate is said to have given minimal weight to.
5. The appellant has not established ground of appeal 92.

10.3 Evidence to which legal professional privilege attached

1. The appellant asserts that the Magistrate erred in not considering certain of the emails based on legal professional privilege:
   1. Her honour said she did not consider emails to which professional privilege attached. The privilege belonged to Kim and I and it was ours to waive. It appears her honour has erred. I repeat all other grounds of appeal here mutatis mutandis.
2. The Magistrate's finding on this issue is in the following terms:[218]

I note that that some of the e-mails amongst the large volume of e-mails tendered at the hearing claim legal professional privilege with no specific waiver of that claim by the parties to those e-mails. I have therefore not taken the contents of those particular e-mails into consideration.

1. Legal professional privilege may waived by a client. The waiver may be express or implied. Waiver by implication, or operation of law, occurs where the party entitled to the privilege performs an act which is inconsistent with the confidence preserved by it.[219] As to this principle, in Osland v Secretary to the Department of Justice the plurality observed:[220]

It reflects a judgment that the conduct of the party entitled to the privilege is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. Such a judgment is to be made in the context and circumstances of the case, and in the light of any considerations of fairness arising from that context or those circumstances.

1. This is an issue on which the Magistrate ought to, and appears to have, taken into account the fact that the parties were litigants in person who may well not have appreciated the significance of documents being the subject of legal professional privilege. Specifically, a court should be very cautious before coming to the conclusion that a litigant in person impliedly waived legal professional privilege.
2. To the extent that the privilege over an email was solely that of the respondent, the Magistrate did nor err in declining to take the email into account in the absence of a specific waiver by the respondent.
3. The appellant in ground of appeal 48 asserts that the privilege was joint. A joint privilege arises where two or more persons communicate with a legal advisor for the purpose of retaining that legal advisor's services or that legal advisor's advice.[221] The principles relating to a joint privilege are conveniently summarised in the judgment of Sheller JA in Farrow Mortgage Services Pty Ltd (in liq) v Webb:[222]

Two or more persons may join in communicating with a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The privilege which protects these communications from disclosure belongs to all the persons who joined in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one of a group of persons in a formal legal relationship communicates with a legal adviser about a matter in which the members of the group share an interest. Communications by one partner about the affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the relationship is the duty or obligation to disclose to other parties thereto the content of the communication. Accordingly no privilege attaches to such communications as against others who, with the client, share an interest in the subject matter of communication. But the parties together are entitled to maintain the privilege 'against the rest of the world': Phipson, par 20-28 and par 20-29. Logically the joint nature of the privilege means that all to whom it belongs must concur in waiving it. Theirs is one inseverable right. In pars 20-29 the learned editors of Phipson say that in the case of joint interest, it is sufficient, as against third persons, if only one of the interested parties claims the privilege, though all must concur in waiving it. In Rochefoucauld v Boustead [1897] 1 Ch 196, two parties were engaged in a joint venture. The first invited the second to consult his solicitor but, in proceedings against both parties, waived any privilege in respect of what took place. The second party was held to remain entitled to insist upon the maintenance of the privilege.

1. So where both the appellant and respondent were entitled to the privilege jointly, no privilege attaches as between them. This is because each was entitled to have access to the confidential communication, and there is no occasion to call in aid the privilege to protect the confidential communication from disclosure to a party not otherwise entitled to have access to it. So to this extent the Magistrate erred in not taking into consideration the privileged portions of the email tendered.
2. The issue then arises as to the consequences of this error.
3. There is no statute or rule which qualifies the discretion of the court to order a retrial set out in MCCPA s 43(7).[223]
4. At a general level, '[o]rdering a new trial is in all cases a deplorable result and an appeal court should properly turn its attention to how, within the powers conferred on it, such a deplorable result might properly be palliated'.[224] This is particularly so in the present case as the trial took 7 days, dealt with an interim violence restraining order which appears to have achieved its purpose of preventing the appellant from committing further acts of abuse towards the respondent in the 3 or so years between being granted and the date on which the decision in the trial was given and which has no ongoing utility.
5. At common law, if evidence is wrongly rejected, an appellate court conducting a rehearing may, but not must, order a new trial.[225] In the words of Dixon CJ in Balenzuela v De Grail:[226]

When material evidence has been erroneously rejected at the instance of the party who succeeds, then to deny nevertheless to the unsuccessful party the remedy of a new trial the Court must have some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so.

1. In Brown v Churchill Pullin JA observed that the common law position was to the effect that a retrial would be ordered unless 'the rejection of evidence would cause no miscarriage of justice'.[227]
2. In the present case, I am not applying the common law, but determining the scope of the statutory discretion in MCCPA s 43(7). Aside from the fact that the discretion arises in the context of a review of the decision of the Magistrate by way of rehearing (see [14] above), the discretion in MCCPA s 43(7) is unfettered. Consistently with the position generally in the appeal (set out above [14]), the onus is on the appellant to persuade the court to exercise the discretion in his favour.
3. The common law position aligns with the position where the error as to the admissibility of evidence is said to have deprived a party of his or her right to procedural fairness. There is no absolute rule that the error leads to the decision being set aside. Rather, the rule is that the error is not in itself a denial of natural justice unless it had the effect of depriving the party of a fair opportunity to present its case.[228]
4. As to the exercise of the discretion, the factors which the court is entitled or bound to consider or take into account, and any factors which the court is not entitled to consider or take into account, are to be ascertained by implication from the subject matter, scope and purpose of MCCPA s 43(7) as a whole.[229] Within that framework, in my view the common law position sets a balance between ensuring that the trial proceeded according to law[230] and avoiding the 'deplorable' outcome of a new trial following an appeal. Accordingly, it is appropriate that I apply something akin to the common law position in exercising the discretion in MCCPA s 43(7). This has the effect that, in exercising the discretion in MCCPA s 43(7), a significant factor is whether a miscarriage of justice has occurred as a result of the error identified in the review. This, in turn, requires me to consider, among other things, whether, having regard to the evidence as a whole, the evidence wrongly rejected by the Magistrate 'could, would or should have had any significance in determining the outcome of the trial'.[231]
5. It is necessary to identify the specific evidence to which this error relates.
6. Of the 13 emails relied on by the Magistrate (see [254] below), only one contains a statement to the effect that it is the subject of legal professional privilege, being exhibit 38. The contents of this document are a request for a resolution to be placed before what appears to be the Litigation Committee. Assuming that it is, this content is not the kind of confidential communication that would enliven legal professional privilege. The appellant addressed exhibit 38 in some detail in the Appellant's MC Submissions, and at no point asserted that it was privileged.[232] It appears that the Magistrate was of the same view, as her Honour relies on the contents of exhibit 38. Significantly, there is no other material in the exhibits specifically relied on by her Honour which on its face appears to be subject to a claim for legal professional privilege.
7. The appellant has not identified any specific documents, or portions of which, he says were erroneously excluded as being subject to legal professional privilege.
8. Some of the other documents tendered as exhibits contain material which, on its face, may well be subject to a joint legal professional privilege.[233] I say may well be, as the nature of the communication in each case was more of an administrative nature as opposed to the kind of confidential provision of advice necessary to attract the protection of legal professional privilege; so it may be that the contents are not at law privileged. I do not need to determine this issue as there is nothing in this material which materially undermines the conclusions of fact reached by the Magistrate. In other words, the reception into evidence of the material would not have made any difference to the Magistrate's Decision.
9. The remaining issue is MFI 6 which is an email from the respondent to, among others, Courtney Robertson, a lawyer at Lavan Legal. It also appears to have been copied to Nick Stagg, another lawyer at Lavan Legal. There is a subject reference at the top of the page: 'Confidential and legally privileged'. The content appears to be the respondent's observations on a mediation, which on the other evidence I understand to be a Supreme Court mediation. The appellant sought to tender this document in his examination­in-chief.[234] The Magistrate expressed what I take to be a preliminary view that the email was either privileged or protected by the Supreme Court's mediation privilege.[235] This issue was left on the basis that the Magistrate would decide on a later date whether it was admissible. This does not appear to have occurred. It is sufficient for me find that, having reviewed MFI 6, I do not consider that the reception into evidence of this document would have made any difference to the Magistrate's Decision.
10. For these reasons, having regard to the evidence as a whole, I am not persuaded that any evidence which I can identify as being potentially either included or rejected in error by the Magistrate could, would or should have had any significance in determining the outcome of the trial.[236] There is no other factor suggesting that a miscarriage of justice has occurred as a result of any error by the Magistrate as regards the application of legal professional privilege. Accordingly, notwithstanding that there may well have been an error of law by the Magistrate, the appellant has not satisfied me that it is appropriate that I exercise the discretion in MCCPA s 43(7) to either set aside the decision and either dismiss the application or order a retrial. Nor has the appellant satisfied me that the error excluding privileged portions of exhibits had the effect of denying him a fair opportunity to present his case.

11. Grounds including factual findings relating to acts of abuse

1. It is instructive to start with the detailed findings made by the Magistrate:[237]

It is relevant to note that Mrs Holland and Mr Ross Blenkinsop and their siblings, including Mr Scott Blenkinsop, had been office holders in the trustee companies of the family trusts. They were also guardians and appointers of the trusts. Mrs Holland had also been for some years the secretary of one of the trusts. They have both been parties to Supreme Court litigation involving the family trusts. There was clearly a very unhappy and dysfunctional family relationship of long standing which the parties had grappling with.

The interim order in this matter was granted on the 12 September 2014. The evidence is that leading up to that time Mrs Holland and Mr Ross Blenkinsop were siblings in a dysfunctional family group at loggerheads over disputes involving a family trust in which they were intricately involved. There was as I said Supreme Court litigation concerning some of these disputes.

The evidence given by the witnesses at the final order hearing showed that the relationship between some of the family members had broken down. Each of the witnesses had various complaints about other members of their family. There was hostility, distrust, disputation, name calling, exchange of obscenities and accusations of bullying, forgery and fraud to name but a few.

Exhibits 62 and 68 are examples of the 'unhealthy' e-mails being exchanged between the Blenkinsop brothers, Ross and Scott, which I will not quote verbatim here. In particular the e-mails in Exhibit 68 which are from May of 2014 demonstrate the abusive level that the conflict between the brothers had reached. In an e-mail dated 19 September 2013 (Exhibit 65) from Ross Blenkinsop to Mrs Holland, which responds to an apology from Mrs Holland for her own poor behaviour to Mr Ross Blenkinsop, there is an acknowledgement of the 'bad blood' between them.

In the course of this conflict Mr Ross Blenkinsop formed the view that Mrs Holland only ever sided with and supported the actions of her brother Scott, that she never spoke out against her brother Scott's actions to others and actively defended him. Because of this view, Mr Ross Blenkinsop began to refer to Mrs Holland in various ways including rubber stamp, greaser, scumbag and rogue director in a number of e-mails reflecting his view of her. I set out some excerpts of these in the list below:

Ex 13 11.9.12 Kim I see now the relationship between you and Scott, you are in cahoots. That (sic) why you always jump to his defence not (sic) matter how fucked up his behaviour is...Got your little gang of two hahaha

Ex 25 9.8.14 Scott and his trusty offsider Kim

Ex 38 10.9.14 I [RB] on behalf of the Trustees are declaring Scott and Kim rogue directors and until further notice. See also Ex 51.

Ex 39 17.8.13 Do Kim and Tracy as members of the Board understand the legal issues, or are they a rubber stamp and who cares if they understand?

Ex 40 2.9.13 Problem is your so used to working with the 'rubber stamp'. I think in 5 years Kim has disagreed with u once hahahahahaha

Ex 41 4.9.13 Kim You rubberstamped Lavan @ 700 per hour, u chipping in for the legal bill?

Ex 42 27.5.14 Kim, u wouldn't know a crap lawyer if they jumped up an bit u on the arse. I guess that explains the rubber stamp arrangement.

Ex 43 28.5.14 Rubber stamp can u explain the below?

Ex 44 29.5.14 Yay Rubber Stamp wants to keep Lavan

Ex 45 29.5.14 Rubber Stamp Im glad you are happy with Lavan, did Scott tell u to say that? Now there's an informed decision if ever I saw one...hahahahahaha

Ex 46 29.5.14 A rubber stamp and a greaser... you're the full service

Ex 49 4.7.14 Of course, as usual, Rubber will agree with that (sic) ever u think

Ex 51 11.9.14 I would say these two scum bags have truely (sic) earned thier (sic) Rogue Director status.

