Evidence - Options open to the court when there has been non-compliance with the rule in Browne v Dunn

1. As the Appellant was present in court when the Final FVRO was made, it took effect from 18 August 2023.
2. The Magistrate published detailed written reasons for the Decision.[11] The central part of her Honour's reason is as follows:[12]

I am satisfied, and find, that the parties were in a family relationship as defined in the RO Act. In terms of family violence I am satisfied and find that [WWW] engaged in behaviour that constitutes family violence as defined during the relationship and post separation.

The evidence demonstrated a pattern of behaviour, by [WWW] to [DET], over time. In the main this is not a case of physical violence, although there was some evidence of actual physical force directed to [DET]. There were significant threats made to, or in the presence of [DET] during the relationship and substantial harm caused to her, including fear of [WWW] for herself and the children, distress and ongoing stress and anxiety. The behaviour by [WWW] during the relationship, and subsequently, may be broadly described as controlling, emotionally abusive and intimidating. There is no question that it is family violence practiced over many years, the form or venue changing as circumstances changed.

After separation those circumstances included one or more Court orders restraining [WWW], inter alia, from communicating with [DET], but [WWW] found ways to continue the family violence for example the gold digger comment in the bank transfer, the derogatory comments to the children about their mother during Facetime, the persistence of telephone calls in breach of Family Court orders, the physical intimidation in the Family Court on 2 occasions. I am satisfied that [WWW] has, to some extent modified his behaviour towards [DET] in order to persist with behaviour which denigrates her, is intimidating and/or is harassing or intimidating so as to minimize the risk of prosecution for breach of the IFVRO.

1. The Magistrate specifically addressed the issue of the extension of the order to protect the children. Given the centrality of this issue to the Appeal, I will quote her Honour's findings in full:[13]

In light of the evidence of the exposure of the children to family violence and [DET]'s submission to extend the FVRO to protect the children it is necessary to consider that issue specifically.

One of the most telling pieces of evidence regarding exposure of the children to family violence was [ECW]'s reaction to her cousin messing up the toys in the doll's house, at her maternal grandmother's house shortly after separation. [MS] described [ECW] as really distressed, crying and screaming, "you can't mess up the house because Daddy will scream at us". I accept that evidence and find that [ECW] behaved in that manner.

In her evidence [MS] spoke of [ECW]'s response to her father when he said negative things about her mother during calls between [WWW] and the children, which in summary were to make a joke of it, then try to change the subject, only to have her father say things like, "did mummy stop you from seeing me". [AP]'s evidence about observations of court ordered telephone calls between [WWW] and the children, corroborated [DET]'s and [MS]'s evidence of the nature and content of [WWW]'s comments about their mother. I accept and find that [WWW] made comments during those court-ordered telephone calls, as follows:

(a) "your mum is not looking after you",

(b) "you've been on a holiday and there will be a consequence for that"

(c) "Nanna who you live with is evil and the police are getting her"

(d) "You're starting to look like your mummy. I hope you don't turn out like that bitch"

All of the above comments were, on the face of it, directed to one or both of the children. The sessions are for the express purpose of the children having contact with their father. [DET]'s only role is to facilitate the contact by ensuring the children are available to participate and to make the call, as per the Family Court orders. However, it is clear that [WWW] also intended to denigrate [DET], or make derogatory remarks about her, in relation to (a) and (d). Said by one parent to a child, about their other parent, these comments are emotionally abusive, if not psychologically harmful, intended as they are to undermine the child's trust and confidence in their primary caregiver.

Comment (b) is clearly directed to [DET], and intended to be threatening and/or intimidating. Young children may not understand the language, or the meaning of words, but are likely to perceive, or feel, strong emotion, such as anger. These are children who, I accept and find have been around when their father has been shouting, yelling, angry and aggressive to their mother, for example the behaviour at the Moomba Festival in Melbourne in 2019. Indeed [WWW] conceded in his evidence that the children had been present on one occasion in Melbourne when he had "raised his voice" at [DET]. The children are likely to have perceived a threat directed to their mother implicit in the words "there will be a consequence".

Comment (c) characterized the maternal grandmother with whom they were living as evil, and conveyed the idea that the police would get her. For young children they are simple, but powerful, concepts; evil and the police taking someone away, which depending on the maturity of the child, may cause apprehension, if not fear. The comment is directed to one or both children, intended, inter alia to suggest that their grandmother is a bad person. This is abusive of the children, emotionally abusive, and has the potential to cause psychological harm.

[WWW]'s use of Facetime to make derogatory and/or abusive remarks to or about [DET], to which the children have been exposed, or indeed abusive and/or derogatory remark/s to one or both children ... in the context of the history of family abuse to which I am satisfied the children were exposed prior to separation, calls for the extension of the FVRO to protect the children. The children remain at risk of exposure to family violence. There is nothing to suggest that [WWW] understands the adverse impact, indeed harm, likely to be suffered by the childrens' exposure to family violence. There is nothing to suggest that [WWW] will cease his engagement in family violence. The children need to be protected in accordance with s.10B(1)(a)(b) and (c) of the RO Act, in light of the past exposure to family violence and the likelihood of future exposure, in accordance with s10E(1)(a). Alternatively I am satisfied that [DET] has reasonable grounds to apprehend that one or both children will continue to be exposed to family violence in future by [WWW], pursuant to s10E(1)(b).

No submissions were made regarding the existence of special circumstances that would make the extension of the FVRO for the protection of the children inappropriate. In view of the Family Court orders, and ongoing proceedings regarding the children, and the legislative priority accorded to orders by the Family Court I do not consider that the extension of the FVRO to the children will prevent contact between [WWW] and the children. Rather it will be a matter for the Family Court to regulate any contact in the best interests of the children.