Scott and Kim are declared Rogue Directors and until thier (sic) status has been duly considered by the Boards I, as a Boards member, submit both have zero authority

14.11.14 Send a non-lawyer housewife who hasn't worked in 30 years, who wouldn't know shit from clay. Is basically your rubber stamp.

Mrs Holland and Mr Ross Blenkinsop were at this time both directors, appointers and guardians of the family trusts and trustee companies. There is therefore in my view no reason why Mrs Holland was not free to agree with, disagree with, vote, support or oppose any person or items of business as she saw fit. Indeed, for example one set of minutes dated 1 August 2014 which are part of an exhibit tendered appear to show that Mrs Holland voted in favour of several of the same motions as Mr Ross Blenkinsop.

1. In order to deal with the grounds of appeal relating to factual findings it is necessary to first identify the specific factual findings made by the Magistrate. There were three acts (or series of acts) of abuse identified by the Magistrate:

(a) the use of belittling name calling in emails (being characterised as being both objectively offensive and emotionally abusive) (par 39);

(b) unnecessarily forwarding unwanted emails containing offensive content (pars 42 - 44); and

1. Before addressing the grounds of appeal relevant to the findings made by the Magistrate, it is necessary to address two preliminary issues, each the subject of specific grounds of appeal. The first is the Magistrate's finding that the appellant in fact sent the emails relied on by the respondent. The second is which emails the respondent read, and when.

11.2 Were the emails relied on by the respondent sent by the appellant?

1. The Magistrate's finding on the issue of whether the emails relied on by the respondent were in fact sent by the appellant is in the following terms:[238]

There were 102 Exhibits tendered in the course of the final order hearing. The majority of these exhibits consisted of e-mails. Mr Blenkinsop has submitted in effect that the applicant had failed to establish that the e-mails she said were from Mr Blenkinsop were from him, or that she did receive them. The overwhelming weight of the evidence including the 'sign off' on relevant e-mails is that they were from or forwarded by Mr Blenkinsop to the applicant. They went to Mrs Holland's personal e-mail addresses or group e-mail addresses to which she was a party. Mr Blenkinsop did not deny sending those e-mails signed off in his name in his evidence and in fact acknowledged instances of this which I refer to below. I reject his oft repeated submission on this point.

1. Grounds of appeal 47 and 47a relate to this issue:
   1. The onus was on Kim to establish that emails, Kim purported were from me, were from me. Kim did not fulfil that onus. Her honour made a mistake in that I did not deny the emails were from me. As Kim did not fulfil her onus as outlined above there was no requirement on me to make that denial. I repeat all other grounds of appeal here mutatis mutandis.

47a. Her honour said it was apparent the emails were from me as a result of the 'sign off'. That is a submission that Kim should have made. It appears her honour is making submissions on Kims behalf. I found no instances where her honour made submission on my behalf. It appears her honour has descended into the arena, to bat for Kim. Procedurally that is unfair and it is also a denial of Natural Justice. I repeat all other grounds of appeal here mutatis mutandis.

1. The Magistrate's conclusion that the emails relied on by the appellant were in fact sent by the respondent is an inference. Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves'.[239] In order to draw an inference, the court must be satisfied that the circumstances raise a more probable inference in favour of what is alleged: 'where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference'.[240] The reasoning process is explained by Murphy JA in Fazio v Fazio:[241]

The drawing of an inference is 'an exercise of the ordinary powers of human reason in the light of human experience': G v H [1994] HCA 48; (1994) 181 CLR 387, 390. In Morgan v Babcock & Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163, 173, Knox CJ and Dixon J said that the matter 'must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved'; see also Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 385; Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 222 - 227. In Martin v Osborne, Evatt J said that in the 'ordered processes of logical thought ... regard must be had to every hypothesis which can compete with the hypothesis suggested by experience and knowledge of human affairs' (381). His Honour observed that in that case the course of argument 'laid bare the paucity both in number and quality of the hypotheses which might be advanced' as alternative explanations for the hypothesis suggested by experience and knowledge of human affairs in that case.

1. When giving evidence the appellant did not deny sending the emails. He did not give evidence to the effect that there was an alternate inference to the inference that it was him who sent the emails. This is a relevant consideration in the determination of whether to draw the inference that the emails were in fact sent by the appellant. On the materials before me, I cannot identify any inference competing with the one apparent from the face of each email that it was sent by the appellant (such as someone posing as the appellant or a computer system error of some kind). Nor did the appellant draw any competing inference to my attention during the course of argument in the appeal hearing. This is not a case in which the Magistrate was required to make a choice between two conflicting inferences each of equal probability.[242]
2. In my view, there was ample evidence from which the Magistrate could conclude, as an inference, that the emails relied on by the respondent were in fact sent by the appellant. To the extent that, in coming to this decision, the Magistrate relied on the evidence of the respondent as being honest, this finding was supported by the objective evidence, being the information apparent on the face of the emails. The finding was not one that was glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony.
3. The appellant has not established grounds of appeal 47 or 47a.

11.3 Which emails did the respondent read, and when?

1. Grounds of appeal 29, 34, 56 and 69 address this issue: [243]

29a. Her honour made a mistake of fact or law in concluding that any of the matters as outlined in her honours reasons pages 113 to 114 actually occurred or were relevant. For instance, her honour thought that emails sent to Kim in late 2012 were relevant but Kim admitted under oath she did not read any emails from me from 2009 to May 2014, so they are not relevant and are therefore inadmissible. It appears her honour has again made an error in favour of the Protected Persons case.

...

1. Her honour made a mistake of fact or law in admitting, and considering, evidentiary materials that Kim had not seen or considered prior to 12 September 2014.

1. Kims evidence was she never read any emails from me from 2009 to 13 May 2014. Her honour has considered and listed a number of emails in that date range. Those emails were inadmissible in evidence as they were irrelevant as by Kims own admission she never read them.

Given the result it appears her honour understood Kims submissions, but not mine. Given the result it appears her honour considered Kims submissions, but not mine. Given the result it appears her honour ignored my submission but not Kims. Ultimately Kim was heard I was not, as outlined above it appears that is both a denial of Natural Justice and Procedural Fairness.

There are many other instances, too many to list, where it appears her honour has understood Kims submissions, but not mine, considered Kims submissions, but not mine, ignored my submission but not Kims. It appears there is ultimately many instances where Kim was heard and I was not, and thus many instances (too many to list them all here) where it appears I was denied Natural Justice and Procedural Fairness, As a result of the above instance, collectively, it appears her honour may have been biased.

1. Kim said under oath she did not read email from me from 2009 to 13 May 2014, so a lot of the evidence her honour has referred to is inadmissible. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. The appellant elaborated on these grounds the Appellant's Submissions:[244]

Kim said she did not read emails from me between 2009 and July 2014, that material was irrelevant as Kim had not seen it prior to the alleged cause of action arising. See my submission in the lower Court.

1. However, the respondent did not give evidence to the effect that she did not read any emails between 2012 and 2014. She did write the following in an email dated 13 July 2014 to the independent chair appointed to the family companies: [245]

I have for a number of years made a rule in my email account that all emails from Ross go straight to a folder and not into my inbox ... as Ross uses various email addresses and sends copious amounts of emails ... sometimes I get emails from him (if the rule is not applied to that email address) or if someone else comments on emails that he has sent. So unless I go to the folder where his emails are I don't read them.

I have five children, four grandchildren (seven, if you count the three children that one of my sons and his wife are the guardian of) I catch up with all of my children at least and often more than once a week. I am one of Jehovah's Witnesses so I have a ministry, meetings, study to do, I volunteer many hours each week to helping home educators and am the administrator of a Western Australian home schooling group and am the only life member of Home Based Learning Network. My daughter is getting married later this year and I am very busy helping her to prepare for her wedding, which she is having in our garden.

Therefore, I selectively read emails; I try to filter what I think could be important. So I may miss a few - if not many of the emails sent.

1. The respondent also gave evidence that she did read the emails in the folder from time to time:[246]

HER HONOUR: Is that - that's correct? No. I did direct them into a separate folder but I have written somewhere that unless - if someone replied to one of his emails - so when they came in - I actually wrote that in that letter I read to you that I sent to Mr Zilko yesterday that if some - because he used a variety of email addresses so if I hadn't actually put - made a rule for that email address then those ones would come into my inbox. But then if somebody commented on his emails so, say, Scott or Tracey or mum or whoever, if someone commented on his email then it would come into my inbox through them so while I had directed them away from my - I made a rule where they went into a separate file and then when I felt like it I could sit down and look at them, you know, rather than just having them coming into your inbox all day, they could go into this separate file and then when I felt up to it I could sit down and have a peruse of them. But if somebody replied to an email that he sent then they would come into my inbox through that person as an email from that person.

The respondent continued to give evidence to this effect over the following few minutes.[247]

1. Accordingly, there was evidence from which the Magistrate could conclude that the respondent read the emails the subject of her application. The appellant has not satisfied me that this finding of the Magistrate was in error on the basis that this finding was glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony.
2. The appellant has not established grounds of appeal 29, 34, 56 and 69.

11.4 Did the appellant commit an act of abuse in the language used in his emails?

1. The Magistrate's specific finding was in the following terms:[248]

It is I consider objectively offensive for Mr Blenkinsop to use this type of belittling name calling in these circumstances. It is hurtful and disparaging. It was ongoing behaviour and it falls within the definition of family and domestic violence as it is defined in s 6(1)(d). I also find that it is emotionally abusive. It was improper verbal behaviour that negatively impacted upon Mrs Holland's emotional wellbeing.

1. A number of grounds of appeal address this factual finding:
   1. Her honour made a mistake of fact or law in concluding that rubber stamp and rogue director were offensive terms or offensive to the level that required a VRO.

1. Her honour made a mistake of fact or law in considering Kim had been abused when she voluntarily elected to read emails or invite me over or bought the use of terms such as rubber stamp upon herself by her own conduct. I never concede that Kim was ever abused.

My argument is Kims behaviour is analogous to hitting a victim with a baseball bat and then complaining, and getting a VRO, because the victim called you a scumbag, for hitting them with a baseball bat. Its preposterous and ridiculous. It appears her honour made an error of fact or law in that she did not understand my legal arguments. It appears this occurred on more than one occasion. As a result I was not heard and was not afforded Natural Justice. It appears her honour understood all of Kims submissions, so she was afforded Natural Justice. As Kim as afforded Natural Justice and I was not that is not Procedurally Fair. It appears her honour has again made an error in favour of the Protected Persons case.

1. Her honour made an error of law or fact in considering that terms used by me, such as rubber stamp, were used as nouns, when they were in fact used as verbs, and as such cannot be considered name calling. It appears her honour paid very little attention to my submissions, did not consider my submission or superficially considered my submission and evidence. It appears her honour considered Kims submissions. As a result I was not heard and was denied Natural Justice. Her honour made numerous other errors, to numerous to mention, again supporting my proposition that I was not heard. I repeat all other grounds of appeal here mutatis mutandis.

Given the outcome of the hearing it appears Kim was heard, although her falsehoods were not picked up. So Kim was afforded Natural Justice whilst I was not, which appears to be procedurally unfair. It appears I was again denied procedural fairness.

1. 65. It appears her honour has made yet another error in favour of Kims case in finding that the terms 'rubber stamp' and 'rogue director' are offensive. It appears her honour has failed to appreciate what alternative terminology was open to me to use? If I had used any other terminology at the end of the day I was allegedly calling Kim a rubber stamp and a rogue director. If I, on behalf of the trusts, used other terminology Kim could argue I was abusing her by implicitly calling her names. I do not concede those terms are in any way abusive. Her honour made an error as she assumed it was me who was calling Kim a rubber stamp or a rogue director, when in fact it was the trustee who was calling her those things. I am simply the mouthpiece of the trustee. I repeat all other grounds of appeal here mutatis mutandis.
2. It appears her honour has made yet another error in favour of Kims case in finding that the terms 'rubber stamp' and 'rogue director' are offensive to the extent that would require such a blunt force instrument as a VRO. As pointed out to her honour Rogue Director is a legitimate term and rubber stamp, a term from the dictionary, characterises someone who automatically authorises another's actions repeatedly, and is cited in the dictionary. Both terms which accurately describe Kims behaviour over an extended period of time.
3. Again the appellant elaborates on this issue in the Appellant's Submissions:[249]

Because of Kims conduct in the trusts such as bringing the false SAT claim, the false bully claim, denying Mum money, the false VRO, not paying legal fees when due and payable, the Police charges based on a bogus VRO, not complying with the settlement deed, Kim making multiple threats to me as a company director to sign documents, not providing company documents, the list just went on and on and on (I only provided a sample) it was appropriate for me and the trust to label her a Rogue Director and a rubber stamp to Scotts actions.

1. In my view, it is of no consequence whether terms like 'rubber stamp' are used as nouns or verbs. What is relevant is the impact of the statements in the context in which the respondent received them.
2. Once the Magistrate had made a finding that the relevant emails were in fact sent by the appellant and received by the respondent, the issue became one of whether it was objectively offensive for the appellant to use the language identified in the circumstances. In my view, there was ample evidence, on the face of the emails, from which the Magistrate was entitled to come to this conclusion. There was also ample evidence from which the Magistrate was entitled to conclude that the sending of the emails was emotionally abusive towards the respondent for the appellant to use the language identified in the circumstances. As I have already found, the Magistrate correctly defined the term 'emotional abuse' (above [101]). The appellant has not established that these findings were glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony. In each case, the finding of fact meant that there was an act of family and domestic violence within ROA s 6(1)(d).
3. I again observe that the fact that the Magistrate did not agree with the appellant does mean that the Magistrate did not consider the appellant's submissions and thereby denied him procedural fairness.
4. The appellant has not established grounds of appeal 32, 35, 53, 65 and 66.
5. At this point it is convenient to deal with ground of appeal 28.
   1. Her honour made a mistake of fact or law in concluding that matters complained of that occurred prior to 2013 were relevant to a VRO in 2014. They were too old to be relevant and should not have been admissible as evidence. It appears her honour has again made an error in favour of the Protected Persons case.
6. Evidence is relevant if it could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.[250] The fact in issue was whether an act of abuse had occurred, specifically, whether the emails were offensive or emotionally abusive. As set out above [254], the Magistrate identified a series of emails from September 2012 to November 2014. In the context of the specific facts in issue in the present case, emails over this period could rationally effect the assessment of the probability of the existence of a fact, and so were clearly relevant.
7. The Magistrate was clearly conscious of the impact of time on the relevance of the evidence. Her Honour declined to view an incident in 2008, some six years before the respondent applied for the Interim VRO, as being an act of family and domestic violence.[251]
8. The appellant has not established that the Magistrate erred in law by admitting evidence that was not relevant as set out in ground of appeal 28.

11.5 Did the appellant unnecessarily forward unwanted emails containing offensive content?

1. The Magistrate's findings are as follows:[252]

It is also clear, and I find as a fact that Mr Ross Blenkinsop has forwarded to Mrs Holland e-mails principally between himself and his brother Scott which contain profanities and intemperate language and raising issues of the type I have referred to above. I find that this was so even after Mrs Holland had asked him not to send her such e-mails. Some of these e-mails, but far from all of them, contain swearing from both Ross and Scott. Mr Blenkinsop finally acknowledged in cross examination that he had kept sending Mrs Holland these e-mails after she had requested him to stop. He ignored her. He said he would only have stopped if she had said that she was going to the police.

I note that Mr Ross Blenkinsop's partner Suzanne Ross expressed the view that she didn't like the e-mails passing between Ross and Scott, that it was unhealthy and she did not condone the behaviour. These e-mails, and examples were tendered by both parties, are objectively offensive. I accept that Ross Blenkinsop forwarded these to Mrs Holland, originally by using the group e-mail address. Some also went directly to her [Note the e-mails of May 2014 and Exhibits 68, 23 - 24, 28 - 30, 32 - 33, 35 - 41, 43 and 45 -50]. I accept that in a large number of cases the offensive content of these e-mails were not specifically directed at Mrs Holland.

Considered objectively it would be offensive to receive many of these e-mails having asked that they not be sent. I find that the practice of unnecessarily forwarding unwanted e-mails containing offensive content is emotionally abusive and is an act of family and domestic violence as that term is defined.

1. A number of grounds of appeal challenge this finding:
   1. The Magistrate made an error of fact and/or law in determining that the Protected Person asked me to stop swearing when the evidence on balance supported no such finding.

1. Kim never asked me to not send her emails with profanity. What Kim actually said is if I sent such emails she would not read them or delete them. I was happy for her to delete or not read them. Clearly Kim envisaged that I would continue. Kim waived that requirement as she never made the same request to other family members, who sent far worse profanity to Kim. Kim singled me out for special attention as part of her and Scott persecution of a whistleblower. It appears her honour has made an error of fact or law.

It appears her honour accepts all of Kims submission but ignores in totality mine. I note her honour said my submissions were repetitive and prolix. I note her honour fails to mention at the time Kim was the secretary and so all documentation was to go thru her. I repeat all other grounds of appeal here mutatis mutandis.

1. It appears her honour has made yet another error in that is was unnecessary to send these emails to Kim. It was necessary as Kim was the company secretary and the emails related to company business, as outlined in my submissions. Again it appears this error favours Kims case and not mine. I cannot recall her honour making a single error that favoured my case, so it appears her honour may be biased. I note during the trial, right from the outset, her honour was quite abrupt and short towards me in her tone and manner but appeared quite and sympathetic and consoling towards Kim, so it appears her honour may be biased. This really only comes through in the transcript audio so I cannot give examples here. I repeat all other grounds of appeal here mutatis mutandis.
2. The appellant elaborated on ground 5 in the Appellant's Submissions:[253]

Her honour also made an error in that the swearing was offensive or that Kim found it offensive or a reasonable person would find it offensive, or a reasonable person would find it offensive to the point that required a VRO or that is was relevant as so old.

See exhibits 1 - 4. Kim did not ask me to stop swearing, What she did in fact say is if I swore in emails she would not read the email or delete it so she fully anticipated that I would continue to swear.

Page 27 the writing in the email attachment where Kim allegedly as me to not swear is so small she cant read it. See my submission in the lower Court regarding swearing.

Also the print was so tiny Kim could not read it in the witness stand. Kim could not realistically expect me to read that print (see my submissions on swearing) Further I was receiving so many emails Kim could not realistically expect me to read the attachment to her email, much less the tiny print.

As outlined in my submission if Kim was adamant that I didn't swear she should have sent me an email with huge print. She did not.

Scott swore way worse than I did Kim did nothing. Realistically Kim did not find swearing offensive if she did she would have said something to Scott, she did not.

None of the swearing is directed at Kim. Conveniently she did not disclose any of Scott's swearing.

Kim refers to mild swearing no directed at anyone, allegedly by me, in 2009. This material is inadmissible as it is so old, it is irrelevant to a VRO in 2014. It is irrelevant as it is not directed at anyone. Rude bastard was directed at Scott but as the entirety of the evidence demonstrates Scott is a rude bastard so it is simply a factual account, not name calling. In any case it is not offensive enough to warrant the sledge hammer of a VRO.

As can be seen from the exhibits, Scott regularly swore much worse that I, around Kim, She never complained abut his swearing. How am I meant to know she allegedly finds my swearing emotionally abusive, but not Scotts.

Base on the swearing evidence as a whole I fail to see how her honour could find that any of the swearing was even relevant. Its too old, its not directed at Kim, Scott swore twice as bad and more often than I, Kim didn't even flinch.

1. The appellant appears to misconstrue the respondent's position and the Magistrate's finding. The respondent does not say that it was not necessary for the appellant to send her any emails; she says it was not necessary for the appellant to send her emails containing offensive content. The Magistrate's finding reflects this distinction.
2. There are two specific findings challenged:

(a) that the respondent asked the appellant not to send emails containing profanity to her; and

(b) that the appellant acknowledged in cross examination that he had kept sending Mrs Holland these e-mails after she had requested him to stop.

1. The evidence that the respondent asked the appellant not to send emails containing profanity to her is found in an email from her to the appellant dated 18 February 2009.[254] This email contains a comment to a passage containing an expletive:

Do not send e-mail with this type of language to my home, any emails with this type of language will be deleted and not read.

The respondent gave evidence about this email, construing it as a request not to send any emails with that type of language in it.[255]

1. The portion of the appellant's cross examination in which he acknowledged that that he had kept sending Mrs Holland these e-mails after she had requested him to stop is:[256]

HOLLAND, MS: You say that if I had asked you to stop emailing me that you would have just stopped emailing? No, I didn't say that. I said that wouldn't have worked because you were a director. I had to keep - what I actually said is you had have said to me, 'Stop emailing me or I'll call the police,' then I would have stopped emailing you altogether because I actually acknowledged that you told me on a number of occasions I think - I don't know if you used the words, 'Stop emailing me.' It might have been. I mean, I'm, just working from memory. I know you certainly said, 'I'm blocking your emails.' I think you once said, 'Can you not put my email address in '

HER HONOUR: You said, 'I wouldn't have sent another one. She - she did say it. I just ignored her'? Yes, but thinking back now, thinking about it in more detail now that she has brought it up under cross-examination, I think she said to me once, 'Don't put my address in the address bar until you want to talk about trust business.' And then on other occasions she said, you know, 'I'm sick of your stupid emails. I'm blocking your email address.' But in the end - and I had a bit of a think about it and I said - and then I said, you know, 'If you had have sent me an email saying, 'Don't email me ever again,' I would have agreed,' but I said, 'Well, really that wouldn't work because you're - you're a director. I would have probably felt compelled to email you.' But certainly - and then I said after that, I said, 'But if you had have sent me an email that said, 'Don't email me again or I'm calling the police,' I would have never emailed you ever again for the rest of your life.'

So it's a bit long winded, but your evidence is that she had to tell you don't email or she would call the police.

MS HOLLAND: Unless I called the police? Yes, unless. If you made some sort of criminal threat to me not to email you, I wouldn't have, but I felt compelled to email you because, you know, you're a - you're a - you know, you have to weigh up your duties as a director and keeping the other director abreast of what's going on. You have to weigh up that against you've got a director who's saying to you, you know, 'Don't email me,' or words to that effect or, you know, 'Don't put my email address in the address bar,' I think was the words you used.

...

Okay. Here's a second email that he sent to my lawyer.

THE WITNESS: So this is really about running up legal costs. That's another one about running - that's another one trying

HOLLAND, MS: Well - well? to imply that I'm running up legal costs.

Well you said ? What's that got to do with credibility?

that if I - if I asked you to stop emailing me - if I called the police, you would stop emailing. Now, I've got a interim VRO on you, and here you are sending emails ? Well, you're still a director.

Well, you said you would stop? And I said I would stop if you - if you said I will contact the police, I will stop. You never said that. You're still a director at - you're still a director of the company. You haven't resigned. You went off and - instead of resigning or appointing an alternate director which you could have done quite easily, you could have appointed anyone under the sun

So now? as an alternate director. You're still a director of the company. I still have to email you. So you chose to remain a director of the company. So by doing so, you choose to - to still receive emails about company business. That is what being a director is about.

HER HONOUR: Think he

THE WITNESS: If you didn't want to receive emails you should have - you could have changed your email address, you could have appointed an alternate director

1. As to the impact of the appellant's conduct, the following passage from the cross-examination of the respondent is illustrative of this:[257]

R. BLENKINSOP, MR: Okay. Well, no, I'm going to stick with my original question. My original question, if you go to paragraph 8 up from the bottom, it says - you're saying to the magistrate - this is - to the two JPs, you're saying:

He sends copious amounts of emails just attacking us, undermining us, sabotaging, threatening.

By us, I mean - I assume you mean both you and Scott; is that what 'us' means, in that particular context? Well, it meant me.

You.

HER HONOUR: So us - me? Well, generally the whole Blenkinsop - I mean, my sisters are also fed up with - with the amounts of emails that have been sent.

R. BLENKINSOP, MR: Which sister would that be? But, it's me. I'm getting the VRO. It's - I'm sick to death of the whole thing.

So now - are you now changing your case, because your original case was ? No. No, I'm not.