1. The Appeal was commenced by appeal notice filed 8 September 2023. This was within the required 21 days from the date of the Decision.[14] As the Decision was to make a final order, the Appeal is within the appellate jurisdiction of the District Court.[15]
2. On 5 October 2023 the Respondent filed a Notice of Respondent's Intention indicating that she would argue the Decision should be upheld on the grounds relied on by the Magistrate.
3. At a directions hearing on 26 March 2023 the Appellant was given leave to file and serve an amended appeal notice by 26 April 2024. He complied with this direction, filing an amended appeal notice on that date. When the Appeal came on for hearing on 11 June 2024, her Honour Judge Tovey granted the Appellant leave to further amend the grounds of appeal. The final amended appeal notice which was the subject of the hearing before me was filed 12 July 2024 (Amended Appeal Notice).
4. The District Court must decide the Appeal on the material and evidence that was before the Magistrate.[16] The court can give leave to admit other evidence, but only in exceptional circumstances.[17]
5. On 11 July 2024 the Appellant filed an affidavit sworn that date (July Affidavit), together with an application for leave to adduce this further evidence. He needs, and has sought, leave to adduce this evidence. I return to this issue in pt 6.
6. Both counsel for the Appellant and counsel for the Respondent filed written submissions.
7. The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate.[18] The court does not hear afresh all of the evidence.[19] Rather, the Appeal is to be undertaken by way of a re-hearing.[20]
8. In an appeal by way of re-hearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[21] There must be a material error of law, fact, discretion or other miscarriage of justice.[22] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision-maker's reasons for decision to determine whether there has been an appellable error.[23]
9. The onus is on the Appellant to demonstrate the existence of an appellable error.[24] It is not sufficient for the Appellant to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[25]
10. The grounds of appeal set out in the Amended Appeal Notice are as follows:
    1. The Magistrate erred in exercising her judicial discretion by refusing the Appellant's request to remove the Respondent's mother from the back of court during the course of the trial.
    2. The Magistrate erred at law and in exercising her judicial discretion by not affording the Appellant procedural fairness during the course of the trial especially with regards to the Appellant being a self-represented litigant against the Respondent who was legally represented at the time, including as follows:

1. Lack of reasonable opportunity for the Appellant to adduce evidence and /or cross examine the Respondent; 2. Allowing the Appellant Respondent to admit into evidence, documents which were incomplete and therefore inadmissible;

1. Not affording the same opportunities to the parties in the presentation of their respective cases. 3. The Appellant was unwell at the time of the trial which negatively impacted on his ability to follow the proceedings and present his case in circumstances where the Appellant was, shortly after the trial, diagnosed with Stage 4 Follicular Lymphoma Cancer and had symptoms consisted with suffering from cancer at the time of the trial. 4. The Magistrate erred at law by making the final order for a duration of 5 years and / or extending the order to include the children in circumstances where:

1. With respect to the children, issue estoppel applies given the Respondent has previously applied to the Perth Magistrates Court and the Children's Court seeking the Children be protected by a Family Violence Restraining Order, against the Appellant, and was not successful after a Cancellation hearing with respect to a Final Order which relied on similar grounds and events as those raised at trial; 2. The initial interim order did not include the Children;

1. The Appellant was not afforded an opportunity to lead evidence with respect to the Children during the course of the hearing; and

1. The Magistrate only announced her intention to include the Children on the order on the last day of trial. 5. Due to the events raised in the above grounds, the Appellant was not afforded natural justice during the course of the trial before the Magistrate which resulted in a miscarriage of justice and an error at law.
2. At the hearing on 1 August 2024, counsel did not press ground of appeal 2(b).[26] This was on the basis that ROA s 44A(1)(a) provides that at a final order hearing, the court is not bound by the rules of evidence.
3. As to ground of appeal 3, at the hearing on 1 August 2024 I inquired of counsel for the Appellant as to whether at any point during the hearing he raised his health issues with the Magistrate and sought an adjournment. Counsel informed me that he did not. There was thus no relevant decision of the Magistrate which could be the subject of appellate intervention. On that basis, counsel did not press ground of appeal 3, so it falls away.[27]
4. Nor did counsel press ground of appeal 4(a).[28] That concession was properly made. The essence of an issue estoppel is that the same factual question was finally determined on the prior occasion.[29] In the context of an application for an FVRO, even if facts A, B and C were considered in a prior application, once facts D, E and F (which arose later) are added to the factual matrix, the factual question for determination is necessarily different.
5. At the hearing before me counsel grouped the remaining grounds into two main themes. The first main theme is that the manner in which the Magistrate generally presided over the trial gives rise to concerns of both a denial of a reasonable opportunity to present his case and bias. Counsel submitted that the Magistrate 'was inconsistent in the exercise of her judicial discretion', echoing what is in ground of appeal 2.[30] However, it was apparent from submissions that this was a reference to the way in which the Magistrate treated the Appellant in contrast with the Respondent. This theme reflected in the substance of the concern underpinning grounds of appeal 1, 2(b) and 2(c). It is also evident in the evidence set out in the July Affidavit. The submissions do not in substance raise an issue of appellate intervention on the basis that in making the Decision, the Magistrate erred in the exercise of her discretion in the sense outlined in House v The King.[31] Rather in substance it is a submission that in treating the Appellant differently from the Respondent, the Magistrate both denied him procedural fairness and appeared to be biased against the Appellant.[32] A decision which is tainted by bias is a breach of procedural fairness which is in turn an error of law justifying the decision being set aside.[33]
6. The second related to the Magistrate's decision after the Respondent's case had closed, and before the Appellant commenced his case, to consider whether the children should in included in the terms of any order made. The Appellant says he was not allowed to make opening submissions, ask questions or lead evidence in relation to the children. This theme picks up grounds of appeal 2(a), 4(b), 4(c) and 4(d) and 5. It raises the issue as to whether the Appellant was denied procedural fairness on the basis that the case he had to meet changed during the hearing to his prejudice.
7. This gives rise to six issues for determination:
   • Should the Appellant be given leave to adduce any additional evidence?
   • Did the Magistrate deny the Appellant procedural fairness by declining to exclude the Respondent's mother from the public gallery?
   • Did the Magistrate deny the Appellant procedural fairness in the manner in which the trial was conducted?
   • Was the Magistrate biased against the Appellant?
   • Did the Magistrate deny the Appellant procedural fairness by changing the case he had to meet?
   • What final orders are appropriate?