- I was attacking Scott? I think I sort of produced enough emails, and that's what Magistrate Hall's intention was, where I showed that in one morning we can receive, like, a whole lot of emails - you know, a whole lot of emails calling me rubber - you know, and if I went all through the whole 10,000, I would probably find a lot more, but I gave - I gave enough to show that I get attacked through emails by you. I find it offensive, it's emotional abuse, it's tiring, it's exhausting, and I don't - basically I do not want to receive another email from you as long as I live, and you will not stop. You will not stop sending emails that are just nonsense.

1. It is evident from the evidence which I have referred to that there was an ample basis for the conclusions of fact identified in [280]. Having reviewed the exhibits relied on by the Magistrate, there is ample basis for the conclusion that they contained offensive material.
2. The appellant has not established that the Magistrate's findings relating to the appellant unnecessarily forwarding unwanted emails containing offensive content were glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony.
3. The appellant has not established grounds of appeal 5, 59 and 60.

11.6 Was there an act of abuse in the October 2012 telephone call?

1. The relevant finding by the Magistrate is as follows:[258]

Mrs Holland also complained of the phone call she received on the 10 October 2012 when Mr Blenkinsop left a message on Ms Holland's answering machine [Paragraph 15 of her evidence at Annexure A]. Her e-mail dated the 10 October 2012 to Mr Blenkinsop [Exhibit 16] stated:

You left a message on my phone saying you need to have a chat with me. You further stated that if I don't return your call you will come to my home to have said chat.

The meeting finished on Friday, if you wish to chat to me about anything then raise it at the next meeting. Please do not visit my home as I do not wish to continue the meeting.

The email then ended with a cut and paste of the provisions of ss 69, 70A and 70B of the Criminal Code dealing with 'Forcibly Entering Land' and 'Trespass', but without more being written.

Given Mrs Holland's oral evidence which I do not disbelieve, I accept that this event occurred as she said it did and that it caused her apprehension which is intimidatory conduct as it is defined. Mr Blenkinsop's evidence did not directly contradict Mrs Holland's evidence that there had been an incident but he stated that her evidence was a fabrication [Paragraph 22 of his evidence at Annexure B]. I note that Ms Tracey Jakovich's evidence was that she had experienced a similar incident in 2010 which caused her to be scared [Paragraph 20 of Ms Jakovich's evidence at Annexure D]. I find that the call was an act of family and domestic violence as it is defined in the ROA but I again note that this incident took place roughly 2 years before the application for the VRO was made.

1. The appellant's challenge is in grounds 25 and 82:
   1. Her honour made an error of fact or law in concluding that Kim was intimidated as outlined in section 338(d) of the Criminal Code. It appears her honour has again made an error in favour of the Protected Persons case.

1. 10 October 2012 phone call. Kim lead no evidence other than 1 email to support her claim even though it would have been easy to produce that evidence such as the message , police report, corroborating testimony etc etc. I denied it and produced documentary evidence, all the emails from that time, refuting Kims claims, also pointed out in my submissions. It appears her honour was mistaken as the phone call never took place or the characterisation of the phone call was fabricated by Kim. The court prevented me from proving this point by not allowing me access to the material required to prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. There was no obligation on the respondent to lead other evidence to support her evidence relating to the 10 October 2012 telephone conversation. There is no requirement for there to be corroboration before the court is able to rely on the evidence of an applicant for a restraining order.
3. The appellant's evidence as to the October 2012 telephone call begins with an email from her to the appellant dated 10 October 2012 which relevantly provides:[259]

Ross,

You left a message on my phone saying that you need to chat with me. You further stated that if I don't return your call you will come to my home to have said chat.

The meeting finished on Friday, if you wish to chat to me about anything, then raise it at the next meeting. Please do not visit my home as I do not wish to continue the meeting.

Regards,

Kim

As the Magistrate observed, the email then went on to quote Criminal Code Act 1913 (WA) s 69 (forcibly entering land), 70A (trespass) and s 70B (trespassers may be asked for name and address).

1. The appellant then gives the following evidence, the questions being asked by the Magistrate:[260]

Right. And that was sent to Mr Ross Blenkinsop, was it? On 10 October. On this day, I was babysitting my granddaughter, who was about 18 months old at the time, I think. I just can't remember. And mum was working. And he rang my house and he left a message on there, saying to me, you know, 'We need to have a chat.' It was - and he said, 'And if you don't pick up your phone or call me back, I'm, coming over to your place.'

Just stop there. Please continue? He said, 'I'm coming over to your place to have said chat.' And I actually kept that - a recording of that for a long time because it was just so aggressive. And because I was at home with my little granddaughter. I was running around locking all the doors and pulling across all the curtains because I was so scared that he might come over to my place, because if little kids are around he just doesn't care. You know, he will just start yelling and screaming and carrying on. I thought I just don't want my granddaughter to be there if he came, and I was, like 'Well, I don't know if he's coming or when he's coming or what.'

Anyway, I phoned the police and told them that I was, you know, scared of him coming over, and they just said, you know, that he's not allowed onto my property if I don't, you know, want him on there and just to call them. So I - I went to the Criminal Code thing and I got this - I put these sections of the Criminal Code Act into this email and I sent the email to everybody, just so that they all knew that, you know, this - that he had sent this message to me, and it was also saying to him, 'You step foot onto my property and I will be calling the police. You have no right to come onto my land and you're not welcome and I don't want you there.' I don't want him near my grandchildren.

All right. And that is the email that you sent him? Yes. I sent him that email saying, 'Don't call me. Don't come near me. Just leave me alone.'

1. The respondent also gave evidence about this telephone call, after having been taken to the document in [294]:[261]

And yet your evidence is that it's a complete fabrication? Well, it doesn't say anywhere in there that you called the police, that you were in a mad - you know, that the police - that the police came out to your house, that they - you know, you pulled all your windows down. I can't remember your exact evidence but, you know, your evidence was that you flew into a mad panic and you called the police. And it says there that I left a message on your machine. I didn't actually chat with you personally. I left a message on your machine. But you didn't discuss with anybody how you felt scared or threatened or that you called the police. Pulled all - you know, pulled all your curtains - all your windows down. That sort of thing. That's what I meant by that statement, is that you did not discuss with any of the other members of the family the fact that, you know, you felt threatened to such an extent that you called the police, assuming you did call the police. I mean, we never saw any police record or anything.

So is it a complete fabrication? I think the bit in your evidence - to clarify it, the bit in your evidence where you reckon that you called the police, flew into an absolute flap. That, you know, you were horrendously scared and threatened and everything like that, I think all of that's just complete and utterly made up. I mean, where's your police record? If you called the police where's the police record? Why haven't you called the police officer as a witness? Why didn't you discuss that with any of the members of your family? I mean, this email just arrives out of the blue.

1. The Magistrate was faced with a conflict in the evidence. The objective evidence in the form of the email of 10 October 2012 (exhibit 16) lends some support to the respondent's version of events. The finding of the Magistrate to prefer the evidence of the respondent over that of the appellant was one open on the evidence. The appellant has not established that this finding was glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony.
2. Likewise with the finding that the effect of the telephone conversation on the respondent was to cause her apprehension which amounted to intimidatory conduct. The finding was one open on the evidence. The appellant has not established that this finding was glaringly improbable, contrary to a compelling inference or demonstrated to be wrong by incontrovertible facts or uncontested testimony.
3. The appellant has not established grounds of appeal 25 and 82.

11.7 Acts which did not constitute acts of family and domestic violence

1. There were the three acts which the Magistrate was not satisfied constituted acts of family and domestic violence:

(a) the appellant sending the respondent repeated requests for a copy of a set of minutes (par 40);

(b) the appellant upsetting the respondent in a facebook conversation (par 40); and

(c) an attendance by the appellant at the respondent's home in 2008 (par 41).

1. Grounds of appeal 70 and 712 appear to relate to the issue in [300(a)]:
   1. The 'not receiving minutes' alleged harassment was all pure fabrication as was established by the documentary evidence. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
   2. Kim lead no evidence that I was abusing her in her role as secretary. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. I do not need to deal with these grounds of appeal as they do not relate to a factual finding relied on by the Magistrate in coming to the decision to grant the Final VRO.

11.8 Challenges to the other evidence of the respondent

1. In a number of other grounds of appeal the appellant challenges evidence of the respondent which the Magistrate did not specifically rely on.
2. Grounds of appeal 79 to 81 challenge the evidence of the respondent, summarised by the Magistrate:[262]
   1. Emails where coming every single day. As pointed out in my submissions Kim lead no evidence to support that proposition even though it would have been easy to produce that evidence. I denied it and produced documentary evidence, all the emails from that time, refuting Kims claims, also pointed out in my submissions. Her honour made a mistake of fact as there were not emails every day, as my documentary evidence established. Is it possible her honour was biased? The court prevented me from proving this point as it refused me access to Kims emails. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
   2. Emails where coming every single day all abusive. As pointed out in my submissions Kim lead no evidence to support that proposition even though it would have been easy to produce that evidence. I denied it and produced documentary evidence, all the emails from that time, refuting Kims claims, also pointed out in my submissions. Her honour made a mistake of fact as there were not email every day and very few were abusive, as my documentary evidence established. Is it possible her honour was biased? It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
   3. Barrage of emails. As pointed out in my submissions Kim lead no evidence to support that proposition even though it would have been easy to produce that evidence. I denied it and produced documentary evidence, all the emails from that time, refuting Kims claims, also pointed out in my submissions. It appears her honour was mistaken as there were not abusive emails every day, as my documentary evidence established. Is it possible her honour was biased? The court prevented me from proving this point by not allowing me access to Kims emails. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
3. It is not necessary for me to rule on these grounds of appeal. This is because they do not specifically go to the findings of fact made by the Magistrate. The Magistrate did not specifically rely on the evidence challenged by the appellant in these grounds of appeal.
4. Likewise, grounds of appeal 55, 72, 75, 76, 85, 88 and 90 also respond to various aspects of the precis of the evidence of the respondent set out in Annexure A to the Magistrate's Reasons:
   1. My submission was the Kim never supported any resolutions put by me. My submission was not that Kim never supported resolutions that I also supported, that would have been put by someone other than me. It appears her honour has not understood or has not considered my submissions.

Given the result it appears her honour understood Kims submissions, but not mine. Given the result it appears her honour considered Kims submissions, but not mine. Kim was heard I was not, as outlined above it appears that is both a denial of Natural Justice and Procedural Fairness and possibly bias.

1. The email was not sent at 1:15 am and Kim did not establish that it was in fact sent at that time. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
2. I refer to page 30 of her honour reasons. This was a single day where I allegedly swore repeatedly. It was in 2012. By her own admission Kim was not reading her emails at this time, so its inadmissible as it is irrelevant. The emails were to do with trust business. Kim was secretary at the time, she volunteered to be the secretary, she was free to resign at any time. She allegedly told me in 2009 that if I sent email to here with swearing she would not read them and delete them. By her own admission she did not read these emails as they contain swearing. As they were never read by Kim they are inadmissible. In any case Kim later waived her request through her conduct. All this was pointed out to her honour in my prolix submissions. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.
3. Her hour is also mixing up the dates of the emails and they are not in chronological order in her reasons. It appears her honour has not considered the emails in chronological order which may account for her unusual view of the matter.

1. Page 35 and 36 These emails simply demonstrate Kim attacking me. I confronted Scott about his drinking problem, concerned for my nephews (Scotts kids) and Kim attacks me saying I am not altruistic, sickening, repulsive and it is 'emotional violence' and accusing me of molesting children. Scott has a drinking problem what are you suppose to do?

It appears her honour has made the error of thinking these email were attacking either Kim or Scott. Just days before this Scott screamed at my mother that she was a fucking mole, while Kim sat by smiling thinking that was funny. I note her honour seems to have missed that piece of evidence. So Scott is ringing all of us constantly drunk. He screamed at Mum, who is 80, that she is a fucking mole in a meeting that we all attended. Days later I confront Scott about his drinking and apparently Im the emotionally violent one.

1. Paragraph 32 'emails nonsense'. As outlined in my submission and the bulk of my evidence my emails where primarily about trust business. Again Kim was proven to not be a credible witness.

If her honour has relied on the material in forming her decision then it appears she is mistaken as all of this evidence was discredited in one way or another in my evidence as then as explained in my submissions, which dealt in details with each piece of evidence exhaustively. The court prevented me from proving this point by not allowing me access to the material I required t prove it. It appears her honour erred. I repeat all other grounds of appeal here mutatis mutandis.

1. I note in a number of emails Kim said that I pull 'stunts' I was simply using Kims own terminology. Im sure those emails for part of the evidence and her honour has access to those emails. It appears her honour has one standard for Kim and another for me.
2. Again, these grounds of appeal challenge aspects of the evidence of the respondent which the Magistrate did not specifically rely on coming to the Magistrate's Decision. Accordingly, it is not necessary for me to rule on them.

12. Grounds involving factual findings in relation to future conduct and the duration of the order

1. ROA s 11A required the respondent to prove either that:

(a) the appellant, as the VRO respondent, 'is likely again to commit such an act against that person'; or

(b) the respondent had 'reasonable fears that the [appellant] will commit an act of abuse against' her.

1. The Magistrate found both limbs satisfied:[263]

In summary I find that Mrs Holland has established that Mr Ross Blenkinsop has committed some but not all of the acts of family and domestic violence which she has attributed to him. However viewed in context of what appears to be quite a dysfunctional relationship they are matters which whilst significant to Mrs Holland, are towards the lower and less serious end of such conduct and do not involve any physical violence or threats of physical violence. I specifically find given that some acts of family and domestic violence have been made out that Mrs Holland's application is not frivolous or vexatious or an abuse of process.

I am persuaded on the balance of probabilities that at the time of the granting of the interim order in September 2014, Mrs Holland reasonably feared that such acts were likely to occur again; that if Mr Blenkinsop was unrestrained he was likely to act in a similar manner towards her in future as required by s11A. The acts had been ongoing up until just before the application was heard as shown from the table above. As I have mentioned above I consider that the tenor of Mr Blenkinsop's evidence on this issue, particularly in relation to the sending of the e-mails was that he would not have desisted of his own accord [Transcript 4/11/16 pp393-394].

1. I have quoted the transcript reference referred to by the Magistrate above [286].
2. The Magistrate specifically questioned the respondent about the issue of future interaction at the conclusion of her evidence in chief:[264]

HER HONOUR: ... Now, Mr - before Mr Blenkinsop cross-examines you, which will go through me, I just have a couple of questions arising from your evidence which I will put, and he can cross-examine on the entirety. And it really only was, when I looked - reviewed my notes of evidence last night. I just wanted to ask you. So you told me the results of the Supreme Court action, that that's finished? Yes.

And you said you were no longer a director of the trust? Actually, I re-read the judgment last night, which is published on the Supreme Court - I am still a director, but not an active director. We have no - the directors have no role to play any longer, but we are all still directors.

Okay. So you're a director of the trust. In respect to - now, previously, you were secretary of, I understand, of Blenkinsop Nominees Pty Ltd? Yes, and Silverglade.

And are you still a secretary of either of those companies? No.

So you're no longer a secretary? No.

Of Blenkinsop Nominees? Yes, and Silverglade.

R. BLENKINSOP, MR: They are no longer trusts either, your Honour.

HER HONOUR: Okay. All right.

R. BLENKINSOP, MR: They are just basically shell companies.

HER HONOUR: Yes. All right, so the last question is, what is the extent, do you say, of any future contact you might have to have with Mr Ross Blenkinsop ? I don't

because of the legal ? I don't have to have any contact with him at all.

Okay? And he doesn't need to have any with me.

So, I mean, obligatory through your legal processes? There's - even when I applied for the VRO because we were having meetings I - because when I phoned the police I told them that we were in court proceedings and they just said, well, it's quite simple. He can go through a lawyer at the meetings or he can contact the secretary and the secretary can then.

Yes. Leaving that aside, though ? Yes. There's no need for him to contact me in any way, shape or form.

Bu your legal obligations ? Yes. No.

as guardian and appointor ? Yes. No, it

don't require contact with Mr Blenkinsop? No, it can all go through the independent trustee.

1. It is also relevant to refer to comment by Her Honour as part of the summary of the respondent's evidence (which I have quoted earlier but repeat for ease of reference):[265]

As one enquiry the Court is required to make is whether Mr Blenkinsop is likely to commit such an act again I set out that at one point during his cross examination of Mrs Holland on 7 November 2016 Mr Blenkinsop made a statement which I consider was offensive in the Court stating:

'I just want to establish that she is a woman of considerable intelligence, considerable life experience, just in case, you know, she tried to pull the same stunt and pretend that she's ignorant.'

1. It is also instructive to refer to the Magistrate's findings as to the duration of the order:[266]

There was no period specified in the interim order made on the 14 September 2014. Subject to the different provisions as to telephone orders, an interim order remains in force until a final order in respect of the matter comes into force [ROA s 16(4)(a)]. A final order made at a final order hearing remains in force for the period specified in the order or if no period is specified for 2 years from when the final order came into force [ROA s 16(5)(a)(ii)].

This matter is unusual in that the order restraining Mr Blenkinsop has now been in place on an interim basis for some 3 years well over the 2 years it would have been in place had there been no objection [ROA s 16(5)(c) and s32]. The relationship between these two people has been a dysfunctional one for some time. However I consider that Mr Blenkinsop in particular, being a legal practitioner, can now be expected after all that has occurred, not to behave in an offensive, intimidating or emotionally abuse manner towards Mrs Holland going into the future. Further, Mrs Holland clearly stated that there is no need for any ongoing contact between them in the future.

Given the nature of the acts of abuse established I consider that the restraints upon Mr Blenkinsop have been in place for long enough. It is not appropriate that the final restraining order endure any longer and I order that it should expire at midnight on the day of delivery of this decision.

1. The respondent challenges this conclusion:
   1. Her honour made an error of fact or law in considering irrelevant material. For instance the IVRO was granted on 12 September 2014. The same day I advised all my family that no email from me were ever to be sent to Kim. I sent an email to only my brother in early 2015 where I said Kim wouldn't know shit from clay. Her honour considered that email as evidence of ongoing abuse. I have no control over what my brother does with private conversations, that he knows are intended to be private, between just me and my brother. One the conversation is irrelevant and as such is inadmissible as evidence as it was a private conversation. Secondly it is not evidence of an intention to harass Kim in an ongoing manner. It appears her honour has again made an error in favour of the Protected Persons case.
   2. Kim under oath said there was absolutely no reason for me to contact her after 12 September 2014. I did not contact her after 12 September 2014. Despite this her honour concluded that there was a possibly of ongoing abuse. It appears her honour made an error of fact or law in arriving at this conclusion. It appears her honour has again made an error in favour of the Protected Persons case.
2. The appellant elaborated in the Appellant's Submissions:[267]

For instance the IVRO was granted on 12 September 2014. That same day I advised all my family that no email from me were ever to be sent to Kim.

I sent an email to only my brother in early 2015 where I said Kim wouldn't know shit from clay. Her honour considered that email as evidence of ongoing abuse. The email was not to Kim, and I had told Scott to never forward my email to Kim. I have no control over what my brother does with private conversations, that he knows are intended to be private, between just me and my brother. One the conversation is irrelevant and as such is inadmissible as evidence as it was a private conversation.

Secondly it is not evidence of an intention to harass Kim in an ongoing manner.

Third it is inadmissible as Scott was not in Court. It appears her honour has again made an error in favour of the Protected Persons case.

1. The approach which the court should take in assessing the probability of the repetition of an act of abuse was considered by EM Heenan J in Myles v Carroll.[268] His Honour observed: [269]

It is to be appreciated that before a restraining order can be granted the court must be satisfied, to the requisite degree on the balance of probabilities, that if it is not granted the respondent would act in a particular manner. Accordingly, the court is required to reach a standard of persuasion about the reliability of a future prognostication. It is to the probability of repetition of violent, offensive or intimidatory conduct occurring in the future that attention must be directed, not to an analysis of the significance or effect of some conduct, isolated or continuing, which has taken place in the past. What has occurred in the past is, unquestionably, relevant and material but only to the degree to which it justifies the formation of a conclusion about the likelihood of future occurrence of behaviour which the legislation prohibits. This is not so much an exercise in determining the proof of past events but of concluding what, if any, significance can be attached to them when considering the probability of future conduct occurring.

1. It appears that, with one exception (being the email in early 2015), the appellant did not contact the respondent after the date on which the Interim VRO was made. No doubt this was because the appellant was abiding by the terms of this order. Given the lapse of time between the grant of the Interim VRO and the delivery of reasons on whether to grant a final violence restraining order, her Honour found that there was no need for there to be a final restraining order with any future effect.
2. In my view, on all the evidence, there is an ample basis for the Magistrate's conclusions that:

(a) the respondent reasonably feared that further acts of family and domestic violence would occur; and

(b) if the appellant was unrestrained he was likely to act in a similar manner towards the respondent in the future.

1. It is sufficient to refer to four facts in support of the conclusion in the preceding paragraph. The first is the dysfunction between the appellant and the respondent was long standing. In the Magistrate's words: 'leading up to that time [when the Interim VRO was granted] Mrs Holland and Mr Ross Blenkinsop were siblings in a dysfunctional family group at loggerheads over disputes involving a family trust in which they were intricately involved'[270]. The second is that the acts of abuse identified occurred over a two or so year period. It was not a case in which there was a single incident which precipitated the grant of the Interim VRO. The third is that the email which appears to have precipitated the respondent obtaining the interim violence restraining order (dated 11 September 2014 - exhibit 51) is particularly offensive and it is quite understandable that the respondent considered this to be emotional abuse. The fourth is the level of angst which the appellant continued to have towards the respondent through the hearing of the trial. This is evident in the passage quoted by the Magistrate above ([312]). It was also plainly evident to me in reading the transcript of the trial.[271]
2. The appellant has not satisfied me that the factual findings of the Magistrate as to the appellant's future conduct, or the respondent's apprehensions of this conduct, were wrong by incontrovertible facts or uncontested testimony. Nor were they glaringly improbable or contrary to compelling inferences.
3. Grounds of appeal 23 and 24 have not been established.

13. Grounds involving the exercise of discretion

1. ROA s 11A required the Magistrate to find, in addition to the facts in paragraphs (a) and (b) which I have already dealt with, that 'making a restraining order is appropriate in the circumstances'. This involves the exercise of a judicial discretion.
2. The nature of the inquiry an appellate court is to undertake when reviewing a discretionary decision is conveniently summarised in the decision of Dixon, Evatt and McTiernan JJ in House v The King:[272]

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. In Norbis v Norbis Mason and Deane JJ made the following comments elaborating on the principles set out in House:[273]

Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.

The principles enunciated in House ... were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.

1. The Magistrate found that it was appropriate in all the circumstances that the Interim VRO be made final.[274]
2. The following observation by the Magistrate is best seen as part of the discretionary consideration:[275]

Mr Blenkinsop does not and has never conceded that he has committed any act of abuse against Mrs Holland. It is of concern that his response to these matters is to state that if there was abuse that Mrs Holland volunteered to be abused, brought the abuse upon herself, and deliberately and of her own free will exposed herself to emotional abuse and then complained about it. He further submitted that Mrs Holland could have stopped the abuse by blocking his e-mails, changing her e-mail address, resigning her position as a director or appointing an alternative director. The ROA is beneficial legislation the whole purpose of which is to protect persons from acts of abuse, not blame them for it, or place the onus on them to arrange their affairs to avoid abuse. In our society it is not acceptable, and indeed it never has been acceptable, for one family member to commit an act of abuse against another. This extends well beyond physical abuse and rightly includes abuse of an intimidatory, offensive or emotional kind. It is certainly not acceptable to seek to shift the blame for that abuse onto the abused. I reject this submission.

1. A number of the grounds of appeal in effect assert that the Magistrate erred in the exercise of her discretion.
   1. Her honour made a mistake of fact or law in concluding that Kim can obtain a VRO on the basis of my response to grotesque provocation and intimidation, by Kim, of me and my family. It appears her honour has again made an error in favour of the Protected Persons case.
   2. Her honour made a mistake of fact or law in concluding that Kims claim was not vexatious, frivolous and/or an abuse of process, when that was readily apparent from the evidence.

1. Her honour made a mistake of fact or law in considering that the making of a final order was appropriate in all the circumstances.