These issues are considered in pts 6 to 11. Before looking at these individual issues, it is necessary to review the manner in which the trial proceeded in some detail, which is undertaken in pt 5.

1. The trial commenced with the Magistrate inviting counsel for the Respondent make an opening address. The two salient points of the opening address for the purposes of the Appeal are that counsel for the Respondent:[34]

(a) only sought a final FVRO in favour of the Respondent;

(b) but did seek an order for five year's duration.

1. Once counsel for the Respondent had finished her opening address, the Magistrate explained to the Appellant in some detail the manner in which the trial would proceed. Her Honour explained she would be giving the Appellant the opportunity to make an opening statement, 'to sort of sketch what your case is about'. After that, each party would call their witnesses. They would first be questioned by their own party or lawyer. The party who is calling that witness 'will ask open-ended questions without suggesting the answer'. The other party or their lawyer would then be entitled to cross-examine the witness. 'That means put questions or propositions to them which challenge any evidence they've given that you disagree with and, importantly, put your case to them so that they have an opportunity to respond to that'. The party who called the witness would then be given the opportunity to re-examine the witness, to '[g]ive them an opportunity to add to explain any ambiguity which might have emerged during the course of cross-examination'.[35]
2. The Magistrate then explained that after the Respondent's witnesses, he would be given the opportunity to give evidence and call evidence. If he wanted to give evidence, he would have to go first, then any other witnesses.[36]
3. At the end of the evidence, each party would be given an opportunity to make a closing statement: 'Now, a closing statement, the purpose of that is to provide an opportunity to each party, really to persuade the court that the evidence or particular parts of the evidence is such that the court should make a decision in their favour'. The Magistrate then added that she would repeat the explanation at different stages, 'so that you are able to follow the procedure and engage properly in the presentation of your case'.[37]
4. The Appellant then proceed to make an opening address.[38] Among other things, the Appellant told the Magistrate that he was going to lead evidence to show how the interim FVRO was being used to stop him from seeing his children. The following exchange then occurred:[39]

[WWW]: And the evidence that I'm going to lead today is going to show how this order is being used to stop me from seeing the children and has been used historically. The - - -

HER HONOUR: The children aren't on this order, though, are they?

[WWW]: The children were on the initial application - - -

HER HONOUR: Yes, I know.

[WWW]: - - - and then they were taken off.

HER HONOUR: But they're not on this order - - -

[WWW]: Not on this order.

HER HONOUR: - - - are they?

[WWW]: No.

HER HONOUR: No.

[WWW]: That's - that's correct.

HER HONOUR: Okay.

[WWW]: However, your Honour, the - - -

HER HONOUR: So the - strictly speaking, they are not relevant to this hearing, are they?

[WWW]: The conduct of [DET] is consistent with the conduct of [DET] in withholding the children in the other courts. So it's a restraining order one way or another - the children - whether the children are on it or not - there is a pattern of behaviour from [DET] in seeking orders to do anything and everything possible to stop me having a relationship with the children. And I will lead evidence to that.

1. The Appellant went on to refer to previous applications made by the Respondent seeking restraining orders, including the one in which he had agreed to the CAO. He identified that some of the conduct he anticipated would be referred to at the trial predated those proceedings. The Respondent had the opportunity to raise these issues at previous hearings and had not done so. He concluded:[40]

She has had the opportunity to present that evidence in a court of law. Hasn't done so. Essentially, the conduct agreement has expired, and then she has taken what I would consider to be vexatious action in order to create another order. And the evidence that I intend to present today, lots of material evidence that contradicts lots of statements in lots of different courts. Lots and lots and lots. In fact, a full file.

There would be in excess of three or four hundred documents that I'm in possession of that - that where [DET] has made contradictions to statements or affidavits that she has filed in court. There is a pattern of - of dishonesty and deceit, and hopefully, your Honour, the evidence that I lead today will present that and the application will be dismissed.

1. Once the opening addresses had been concluded, the Magistrate made an order that anyone in the courtroom who was going to be called as a witness was required to step outside until called to give evidence.[41]
2. In response, the Appellant asked the Magistrate whether the Respondent's mother could be excluded from the courtroom. Specifically:[42]

[WWW]: It's just, I'm not sure whether it's possible, but I'm a bit uncomfortable with [DET]'s mother being in the room. She's a party to other proceedings. Has been. Currently there are considerations for criminal charges in relation to perjury that she has committed in the Children's Court. And there's also other matters that are legal matters are being considered.

[WWW]: There's considerable aggravation. The children are currently staying with the grandmother. The grandmother is a definitely an influencing factor in this matter, and I intend to present some evidence that will do that.

HER HONOUR: Right.

[WWW]: I'm simply just not comfortable with having her in the room, looking over my shoulder.

1. The Magistrate did not call on counsel for the Respondent to make submissions. The Magistrate then declined to order the Respondent's mother to leave to courtroom, giving the following reasons:[44]

HER HONOUR: Okay. Thank you. So the court has to balance on the one hand [DET]'s mother being present in court, as I understand it from [DET]'s counsel, by way of support for [DET]. And the court, in effect, has been told that [DET]'s mother is not to be a witness. So this is an open court. We live in a system where justice is supposed to be open. And therefore, people are entitled to come into the public gallery and watch what goes on.

However, what's effectively said in this case by [DET] is the mother is her support person in a family violence trial. On the other hand, [WWW] says he's not comfortable because from his point of view, [DET]'s mother has been a witness in other proceedings. She's under - well, she's subject to a complaint that he has made to the police. And in summary, he's not comfortable with her being in court. Okay. So the relative considerations have to be balanced and at the end of the day, the court has to ensure fairness to the parties and justice and that that is done in public.

I note this is a family violence trial. I consider that it's appropriate that a party to a trial like this would have someone present in court which might be described as a support person. In this case, it's the mother of [DET]. [WWW] is not happy about that. He says he's not comfortable. Well, I regret that, and that is unfortunate, however, I do not propose to make an order which would exclude [DET]'s mother from simply sitting in the public gallery, watching what's going on.

And that has particular significance because she is here as a support person. Now, having said that, it's very important that it's understood - and this is by everyone -this is a formal proceeding. I will not allow commentary, outbursts, interjections, you know, obvious face pulling and anything which would disrupt the proceeding. In saying that, I'm not suggesting that [DET]'s mother in law would do that. Rather, it's a point that I'm making for everyone's benefit. Okay.

1. The Respondent then gave evidence-in-chief. This took the whole of the first day of the trial (11 October 2022) and part of the second (12 October 2022).
2. At the conclusion of the sitting day on 11 October 2022, the Magistrate gave the Appellant some further information about cross-examination:[45]

HER HONOUR: Yes, fine. Okay. Good point. Now, [WWW], by the sound of it, you're going to be starting your cross-examination quite early on tomorrow, okay. I want you to prepare for that overnight, if you haven't already, but now you've heard the evidence.

[WWW]: Sure.

HER HONOUR: Right. So preparing for it involves thinking about what has been said, right, what evidence has been produced, focusing on any part of the evidence which you say is inaccurate, incomplete or anything else that you don't agree with and preparing questions to challenge the truth or otherwise of that, and also preparing questions to put your version to the witness. Okay.

[WWW]: Sure.

HER HONOUR: What you need to avoid is that you don't raise something which is important with the witness and then when you get to present your case, suddenly out of left field you start giving evidence about something I've never heard of before, right, because at that point, if that happened - I'm not saying it's going to, but if it happened, the rules are that either I won't allow the evidence in or I will give it less weight because [DET] hasn't had an opportunity to respond to it. Right, that's all part of the fairness principle in court.

Okay. So, yes, I suggest you come along with a list of questions. Now, you've seen the way counsel for [DET] has done it this morning. If there's documents that you want to put to the witness as part of your cross-examination, then you come along with spare copies of the document so that the witness can look at a copy, counsel can look at a copy and I can look at a copy sort of all live while you're questioning and the witness is answering.

Okay.

[WWW]: Yes, your Honour.

1. At the outset of the cross-examination on 12 October 2022, the Magistrate considered whether to allow the Appellant to ask the Respondent questions directly in cross-examination. This inquiry is required by ROA s 44C (which I quote at [147]). The Respondent informed the Magistrate that she would feel intimated if the Appellant asked her questions directly. The Magistrate then ruled that she would put the Appellant's questions to the Respondent.[46] That option was expressly contemplated by ROA s 44C, and no issue is taken with this ruling of the Magistrate in the Appeal.
2. As might be expected using the process in ROA s 44C, the cross-examination was at times somewhat disjointed. At an early point, this exchange occurred:[47]

[WWW]: See, this is all throwing me with all this to and for explaining.

HER HONOUR: Well, we have to work with it.

[WWW]: Yes, I know.

HER HONOUR: It's not my discretion or my choice. It's Parliament's rules.

[WWW]: Sure

1. As might be expected, on repeated occasions, the Magistrate engaged with the Appellant to ensure that the question was clear, before putting it to the Respondent.[48]
2. On repeated occasions, the Magistrate reformulated the Appellant's question, for example, to remove an ambiguity or, where it was a compound question, to break it down into a number of separate questions or to make it more precise.[49] For example:[50]

[WWW]: The next question is many allegations were made, including point fingers in gun for hours, screaming from another room, threats and allegations of putting you in a barrel of acid, using bleach, [DET], and many others. I put it to you, [DET], that these incidences that you state happened whilst we were in a relationship. And given that we're no longer in a relationship, have been separated for some three years, there's absolutely no opportunity for any of these things that you're claiming to have happened in the past to repeat themselves.

HER HONOUR: Okay. So I'm just going to pause right there. Right. So at some point if you disagree with the evidence that the witness has given, right, the statements that you've just referred to and just grabbing them altogether. Right. If you disagree with the evidence she has given about you screaming at her, the threats made and she has given a lot of detail. Right.

[WWW]: Sure.

HER HONOUR: If you say she's not telling the truth, you need to put to her, "You said X. That's wrong," or, "You're lying," or, "You're mistaken." You have to challenge it.

[WWW]: Okay.

HER HONOUR: Okay. I'm not saying you have to do it right now, but I'm just wanting you to understand that the way this process works is, unless you put to her your version, right.

[WWW]: Sure.

HER HONOUR: Then I may not, if you subsequently give evidence which contradicts it, I may not accept what you say.

[WWW]: Sure.

HER HONOUR: Right. Because the whole principle of fairness here is you must put your case to her, so she gets a chance to answer it. Right. So you can come back to that later. I will now put the proposition that you have just referred to. So it's being put to the witness that any behaviour which you have described as occurring during the course of the relationship, such as screaming abuse, making threats to harm. That behaviour, if indeed it occurred, happened during the course of your relationship while you were living together and not any of that type of behaviour since; do you agree with that?---No.

Okay. Do you agree with the proposition that you've been separated for three years now?---Yes.

Now, do you want to go back and reformulate that last question given her answer.

[WWW]: Your Honour, I'm really struggling to keep a grip with all the toing and froing as to where I'm at, even though I'm working through it. It's very hard to -without being able to do it.

HER HONOUR: Well, we've just got to do it.

The final comment of the Appellant should be noted, that he was finding the process difficult.