1. Her honour says it is never appropriate for there to be abuse between family members and then merrily continues to condone Kims abuse of, and acts of family and domestic violence directed towards, me and other family members, and her persecution of a whistleblower (me), which is a criminal offence, and her persecution of other family members who were also whistleblowers. It appears her honour has one standard for Kim and a much more stringent standard for me, which is not procedurally fair. It appears her honour may be biased.

1. I refer to paragraph 47 of her honours reasons and my earlier statement. If a family member breaks your leg with a base ball bat and you swear at them as a result. Can they get a VRO because you swore at them and it is reasonable to argue they, the perpetrator, bought such abuse upon themselves. It appears her honour has ignored such reasoning in favour of Kims shallow reasoning. In totality it appears her honour may be biased. It appears her honour has made an error of law or fact and in certain circumstances a family member can commit and act of abuse towards another family member and blame the perpetrator for bringing the abuse upon themselves. I repeat all other grounds of appeal here mutatis mutandis.

1. I made an angry and upset outburst in court. Kim and Scott have trolled me for years, threatened me and my family, abused me and my family, tried to forcibly remove my mothr fro er home, cost me about $1 million, refused to tell me my nephew with whom I was close was suicidal, caused me to be personally sued 4 times in the last 5 years, bought numerous vexatious claims against me, that's just the short list. If I was not angry I would be inhuman. Essentially that is part of my defence to Kims claims. That is part of the metaphorical baseball bat Kim struck me with.
2. The appellant concludes with a summary of all the claims made by the respondent which he says he has refuted. I characterise this as a challenge to the decision as a whole, that is, to the manner in which the Magistrate exercised her discretion: [276]
   1. A summary of Kims claims

Kim claimed under oath she was helping her mother, refuted in its entirety.

Kim claimed under oath I sent her copious quantities of emails morning noon and night, refuted in its entirety.

Kim claimed under oath I sent her copious quantities of abusive, intimidating threatening emails morning noon and night, refuted in its entirety.

Kim claimed under oath I sent her copious quantities of abusive, intimidating threatening emails morning noon and night, for years, refuted in its entirety.

Kim claimed under oath I abused, intimidated and threatened her in meetings, refuted in its entirety.

Kim claimed under oath all my emails were nonsense, refuted in its entirety.

Kim claimed under oath all my emails were not about company business, refuted in its entirety.

Kim claimed under oath I asked her for the same document over and over and over, refuted in its entirety.

Kim claimed under oath all company resolutions were by me, refuted in its entirety.

Kim claimed under oath claimed if there was 10000 emails by me 9999 would be abusive, refuted in its entirety.

Kim claimed under oath all company resolutions were by me and were designed to attack her, refuted in its entirety.

Kim claimed under oath she did not discuss the Blenkinsop matters with her children and did not poison her children against us, refuted in its entirety by Kims own witness.

Kim claimed under oath she had provided all documents relevant to the VRO matter, refuted in its entirety.

Kim claimed under oath that I abused Scott, refuted in its entirety.

Kim claimed under oath that I abused Kim, refuted in its entirety.

Kim claimed under oath that I was not welcome to her hose in or around 2008-2009, refuted in its entirety.

1. Kim claimed under oath that there was animosity between her and I in 2009 - 2013, refuted in its entirety.

1. In short her entire case was refuted by documents and independent witnesses. With respect the finding by her honour is completely unsupported and probably a miscarriage of justice.
2. The broadest ground of challenge to the exercise of a discretion based on the principles in House is that the ultimate decision is 'unreasonable or plainly unjust', in which case the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. Given that I am treating the appellant as a litigant in person, I will treat the grounds of appeal I have identified in [327] and [328] as asserting that the ultimate decision of the Magistrate was so unreasonable or unjust that error can be inferred.
3. On the totality of the evidence before the Magistrate, the appellant has not satisfied me that the Magistrate's decision was so unreasonable or unjust that error can be inferred. The facts I have identified in pt 11 and pt 12 are a cogent basis for the exercise of the discretion in the manner in which the Magistrate did.
4. The appellant has not established grounds of appeal set out at [327] and [328].

1. A number of grounds of appeal assert that the Magistrate was biased:
   1. It appears the Magistrate may be biased. The Protected Person was female, educated, and about the same age as her honour. Her honour was active on gender issues for a number of years including whilst she sat as a magistrate. Repeatedly throughout the course of the trial the Protected Person appealed to the Magistrates on feminist grounds. A google search of her Honours decisions it appears her honour is hard on men, but soft on women.

1. It appears the Magistrate made a mistake of fact and/or law, or alternatively abused her power and/or acted ultra vires, as it appears she made her decision based on her dislike of me, nd not on the facts of the case. It appears her Honour didn't like me as I was confident and outspoken and not quite, submissive, controlled and complaint like the Protected Person.

A court room is a place for unemotive egoless professionals to try serious matters of fact and law, and seek the truth, it is not a popularity contest.

An easy way to game the system is to be ultra polite and ultra apologetic. Given the nature of this field of endeavour the courts should make themselves as robust as possible against people gaming the system, as appears was the case here.

1. Because of the many grounds outlined in these grounds for appeal it appears I was not heard and was denied Natural Justice. It appears her honour has made numerous errors in favour of the Protected Persons case but not mine. That is not Procedurally Fair and it appears I have been denied Procedural Fairness. It appears her honour has made numerous errors in favour of the Protected Persons case but not mine. It appears her honour may be bias.

1. The fact that it appears her honour has made numerous errors that appear to all favour Kim possibly gives the impression that her honour was biased.

1. Despite there being glaring inconsistencies in Kim evidence her honour finds Kim a credible witness. In totality it appears her honour may be biased. Her honour fails to mention the many instance of family violence perpetrated towards me by Kim. The phone call never took place.

If her honour was biased it is likely she discounted my evidence and submission is which case I was not heard or treated fairly, and as such was denied Natural Justice. It appears from the reason that her honour did not consider my evidence and/or submissions. I repeat all other grounds of appeal here mutatis mutandis.

If her honour was biased it is likely she discounted my evidence and submission but it appears she did consider Kims evidence and submissions. Therefore I have not been procedurally treated the same as Kim and as such I have not been afforded Procedural Fairness.

1. There are so many errors of fact, and law, it is difficult to know where to start. But it appears vast bulk of the errors are consistently in Kims favour and no errors in my favour.
2. To the extent that these grounds of appeal refer to points other than bias, I have already addressed the substance of those complaints in the grounds of appeal I have considered so far.
3. In Re JRL; Ex parte CJL Mason J observed that 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'.[277]
4. A decision of a Magistrate who is, or appears to be, biased, breaches the rules of procedural fairness and thereby may be set aside based on an error of law.[278]
5. The bias asserted by the appellant has two bases. The first is that the Magistrate was actually biased against him. The second is that, given the manner in which the Magistrate conducted the trial as regards the appellant, the Magistrate appeared to be biased.

14.2 Did the appellant waive his right to object on the ground of bias?

1. A preliminary issue arises which is whether the appellant acted in such a way as to waive his right to object on the basis of bias. The principle is conveniently stated in the judgment of Brennan, Deane and Gaudron JJ in Vakauta v Kelly: [279]

For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express.

Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

1. Dawson J observed that although 'justice must manifestly be seen to be done, where a party, being aware of his right to object, waives that right, there will be little danger of the appearance of injustice'.[280]
2. In the present case, the appellant raised concerns as to the manner in which the Magistrate was conducting the trial on a number of occasions, and foreshadowed appealing on the basis of denial of procedural fairness.[281]
3. This is again an issue on which some allowance should be made to the appellant on the basis that he is a litigant in person. Making that allowance, I do not consider that the appellant waived his right to complain on the ground of actual or apprehended bias.

14.3 Was the Magistrate's decision tainted by actual bias?

1. As to the first basis, actual bias, in Stephens v Stephens Strickland J observed:[282]

An allegation of actual bias is a very serious matter. Allegations of actual bias are uncommon and actual bias is rarely found by courts. For a judicial officer to be disqualified, it is usually sufficient to establish a reasonable apprehension of bias. Where actual bias exists, reasonable apprehension of bias will also exist. It is therefore generally considered unnecessary for allegations of actual bias to be considered or determined.

1. Strickland J went on to quote the following passage from the decision of Kirby J in Minister for Immigration and Multicultural Affairs v Jia Legeng:[283]

Until recently it was extremely rare for parties before Australian courts to assume the task of establishing 'actual bias' on the part of a decision-maker. Sometimes, in the heat of disappointment or distress caused by an adverse decision, actual bias was alleged. Usually such allegations were later withdrawn. This was because, as the law of natural justice concerning the right to an impartial decision-maker has developed in Australia, it was ordinarily sufficient for the complainant to establish 'imputed', 'apparent', 'apprehended', 'suspected', 'notional' or 'deemed'bias ('imputed bias'). Although the two kinds of bias obviously overlap, imputed bias does not require the complainant to establish anything about the subjective motives, attitudes, predilections or purposes of the decision-maker. It is enough to show that 'in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it'. A party would be foolish needlessly to assume a heavier obligation when proof of bias from the perceptions of reasonable observers would suffice to obtain relief.

1. Strickland J then observed that '[a]ctual bias is more difficult to establish, there being a subjective, rather than objective test, requiring an examination of the decision maker's subjective state of mind'.[284]
2. The test for actual bias was summarised by Newnes JA in Chin v Legal Practice Board of Western Australia:[285]

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 Multicultural 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. My review of this case has included reviewing the entirety of the transcript of the trial, as well as the 290 page Appellant's MC Submissions. From my review of the case as a whole, the appellant has not satisfied me that the Magistrate was actually biased in the manner way described in Chin. The allegation certainly has not been 'clearly proven'. The appellant has not established the grounds of appeal raising bias in so far as they assert actual bias.

14.4 Did the Magistrate act towards the appellant in a manner such as to give rise to a reasonable apprehension of bias?

1. In R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, Dixon CJ, Williams, Webb and Fullagar JJ observed of bias based on prejudgment:[286]

But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons.

1. In R v Watson; ex parte Armstrong the High Court expressed the principle to be that 'a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial'.[287]
2. The relevant test was stated by the court of appeal in Smart v Albuquerque:[288]

The test to be applied in determining whether a judge should be disqualified for apparent bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:

[T]he observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' [12]. (footnotes omitted)

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.[289]
2. In De Alwis v The State of Western Australia [No 2] McLure P observed, in the context of dealing with an assertion of bias, that 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'.[290]
3. Before considering the issue of apprehended bias, it is necessary for me to observe that on a number of occasions throughout the trial, the appellant acted in a manner which is best described as being difficult. Specifically, at various points, the Magistrate had to tell the appellant to:
   • Stop talking over her[291]
   • Stop arguing [292]
   • Stop interjecting[293]

• Stop talking over the witness who was attempting to answer his question[294]
• Stop asking repeated questions in order to give the witness time to answer[295]
• Stop strolling up and down and to stand in front of the microphone[296]
• Stop making a speech or submission, as opposed to asking a question[297]
• Stop swearing.[298]

1. Her Honour also raised with the appellant the fact that his voice was very loud[299], something I also had to address in the appeal hearing.[300]
2. The mere fact that the Magistrate was a female is not a basis for a reasonable apprehension of bias based on gender. The appellant 'must take the Court as it is'.[301]
3. Even if the Magistrate was active on gender issues whilst sitting as a magistrate, as the appellant asserts, that again is not a basis for a reasonable apprehension of bias. It is a routine part of the work of members of the modern judiciary to be involved in initiatives that seek to eliminate all forms of discrimination in the justice system, gender or otherwise.
4. The appellant did not provide any examples in his submissions to support his bald assertion that a 'google search of her Honours decisions it appears her honour is hard on men, but soft on women'. I observe that decisions of the Magistrates Court are not available publicly online[302], so the basis for this assertion is not readily apparent to me.
5. The fact that the Magistrate did not accept all the evidence of the appellant and made findings against him is not a basis for a reasonable apprehension of bias against the appellant. The very purpose of the adjudication process is to make findings of fact as between two parties who are in dispute.
6. The fact that the Magistrate made rulings against the appellant does not provide a basis for a reasonable apprehension that the Magistrate did not bring an impartial or unprejudiced mind to bear on those matters and other matters.[303]
7. As to the assertion that the sheer number of errors in favour of the respondent suggest bias, as set out in the reasons thus far in this decision, I have only been able to identify one error in the approach of the Magistrate, and that was a technical issue of law relating to evidence (see [239] above). Even if I had identified more errors, indeed many errors, that again of itself is not a basis for a reasonable apprehension of bias.
8. From my review of the case as a whole, I do not consider that a 'fair-minded lay observer might reasonably apprehend' that the Magistrate had not brought an impartial and unprejudiced mind to the resolution of the issues the Magistrate had to decide.
9. The appellant has not established grounds of appeal 14, 19, 39, 58, 62 or 73.