1. On repeated occasions, the Magistrate told the Respondent not to make comments or snide remarks when asking a question.[51]
2. On occasions, the Magistrate refused to allow the Appellant to ask rhetorical questions[52] or ask the Respondent a question which required her to give evidence about what was in his mind or what he knew.[53] The Magistrate on occasion also refused to ask the Respondent the question put by the Appellant on the ground that it was not something that the Respondent could give evidence about.[54]
3. On other occasions, the Magistrate pulled up the Appellant for trying to ask a follow-up question that was not accurately based on the previous answer, encouraging him to listen to the answer.[55]
4. On many occasions, the Magistrate queried the relevance of the questions the Appellant was seeking to ask, and, if not persuaded, disallowed questions or assisted the Appellant to reformat the question.[56]
5. On one occasion, the Magistrate told the Appellant not to interrupt the Respondent whilst she was giving her answer.[57]
6. The Magistrate declined to allow the Appellant to repeat questions which had previously been asked and answered.[58]

56 On one occasion, the Magistrate inquired whether the Appellant wanted to ask a further question when it appeared that a point had been missed.[59] At other points, the Magistrate explained to the Appellant how to go about asking questions in order to make the point he was trying to make.[60] Or would clarify with the Appellant the point he was trying to make.[61]

1. Having said all that, for much of the time, the Appellant and Magistrate were in a rhythm in the cross-examination in which the question by the Appellant, question by the Magistrate and answer flowed.[62]
2. At one point, the Appellant requested the Magistrate to obtain a copy of the transcript from an earlier court hearing on 9 October 2019 relating to the earlier application by the Respondent for an FVRO. The Magistrate declined to do so, instead informing him that he had to put the document to the witness and ask her questions about it.[63]
3. At another point, the Appellant sought to question the Respondent about her compliance with Family Court orders. The Magistrate requested the Respondent to step out of the courtroom, which she did. The Magistrate asked the Appellant to explain the relevance of the question, an objection which counsel for the Respondent reiterated. Her Honour's ruling is indicative of the approach taken more generally in which the Appellant was allowed 'a degree of leeway':[64]

So in considering a ruling on this issue I've reminded myself of the objects of part 1B family violence restraining order of the Restraining Orders Act 1997. I don't propose to read them out, but there is a risk here that the trial is turned into a process of examining compliance with a Family Court order so far as it pertains to the children.

Yes, there was evidence that related to contact by [WWW] with the children, so that evidence was led yesterday. However, it didn't traverse the issue of contact per se, but rather, whether there was behaviour in connection with that that the court may be asked to find constitutes family violence of pattern of behaviour amounting to family violence.

I do not consider that the issue of withholding contact or that allegation and the issue of alleged failure to comply with Family Court orders by [DET] is relevant to this case. This case is about whether there has been behaviour which might be properly constructed as family violence. And if so, what, when, how, so that findings of fact can be made and the court can determine if a family violence order should be made, that is, a final order.

And if so, the terms of such an order. Now, a degree of leeway will be allowed, noting that [WWW] is unrepresented and sometimes it's difficult to draw a line. So the effect of what I just said, [WWW], is the issue which you've raised about [DET]'s withholding contact and alleged breaching of Family Court orders is not relevant. So I'm not going to allow you to go down those lines or paths, if you like. Okay. So let's have the witness back and [WWW] can resume his cross-examination.

1. At another point, the Magistrate took issue with the Appellant locking eyes with the Respondent when asking a question, stating:[65]

HER HONOUR: You can look at me. No, no. Every time you ask a question you're looking over there at her, trying to lock eyes with her. Well, I won't have it. Right. Because if you keep doing that, you will be in a separate room and we will have a video link. Do you understand what I'm saying?

1. On the other hand, the Magistrate also had to intervene in relation to the answers being given by the Respondent. She was told on a number of occasions to just answer the question that was put to her and not use it as an opportunity to say what she would like to say, noting the opportunity of her counsel to ask questions in re-examination.[66] At other times, the Magistrate stopped the Respondent from giving answers which went beyond what she could give evidence about.[67]
2. Another recurring theme in the cross-examination was the Magistrate telling the Appellant not to waste time and to get to the point.[68] For example:[69]

HER HONOUR: ... So in general terms, [WWW], I'm concerned that we're wasting time. Okay.

[WWW]: Okay.

HER HONOUR: So I want you to be clear that when you're asking questions, it's about issues that are relevant and have a proper purpose.

[WWW]: Can I explain where I'm going with it.

HER HONOUR: Yes.

[WWW]: Okay

1. Close to the end of the sitting day on 12 October 2022, the Magistrate inquired of the Appellant how much longer he thought he would be. The Appellant replied that it could be another few hours.[70] The Magistrate told the Respondent that she could not discuss the detail of what she was being asked in cross-examination with anyone, including her counsel.[71] The Magistrate also reminded the parties that the interim FVRO remained in place.[72] After a discussion with the Appellant and counsel for the Respondent, the Magistrate adjourned the trial to 22 March 2023.
2. The trial reconvened on 22 March 2023. At the outset of the hearing, counsel for the Respondent sought leave to give further evidence about some breaches of the FVRO which the Respondent says had occurred since the adjournment of the trial on 12 October 2022. After hearing from the Appellant, the Magistrate allowed this evidence to be interposed in the cross-examination.[73]
3. The Respondent gave evidence about two incidents which she asserted were in breach of the interim FVRO. The first was that she had received two packages, which she thought contained Christmas presents, the sender of which was identified to be the Appellant's father. The information on the package contained a mobile number of hers which she had endeavoured to keep confidential, and which she had not disclosed to any of the Appellant's family. The handwriting on the address information looked to her as if it was that of the Appellant, different to the signature of the sender. Inside the package there were packages which said the name of each child and 'grandad', which the Respondent also said appeared to have been written by the Appellant. The Respondent said that she believed that the Appellant had a hand in organising the parcel in breach of the interim FVRO. The Respondent said that she felt like the Appellant was letting her know that he had her new phone number. 'It was just another way of saying he will get me'.[74]
4. The second was her police statement in relation to breaches of the FVRO, made on 4 March 2023. This related to calls which the Respondent says that the Appellant made to her in breach of the interim FVRO. The statement was tendered.[75]
5. The Appellant then continued with his cross-examination of the Respondent. The dynamics which I identified at [48] - [62] continued.
6. Just before breaking for lunch, the Magistrate gave the Appellant a direction to finish his cross-examination that afternoon. It was in the following terms:[76]

HER HONOUR: Okay. Now, we're going to resume here at 2.15. [WWW], what I want you to do during lunchtime, to the extent that you haven't done already, is to make sure that you've got a plan for the questions you're going to ask the witness so that we can efficiently get through it all after lunch. And if there are documents you're going to put to her, that you've got all those in order, you've got extra copies, so that we can just get through it all efficiently. I expect that you are going to finish cross-examining the witness before the end of the day. Right. You have had plenty of time. Your cross examination commenced on 12 October. You've now had half a day.