1. Grounds 13, 20 and 54 assert that the Magistrate gave inadequate reasons for her decision:
   1. The Magistrate provided insufficient reasons for her judgement. For instance she has not explained how she found the Protected Person to be a credible witness despite the fact on balance no such finding was open on the evidence. As such this has impeded my ability to appeal her decision, which favours the Protected Person. It appears her honour may be based.

1. Her honour has given insufficient reasons so there may be other grounds for appeal. I seek leave to provide further grounds in due course.

1. In the reasons for judgement her honour has only listed emails favourable to Kims argument. Her honour has not listed the numerous emails that demonstrated the many and substantial inconsistencies in Kims evidence. Her honour has not listed the many email favourable to my case. It appears I have not been heard and ultimately was denied Natural Justice. It appears Kim has been heard, and I wasn't, so ultimately I was also denied Procedural Fairness. It appears her honour may have been biased in favour of Kim.
2. In relation to the comment in ground 20 that the appellant foreshadowed seeking leave to provide further grounds, as set out above [17] I have not separately considered any additional grounds of appeal which the appellant sought to add in the Appellant's Submissions.
3. The appellant elaborated in the Appellant's Submissions that:[304]

Her honour has not explained how she arrived at the conclusion that a VRO was warranted.

1. The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission[305] are an appropriate and instructive starting point in considering this ground of appeal (references omitted):

The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process... That is because 'the duty is a function of due process, and therefore of justice'... Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment... The requirement also furthers judicial accountability...

Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.

1. In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[306]

Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised... The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose...

1. Unless the ROA makes contrary provision, if a matter in relation to a restraining order is being heard by the Magistrates Court, 'the practices and procedures to be followed... are... the practices and procedures applying in that court under the Magistrates Court (Civil Proceedings) Act 2004'.[307]
2. The procedures in the MCCPA include MCA s 31:
   1. Judgments, content of

(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and

(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

1. The definition of 'case' in MCA s 3 means that this provision applies to both civil and criminal proceedings.
2. In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the MCA s 31(1): [308]

Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred ...

1. His Honour went on to make some observations about the realities of work pressure in the Magistrates Court:[309]

The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.

1. The Magistrate expressly referred to MCA s 31 in her reasons.[310]
2. In my view the Magistrate:

(a) adequately identified the facts that she accepted in coming to the decision and gave the reasons for doing so; and

(b) adequately identified the law that she applied (and not applied) in coming to the decision and gave the reasons for doing so.

1. To the extent that the Magistrate did not canvass all the evidence given in the case, and did not canvass all the factual and legal arguments or issues arising in the case, in particular those of the appellant, her Honour was permitted to do so pursuant to MCA s 31(1)(c) and (d). Moreover, a large portion of the evidence adduced by the appellant went to the issue of provocation, an issue which the Magistrate correctly found to be irrelevant. There was thus no need to consider this evidence.
2. Further, the Magistrates Reasons were sufficient for the appellant to identify 97 grounds of appeal (the remaining two relating to adequacy of reasons). Moreover, they were ample for me to address each of these grounds of appeal.
3. The appellant has not established grounds of appeal 13, 20 and 54.
4. Even if I were of the view that the Magistrate's Reasons were inadequate, it would not automatically follow that the Magistrate's Decision would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[311] For the reasons set out in the balance of this decision, even if I were of the view that the Magistrate's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in relation to the Magistrate's Decision.

1. For the reasons which I have set out above, the appeal should be dismissed.
2. As to costs, the respondent was not represented and according to court records incurred no court filing fees. There should be no order as to costs.

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

[1] The transcript of this hearing is annexed to the Magistrate's Reasons.

[2] 23 and 24 June 2016, 2, 3 and 4 November 2016, 8 and 9 February 2017.

[6] MCCPA s 40(3)

[7] Rules of the Supreme Court 1971 (WA) O 3 r 3.

[8] Interpretation Act 1984 (WA) s 5, s 61.

[9] MCCPA s 40(3).

[10] As to which, see: Labib v Histon [2017] WADC 39 [40] - [41] (Gething DCJ).

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

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

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

[15] Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J).

[16] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] - [10] (Bowden DCJ).

[17] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow and Hayne JJ).

[18] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).

[19] Appellant's Submissions, pages 14 - 15, 37, 41.

[20] As revealed by a search of the Law Almanac.

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

[22] 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).

[23] 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).

[24] 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).

[25] Magistrate's Reasons, par 7, citing Interpretation Act 1984 (WA) s 37.

[26] Burns v Minister for Health [2012] WASCA 267 [18] (Martin CJ, with whom Newnes JA agreed).

[27] Rodway v R [1990] HCA 19; (1990) 169 CLR 515, 519 - 521 (judgment of the court), in particular the discussion of the decision in Newell v R [1936] HCA 50; (1936) 55 CLR 707.

[28] ROA s 3.

[29] ROA s 4(1)(c).

[31] ROA s 6(1).

[32] ROA s 6(4).

[33] ROA s 12(1).

[34] ROA s 12(2).

[35] ROA s 26(1)(a).

[36] ROA s 29(1)(a).

[37] ROA s 29(3).

[38] ROA s 33.

[39] ROA s 42(4)(b).

[40] ROA s 43.

[41] Appellant's MC Submissions, page 289.

[42] ROA s 69(2).

[43] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 9 - 10 (judgment of the court); Glew v Shire of Greenough [2006] WASCA 260 [9] (Wheeler JA, with whom Pullin & Buss JJA agreed).

[44] Building Construction Employees & Builders' Labourers Federation of New South Wales v Minister for Industrial Relations (1986) 7 NSWLR 372, 405 (Kirby P).

[46] Pickin v British Railways Boards [1974] UKHL 1; [1974] AC 765, 782 (Lord Reid); Grace Bible Church v Reedman (1984) 36 SASR 376, 383 - 384 (Zelling J), 385 (White J); Nationwide News Pty Ltd v Willis [1992] HCA 46; (1992) 177 CLR 1, 43 (Brennan J).

[47] There are two grounds of appeal numbered 96. I will refer to the first as '96' and the second as '96a'.

[49] Lydon v Lydon [2008] WASCA 8 [30] - [34] (Le Miere AJA with whom Pullin JA agreed).

[50] See Dietrich v The Queen [1992] HCA 57; [1992] HCA 57; (1992) 177 CLR 292, 305 - 306 (Mason CJ and McHugh J), 321 (Brennan J), 348 - 349 (Dawson J), 359 - 360 (Toohey J); Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (1995) 183 CLR 273, 286 - 287 (Mason CJ and Deane J); Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416, 480 - 482 (Brennan CJ, Toohey, Gaudron, McHugh & Gummow JJ); Sinanovic v The Queen [1998] HCA 40; (1998) 72 ALJR 1050, 1054 [25] (Kirby J); Wilson v White [2007] WASCA 87 [23] (Buss JA with whom Wheeler & Buss JJA agreed).

[56] MCA s 34(1), (7).

[58] ROA s 42.

[59] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 - 40 (Mason J); HAR v The State of Western Australia [No 2] [2015] WASCA 249 [96] (Buss JA with whom Mazza JA & Hall J agreed).

[60] ROA s 42(4) and (5).

[61] Baron v Walsh [2014] WASCA 124. [31] - [40] (McLure P, with whom Mazza JA & Chaney J agreed).

[62] Baron v Walsh [60] - [62].

[64] ROA s 12(1)(e).

[66] ROA s 29(1)(a).

[67] ROA s 13.

[68] ROA s 63(1) read with the definition of 'violence restraining order' in ROA s 3.

[69] ROA s 62.

[70] ROA s 31, s33.

[72] ROA s 3; Myles v Carroll [2003] WASCA 160 [12] (EM Heenan J).

[74] ROA s 6.

[76] Baron v Walsh [2014] WASCA 124.

[78] See for example Magistrate's Reasons, pars 44 and 46.

[79] Magistrate's Reasons, pars 10 - 17.

[81] Lydon v Lydon [2008] WASCA 8.

[84] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J). See also: Commissioner of Police (NSW) v Tanos [1958] HCA 6; (1958) 98 CLR 383, 395 - 396 (Dixon & Webb JJ); **Allesch (**184 - 185) (Kirby J).

[85] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed). See also: Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156] (Hayne, Crennan, Kiefel and Bell JJ); Woodley [77].

[86] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]. See also [88] (Gummow & Bell JJ), [141] - 146] (Heydon J).

[87]Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [112] (Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[88] Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 (Tey) [7] - [8] (judgment of the court).

[94] Mag Ct ts 4.11.16, pages 326 - 327.

[95] See for example, Appellant's MC Submissions, pages 255ff.

[96] Appellant's submissions, pages 1, 15, 19 - 20.

[97] See for example Mag Ct ts 24.6.16, pages 211 - 215.

[98] Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR) r 31.

[99] Mag Ct ts 24.6.16 pages 144 - 145.

[100] Mag Ct ts 24.6.16, pages 214, 229, 242.

[101] Being APP 40 of 2017. The appellant also commenced a second appeal around this time from a decision of a registrar of the Magistrates Court, being APP 32 of 2015. This second appeal is not relevant for present purposes.

[103] See generally: MCCPR pt 7.

[105] Mag Ct ts 24.6.16, pages 220 - 223, 227.

[107] Appellant's MC Submissions, pages 12 - 132.

[108] Magistrate's Reasons, Annexure A, pages 42 and 43.

[109] Magistrate's Reasons, Annexure A, page 47, par 66. The transcript reference is Mag Ct ts 2.11.16, page 11.

[110] Appellant's Submissions, pages 14 - 15, 19, 32.

[111] Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39 [27] (Spender J).

[112] R v Kelly; ex parte Hoang van Duong (1981) 28 SASR 271, 273 (King CJ with whom Zelling & Jacobs JJ agreed).

[113] Fried v National Australia Bank Limited [2000] FCA 911; (2000) 175 ALR 194 [28] (Weinberg J).

[114] Evidence Act 1903 (WA) s 26. See also: s 21 to s 25.

[115] Mag Ct ts 23.6.16, pages 130-131.

[116] Mag Ct ts, 24.6.16, pages 143, 158.

[117] Mag Ct ts 24.6.16, pages 191, 194, 196, 200, 252, 257; 2.11.6 pages 13, 45, 61, 73.

[118] See for example: Mag Ct ts 24.6.16, pages 175-176, 183; 2.11.16 pages 6-7.

[119] See for example: Mag Ct ts 24.6.16, pages 153, 170, 172, 245, 257; 2.11.16 pp 9, 12-13, 16, 19, 32, 37.

[120] See for example: Mag Ct ts 24.6.16, pages 193-194.

[121] See for example: Mag Ct ts 24.6.16, pages 168, 251.

[122] Mag Ct ts 24.6.16, pages 186, 195-196, 255; 2.11.16 pages 24 - 25.

[123] Mag Ct ts 24.6.16, pages 189, 208, 240 - 241.

[124] Mag Ct ts 24.6.16, pages 159, 161, 162 - 163, 165, 172, 192, 201, 233 - 234, 236, 237, 239 - 240, 251; 2.11.16 pages 7, 10, 65, 68, 71, 86, 88, 93.

[125] See for example Mag Ct ts 24.6.16, pages 239-243.

[126] See for example: Mag Ct ts 24.6.16, pages 181, 182, 185, 195 - 196, 198, 201, 207, 225, 231, 232, 235, 237, 246, 250, 251, 252, 254, 255, 267, 270; 2.11.16 pages 18, 29, 31, 35, 36, 44, 67, 74.

[127] Mag Ct ts, 26.6.16, page 160, also 167.

[128] For example: Hellings v The Queen [2003] WASCA 208 [62] (judgment of the court).

[129] Mag Ct ts 24.6.16, pages 178-190.

[130] For example Mag Ct ts 2.11,16, page 11.

[131] For example Mag Ct ts 24.6.16, pages 150, 155, 166, 199, 213.

[132] For example Ct ts 24.6.16, page 213; 2.11.16 pages 15, 8.

[133] For example Mag Ct ts 24.6.16, pages 95.

[134] For example Mag Ct ts 24.6.16, page 139.

[135] For example Mag Ct ts, 23.6.16 pages 99, 107.

[136] For example, Mag Ct ts 4.11.16, page 378; 8.2.17 page 16.

[137] For example Mag Ct ts 8.2.17, page 12.

[138] For example Mag Ct ts 4.11.16, page 394.

[139] For example Mag Ct ts 8.2.17, page 10.

[140] For example, Mag Ct ts 8.2.17, pages 14, 20.

[141] For example, Mag Ct ts 8.2.17, page 20.

[142] For example, Mag Ct ts 4.11.16, pages 394, 395, 396, 398; 8.2.17 pages 16, 22.

[143] For example Mag Ct ts 4.11.16, page 390; 8.2.17 page 18.

[146] See generally: Zuckerman A S et al, Zuckerman on Australia Civil Procedure (LexisNexis Butterworths, Australia, 2018), par [1.72].

[147] District Court Annual Review, 2016, p 7, available online at https://www.districtcourt.wa.gov.au/\_files/2016\_WADC\_AnnualReview.pdf.

[153] International Finance [141].

[154] For example, Mag Ct ts 3.11.6, pages 169-178, 225 - 230, 235 - 241.

[155] For example, Mag Ct ts 3.11.16, page 169; 4.11.16 pages 365, 369.

[156] For example, Mag Ct ts 3.11.16, pages 185, 189, 230; 4.11.16 pages 351, 358.

[157] For example, Mag Ct ts 4.11.16, pages 344, 352, 368.

[158] For example, Mag Ct ts 3.11.16, 222, 253, 329; 4.11.16 367,

[159] For example, Mag Ct ts 3.11.16, pages 224, 279.

[160] For example, Mag Ct ts 8.2.17, pages 43 - 46, 53 - 59 and 70 - 74.

[161] For example, Mag Ct ts 8.2.17, pages 49, 66, 75, 79, 88 and 89.

[162] For example Mag Ct ts 8.2.17, pages 83, 84.

[163] For example, Mag Ct ts 8.2.17, pages 30, 70

[165] For example, Mag Ct ts 8.2.17, pages 41, 59, 63.

[166] For example, Mag Ct ts 8.2.17 pages 42, 43, 47, 49, 52 and 62.

[167] For example Mag Ct ts 8.2.17 47, 48, 69, 78, 83, 84, 85, 86 and 87.

[171] Mag Ct ts 8.2.17, pages 113 - 114.

[174] Mag Ct ts 8.2.17, pages 106, 111 - 112.

[176] For example, Mag Ct ts 9.2.17, pages 146 - 152, 167 - 168, 175 - 176, 187 - 189.

[177] For example Mag Ct ts 9.2.17, pages 153, 177, 178, 181, 184, 186.

[178] For example Mag CT ts 9.2.17, pages 154 - 155, 163.

[179] For example Mag Ct ts 9.2.17, page 157.

[182] Mag Ct ts 9.2.17, pages 165 - 166.

[183] Mag Ct ts 9.2.17, pages 171 - 172.

[184] Mag Ct ts 9.2.17, pages 192, 193.

[186] Mag Ct ts, 9.2.17, pages 193, 194.

[191] See generally: Heydon J D, Cross on Evidence (11th Australian edition, LexisNexis Butterworths, Australia, 2017) par [17165].

[192] Mag Ct ts 9.2.17, pages 215-220.

[193] Mag Ct ts 9.2.17 pages 222, 226.

[197] Mag Ct ts 9.2.17, pages 234, 239.

[198] 1110 Hay Pty Ltd as trustee for The Hay Street Trust v Metso Minerals (Australia) Ltd [No 2] [2018] WASC 227 [31] - [36] (Derrick J), citing Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 [182] - [185] (Pritchard J).

[199] District Court ts, page 30 - 31.

[200] Magistrate's Reasons, pars 27 - 28.

[203] Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 [22], [23], [29], [31] (Gleeson CJ, Gummow & Kirby JJ) (references omitted).

[204] Woodley [154] (footnotes omitted).

[205] Badran v Public Transport Authority of Western Australia [2017] WASCA 28 [65] (reasons of the court).

[207] Robinson Helicopter [43]; Badran [65]; East Metropolitan Health Service v Martin [2017] WASCA 7 [99] (reasons of the court); Woodley [154].

[208] Magistrate's Reasons, par 27, quoted in context at [208].

[210] Magistrates Court Act 2004 (WA) s14.

[211] ROA s 44A(1)(a). This relevantly is extended to a final order hearing for a family violence restraining order by Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA).

[212] See for example: Mag Ct ts 8.2.17, pages 39, 88,

[213] See for example: Mag Ct ts 8.2.17, pages 141, 146, 162 - 163, 166, 168 - 170, 171, 174, 181.

[214] Mag Ct ts 9.2.17, pages 168 - 170.

[215] Heydon J D, Cross on Evidence (11th Australian edition, LexisNexis Butterworths, Australia, 2017) par [17150]. See also SJX v The State of Western Australia [2010] WASCA 243 [82] - [84] (Buss JA with whom McLure P & Mazza JA agreed).

[216] Stone v Braun [2015] WASCA 103 [67] (Beech J, with whom Buss & Mazza JJA agreed); Woodley [76].

[217] R v Wilson (1913) 9 Cr App R 124, 126 (Lush J).

[219] Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 [28] (Gleeson CJ, Gaudron, Gummow & Callinan JJ); Osland v Secretary to the Department of Justice [2008] HCA 37; (2008) 234 CLR 275 [44 - [46] (Gleeson CJ, Gummow, Heydon & Kiefel JJ).

[221] Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; (1996) 39 NSWLR 601, 608 (Sheller JA, with whom Waddell AJA agreed).

[222] Farrow (608) (my emphasis).

[223] See by way of relevant contrast: Brown v Churchill [2006] WASCA 17 [41] (Pullin JA).

[224] Brown [39]; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 [36] (Kirby and Heydon JJ).

[225] Balenzuela v De Grail [1959] HCA 1; (1959) 101 CLR 226, 232 (Dixon CJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] (judgment of the court).

[226] Balenzuela (232); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [17] (judgment of the court).

[227] Brown [45]. See also: Western Australia v Watson [1990] WAR 248, 287, 293 - 294 (judgment of the court).

[228] R v Willliams; Ex Parte Lewis [1992] 1 Qd R 643, 656-657 (Williams J, with whom Shepherdson & de Jersey JJ agreed)

[229] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (39 - 40); HAR [96].

[230] See generally: Brown [7].

[232] Appellant's MC Submissions, pages 92 - 98, including an observation that: 'I am a lawyer by professional conduct rules'.

[233] Being exhibits 62, 67, 68, 77 and 78.

[234] Mag Ct ts 3.11.16, pages 280 - 287.

[235] As to which see: Supreme Court Act 1935 (WA) s 71.

[237] Magistrate's Reasons, pars 33 - 38.

[239] Jones v Dunkel [1959] HCA 8; ([1959] HCA 8; 1959) 101 CLR 298, 309 (Menzies J).

[240] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358 (Dixon, Fullagar & Kitto JJ); Chamberlain v The Queen (No 2) [1984] HCA 7; [1984] HCA 7; (1984) 153 CLR 521, 536 (Gibbs CJ & Mason J); Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190 [47] (reasons of the court); Fazio v Fazio [2012] WASCA 72 [48] (Murphy JA, with whom Pullin & Newnes JJA agreed).

[242] Luxton (360); Fazio [48].

[243] There are two paragraphs numbered 29 in the grounds of appeal which I will refer to as '29' and '29a'.

[244] Appellant's Submissions, page 24.

[245] Exhibit 24, referred to at Mag Ct ts 23.6.16, pages 71-72.

[247] Mag Ct ts 24.6.16, pages 245 - 253.

[249] Appellant's Submissions, page 24.

[250] Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370, (2002) 76 ALJR 1024 [2] (Gleeson CJ); Phillips v The Queen [2006] HCA 4; (2006) 225 CLR 303 [50] (judgment of the court); MJH v Western Australia [2006] WASCA 167; (2006) 33 WAR 9 [43] (Roberts-Smith JA); Haydon-Wood v The State of Western Australia [2017] WASC 259 [19] (Hall J).

[252] Magistrate's Reasons, pars 42 - 44.

[253] Appellant's Submissions, pages 15 - 16.

[255] Mag Ct ts 23.6.16, page 27. See also: Mag Ct ts 2.11.16, page 7.

[256] Mag Ct ts 4.11.16, pages 393, 401.

[258] Magistrate's Reasons, pars 45 and 46.

[260] Mag Ct ts 23.6.16, pages 59 - 60.

[262] Magistrate's Reasons, Annexure A, page 33.

[263] Magistrate's Reasons, pars 49 - 50.

[264] Mag Ct ts 24.6.16, pages 140 - 141.

[265] Magistrate's Reasons, Annexure A, page 47. The transcript reference is Mag Ct ts 2.11.16, page 11.

[266] Magistrate's Reasons, pars 52 - 54.

[267] Appellant's Submissions, page 22.

[272] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ) (references omitted); Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [61] (judgment of the court).

[273] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519 (Mason & Deane JJ); Commonwealth Bank of Australia v Rosebridge Nominees Pty Ltd [2005] WASCA 211 [17] (Miller AJA, with whom Pullin JA agreed); T v L [2006] WASCA 46 [36] - [39] (Malcolm CJ), [126] - [127] (McLure JA), [148] - [149] (Murray AJA).

[276] There are two grounds of appeal numbered 97, so I will refer to the second ground 97 as '97a'.

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

[278] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262-263 (Barwick CJ, Gibbs, Stephen & Mason JJ).

[279] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 572 (Brennan, Deane & Gaudron JJ). See also 577 (Dawson J), 587 (Toohey J).

[281] See for example: Mag Ct ts 2.11.16, pages 40, 101 - 102.

[282] Stephens v Stephens [2010] FamCA 184 [22] (Strickland J).

[283] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507, 541 (Kirby J) (footnotes omitted).

[284] Stephens v Stephens [24]. See also: Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [33], [67] (Gummow ACJ, Hayne, Crennan & Bell JJ).

[285] Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA). See also: Smart v Albuquerque [2011] WASCA 231 [8] (judgment of the court); MTI v SUL [No 2] [2012] WASCA 87 [13] (judgment of the court).

[286] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22, (1953) 88 CLR 100, 116 (Dixon CJ, Williams, Webb & Fullagar JJ).

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

[291] Mag Ct ts 23.6.16, page 51; 4.11.16 page 366.

[292] Mag Ct ts 23.6.16, page 90; 24.6.16 pages 197, 211, 243; 2.11.16 page 122.

[294] Mag Ct ts 24.6.16, page 200; 2.11.16 pages 35, 71, 84; 2.11.16 page 131.

[296] Mag Ct ts 24.6.16, pages 205, 211.

[297] Mag Ct ts 2.11.16, pages 109, 118, 120.

[298] Mag Ct ts 24.6.19, pages 215 - 216; 4.11.16 page 331. In relation to the first reference, I do not accept the appellant's submission that an alternate interpretation was open to the Magistrate: Appellant's Submissions, page 15.

[301] Lindon v Kerr (1995) 57 FCR 284, 285 (Davies J).

[302] On either the WA Courts ePortal (ecourts.justice.wa.gov.au) or Austlii (www.austlii.edu.au).

[304] Appellant's Submissions, page 20.

[305] Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] - [27] (judgment of the court); See also: Velez Pty Ltd v Tudor [2011] WASCA 218 [59] - [67] (Murphy JA, with whom Pullin & Newnes JJA agreed).

[306] Velez [63] (references omitted).

[307] ROA s 72.

[308] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).

[309] Manonai [56]; Velez [69]; Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58 [107] (Schoombee DCJ).

[311] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P & Newnes JA agreed); Mount Lawley [29] (judgment of the Court)