Right. I expect - no, I'm giving you a direction under the Magistrates Court Act. You have the balance of today to finish your cross-examination. I'm not suggesting you should take all that time. But if you were thinking that it's not going to be enough, I'm giving you warning now. That's what you're going to get. Right. We're going to finish court today around about - well, not later, I should say, than 4.15. Okay. So you're going to have two hours this afternoon. And you need to make the best use of that. Okay?

[WWW]: Yes, your Honour.

1. The Appellant resumed his cross-examination of the Respondent after lunch. At some point just before 4.34 pm, the Magistrate told the Appellant that this cross-examination was completed, having given him a five-minute warning. The court adjourned for the day at 4.34 pm.[77]
2. On 23 March 2023, the trial recommenced just before 11.00 am. The Respondent was re-examined until just after the luncheon adjournment.
3. The Respondent then called three further witnesses. The first was MS, who was a friend of the Respondent's mother. She gave evidence about some text messages she received from the Respondent in relation to an incident in which the Respondent was concerned that one of her daughters had ingested Ratsak. She ended up going with the Respondent to the hospital. MS also gave evidence about other conversations she overheard the Appellant have with the Respondent.
4. The Appellant cross-examined MS directly, though in a manner that required intervention by the Magistrate on a number of occasions.
5. The second witness was AP, who is the Respondent's younger sister. She gave evidence about:

(a) an incident between the Appellant and Respondent at a wedding in 2016;

(b) some other occasions when she had either heard or seen the Appellant be aggressive towards the Respondent;

(c) an incident which occurred between the Appellant and the Respondent at the Family Court in November 2020;

(d) an incident which occurred between the Appellant and the Respondent at the Family Court in March 2021; and

(e) a number of occasions in which she overheard the Appellant's conversations with his children on court appointed telephone calls.

1. The Appellant cross-examined AP directly, again in a manner that required intervention by the Magistrate on a number of occasions.
2. The third witness was KH, who was the Respondent's older sister. She gave evidence about:

(a) an incident between the Appellant and the Respondent at a family dinner in late 2018; and

(b) her interactions with the Appellant on an occasion just after the Respondent's first child was born in 2015 in which the Respondent had developed mastitis and a rash.

1. As with the other witnesses, the Appellant cross-examined AP directly, but in a manner that required intervention by the Magistrate on many occasions.
2. At the conclusion of proceedings on 23 March 2023, counsel for the Respondent advised the court that the Respondent's case was complete. Her Honour had a conversation with the Appellant as to how long he thought his case might go for. The Magistrate arranged to start court at 9.30 am the following morning in an endeavour to finish the trial that day.
3. At the commencement of the hearing on 24 March 2023, the Magistrate advised the parties of two specific matters on which they would be invited to make submissions. Given the centrality of this passage to the Appeal, I need to quote it in full:[78]

HER HONOUR: ... Now, just before I ask [WWW] to open his case, right, there are a couple of issues that I just want to foreshadow with the parties, so that if we have any breaks or whatever during the course of the day, you can be thinking about it.

I'm expecting that we will get to closing submissions today, and in anticipation of that, I want to flag with the parties that, for the purposes of consideration and decision, it would be helpful to get submissions from the parties, not just about the evidence and whether an FVRO should be made, but also issues like, if an order is made final, the length of the order, any particular provisions in the order.

So, of course, there is an interim order, and that might be considered the starting point if a final order is to be made, but having regard to the evidence in this case, I'm trying to ensure the parties understand that submissions about the content, so restraints, would be a good idea from each party.

Now, there's one other issue that I want to raise regarding the content of any order, if one is made. The interim order as it stands - and now, do correct me if I'm wrong, but as it stands, does not - is not extended to include the children. Now, does that accord with everyone's understanding? Yes, good. Okay. So that is another issue that I want to invite the parties to make any submissions about.

To the best of my recollection, there has been no evidence, and the court hasn't been told, whether there is currently an FVRO in place which is for the protection of the children, so it might be that this issue is already dealt with, but I'm not aware of that, so that's really an invitation to the parties to include that issue in their submissions, if any party sees fit. Okay. Now, just before we move to [WWW]'s case, is there anything of a housekeeping nature that needs to be covered at the moment? No.

TYSOE, MS: Not at the moment, your Honour.

HER HONOUR: Okay. [WWW]?

[WWW]: No, your Honour.

HER HONOUR: No. Okay. And are you ready to proceed with your case?

[WWW]: Yes.

1. The Appellant then gave evidence. The Magistrate began by asking some background and context questions of the Appellant. She then invited the Appellant to give evidence regarding the Application. The Appellant was permitted to refer to a document which he took with him into the witness box containing a series of points that he wished to cover when giving evidence. The Magistrate's interruptions were minimal, for example to:

(a) constrain the Appellant to giving evidence on matters within his personal knowledge, at one point informing the Appellant of the substance of the rule against hearsay and directing him to confine his evidence to matters within his personal knowledge;[79]

(b) request the Appellant to be more specific;[80]

(c) request the Appellant to point out the particular portions of documents relied on;[81]

(d) inquire of the relevance of the evidence that was being given;[82] and

(e) clarify the evidence that the Appellant was then giving.[83]

1. At one point counsel for the Respondent objected to the Appellant giving evidence on a matter which had not been raised with the Respondent in cross-examination. This concerned a pharmacy script which the Appellant said that the Respondent had asked him to pick up. The objection was on the basis that the Respondent had not been cross-examined about her diagnosis or medication. The Magistrate explained the objection in the following terms:[84]

HER HONOUR: So I'm going to explain the objection that has just been made, [WWW]. So the objection is that you're now giving evidence about something which was not the subject of cross-examination of [DET], that is, she has not had the opportunity to respond to what you're now saying, right? That means that - well, firstly, there has been unfairness to [DET] and, for that reason, there's a question about whether the evidence should be received and, if so, the weight that's given to it, okay? Now, for a moment we're stopping you in your capacity as a witness giving evidence, right, because you're also a party. That objection has been made. Do you want to say anything in relation to that objection?

The Magistrate gave the Appellant 'a little leeway' to continue with the evidence, observing that the weight that would be given to the evidence was a matter for later consideration.

1. The Magistrate adopted this course on a number of other occasions in response to objections by counsel for the Respondent on the basis that the issue had not been raised in cross-examination.[85]
2. On one occasion, the Appellant was not permitted to give evidence that he had not cross-examined the Respondent about. This concerned spending by the Appellant from the joint bank account, and was the subject of objection by counsel for the Respondent.[86] Her Honour concluded:[87]

HER HONOUR: So you're not going to be allowed just to continue down that track. It's unfair to [DET] for you suddenly to raise that particular issue without giving her a chance to respond to that in her evidence.

1. At one point, the Magistrate tried to focus the Appellant on the importance of him giving evidence as to his version of the events in issue:[88]

HER HONOUR: So where are you going with this? Can we sort of keep to what's relevant with respect to the family violence application. So you have heard the evidence of [DET]. Right. You have cross-examined her about a lot of issues. Right This is your opportunity to give evidence of issues, incidents, whatever you say has happened, particularly where you say it was different to the version given by [DET]. Right. If you don't give evidence about something, right, which has been the subject of evidence by [DET], then it may be the court accepts [DET]'s evidence because there's no reason - no evidence contrary to it. Okay?

[WWW]: Yes, your Honour.

1. At the mid-morning break, the Magistrate indicated her expectation that the Appellant would complete his 'evidence-in-chief within a reasonable time once we resume and certainly before the court rises for lunch'.[89]
2. And then shortly after the hearing resumed, this interchange occurred:[90]

HER HONOUR: We are now on to day 5. Right. Now, okay, there has been some interruptions and other things, for which the parties to this case are not responsible, but there has been a lot of time dedicated to this case and I'm concerned. I've given you a number of warnings, chats, whatever, about how you need to reframe your evidence.

This looks like time wasting. So you need to persuade me that it's relevant to give evidence about the detail of the conduct agreement order. How is it relevant?

[WWW]: So it - it's relevant that it was agreed on the basis that the children weren't - - -

HER HONOUR: No. You were about to give some evidence about the terms of it. So why is it - that was made in 2019, wasn't it?

[WWW]: Yes. The - the terms were agreed. Where I was going is - is that it - the terms were agreed on the basis that the children didn't form part of the order. So what - what has subsequently happened is [DET] has then further down the track gone to the Children's Court and the- the magistrate in that hearing had stated as a qualified statement she didn't see that there was any evidence that [DET] had presented in that proceeding that warranted

- - -

HER HONOUR: Okay. I'm not interested in - - -

[WWW]: Sure.

HER HONOUR: - - - what the magistrate said. Her view is not relevant for the purposes of this case. So can you move on to something which is relevant - - -

[WWW]: Okay.

1. Towards the end of the Appellant's examination-in-chief, the Magistrate specifically drew the Appellant's attention to the documents which had been marked for identification, informing him that they needed to be exhibited.[91] Her Honour then took the Appellant through each document with the outcome that each MFI became an exhibit.
2. Fifteen minutes before the luncheon adjournment the Magistrate told the Appellant that he had 15 minutes to complete his evidence-in-chief and suggested that he prioritise the most important things he wanted to give evidence about.[92] The Appellant completed his evidence-in-chief before the luncheon adjournment.[93]
3. Her Honour then reiterated the matters raised at the commencement of the day's proceedings that day:[94]

HER HONOUR: Okay. So just so everyone is clear about what the plan for this afternoon is, we're going to resume at 2 o'clock with Ms Tysoe cross-examining [WWW].

Right. And after that you're not intending to call any witnesses, are you?

[WWW]: No, your Honour.

HER HONOUR: Okay. So then we're going to move to closing submissions - right - and the plan is that both parties will do their closing submissions orally - right - so verbally in court this afternoon and that will be an opportunity for each party to persuade the court that the evidence and the legal foundation is such that in the case of [DET] a final order should be made. In the case of [WWW], that the final order should not be made.

Okay.

So it might be an opportunity to draw the court's particular attention to certain parts of the evidence, and as I foreshadowed, I'm interested to know about what -receive submissions on length of any order that may be made, any particular restraints that ought be included in the order, and the court wants to be updated about what the situation is regarding the children, whether they're subject of some other order, and if not whether [DET] seeks to include them and if so why would that be on the basis of the evidence, and [WWW] can make submissions if that is [DET]'s submission.

Okay. So when we get to closing I will start with [DET] and then hear from [WWW]. Okay. And if issues are raised in [WWW]'s closing which have not been canvassed in [DET]'s closing, I will give Ms Tysoe a brief opportunity to respond. Okay. Right.

Okay. So we will get back here for a 2 o'clock start.

Okay. Thank you.

1. After the luncheon adjournment, the Appellant was cross-examined by counsel for the Respondent. There were limited interventions by the Magistrate, typically to request the Appellant to listen to the question and/or just answer it.
2. The Appellant was invited to give evidence in re-examination, but declined to do so.
3. The Appellant did not call any other evidence.
4. There was then a short break during which counsel for the Respondent sought her instructions of the scope of the order sought. Her response was:[95]

TYSOE, MS: So in terms of the duration, of course, my client is seeking that your Honour make an order protecting her today. She is seeking that it have a duration of a lifetime or as close to as your Honour would be willing to grant. A large part of that, I understand, is the extensive number of proceedings that these parties have been involved in in the Family Court, in civil courts around defamation, in disputes around child support through the Child Support Agency and Children's Court for restraining orders and now, I understand, the second time around for a restraining order.

I understand a large part of that is also the persistent breaches which have continued even throughout these proceedings on my client's evidence. My client is also seeking that both of the children, [ECW] and [OAW], be included on the order.

HER HONOUR: What's the current position?

TYSOE, MS: They're not currently included on the order, your Honour. It's not currently extended - - -

HER HONOUR: Yes. I understand that.

TYSOE, MS: - - - for their benefit.

HER HONOUR: But is there - - -

TYSOE, MS: There is no current order in place for the children.

...

TYSOE, MS: And so, your Honour, if the children are included or if they're not included, effectively, what my client is seeking is is that there's currently a requirement that [WWW] not approach within 10 metres of her and she would seek that that be a greater distance.

She has suggested 100 metres. We haven't discussed that extensively. Again, I - - -

HER HONOUR: Sorry. Did you say 10 metres?

TYSOE, MS: It's currently 10 metres, I thought.

1. Counsel for the Respondent also requested the Magistrate to make a specific order preventing the Appellant from denigrating or speaking in negative terms about the Respondent to the children.[96]
2. Counsel for the Respondent then made closing submissions. The Magistrate specifically invited the Respondent to make submissions about the length and particular restraints which should attach to an order, should one be made.
3. The Magistrate then invited the Appellant to make closing submissions, reiterating her earlier observations about their purpose.[97]
4. The Appellant commenced his closing address by dealing with the issue of the children. Again, given the significance of this topic to the appeal, it is necessary to quote what he said in full. The essence of his submission is that there was no evidence that the children were exposed to family violence after the parties separated, and potentially only two instances before the separation in which he raised his voice or yelled at the Respondent:[98]

[WWW]: Firstly, your Honour, I would like to address the matter of the children. Of course, I would request that there is certainly no order in relation to the children. The matters in relation to family violence are alleged family violence that have included the children. They have both been before the Magistrates Court and the Children's Court and the Children's Court, that went to trial and was subsequently dismissed and I put it to this court that it has already been through judicial process and that process has established that [DET]'s evidence was not, in fact, correct and the court subsequently issued an order cancelling the restraining order.

I also note that [DET] has taken out a restraining order that included the children in the Magistrates Court once before and whilst that didn't proceed in its entirety, it was (indistinct) with a conduct agreement order, that was certainly, in my view, through circumstances - unfortunate circumstances or what have you as opposed to anything else. The magistrate in that case made it very clear as she was giving directions as to what her thoughts were. That - she indicated that

HER HONOUR: I can't take account of that.

[WWW]: Okay. So the second - it has been in two courts, obviously. Cancelled in the Children's Court.

HER HONOUR: No. Sorry. And there's other thing I just want to ask you about. So you were saying that the family violence order made in the Children's Court was cancelled.

[WWW]: Correct.

HER HONOUR: Right. But it - there isn't really any evidence that enables me to draw any inferences from that, is there?

[WWW]: Well, in the application in this - for this application - for this hearing there was no application to include the children. Yes.

HER HONOUR: Okay. So you're there referring to the application that has led to this trial.

[WWW]: Correct.

HER HONOUR: You're saying it didn't specifically refer to the children.

[WWW]: Correct.

HER HONOUR: Okay. The application that was made that has led to this trial, that was made on 29 January 2021 and was the Children's Court FVRO proceedings still on foot?

[WWW]: Yes. I think it was - - -

HER HONOUR: Yes.

[WWW]: - - - December 2021. I'm starting to forget the years.

HER HONOUR: Okay. Yes.

[WWW]: But - yes - that may have been the case.

HER HONOUR: Okay. Well, that would suggest that at that point in time, that is, when this application was made, 29 January 2021, that the children weren't included in this application because at that stage they were protected by an order from the Children's Court.

[WWW]: Okay.

HER HONOUR: Yes.

[WWW]: I would also bring to the court's attention that [DET] signed a conduct agreement order or agreed to the terms of a conduct agreement order which didn't include the children in the Magistrates Court previously. So my - - -

HER HONOUR: Well, I can't draw any inferences from that, can I? What inferences can I draw?

[WWW]: Well, [DET] had the option to proceed, not to agree to the conduct agreement order.

HER HONOUR: Yes. But I can't draw any inferences about why [DET] didn't seek to include or indeed why the children weren't included in that order.

[WWW]: Okay.

HER HONOUR: Can I? This is a question.

[WWW]: I - - -

HER HONOUR: This is a point at which you make submissions and I can raise questions about that so that we can discuss it.

[WWW]: I would suggest there was certainly no evidence in this hearing that related to the children.

HER HONOUR: You're saying there was no evidence in the trial that has happened up to now? You know, two days in October, these three days. You're saying there was no evidence of the children being exposed to family violence?

[WWW]: There was when we were living together, but not for this application. We were separated during this application. So - yes. My submission is that the children certainly - - -

HER HONOUR: So just - let's just be clear about what you're saying. So as I understand what you're saying, you're saying that to the extent there is any evidence that the children have been exposed to family violence, it relate to a period before separation. There's nothing after separation.

[WWW]: Correct.

HER HONOUR: Is that what you're saying?

[WWW]: Yes. Well, I'm not even conceding that. I mean, there were two incidents that I've admitted to, but I'm not at all (indistinct) that the children were exposed to family violence. Definitely not.

HER HONOUR: But you've admitted - - -

[WWW]: But I said there were two - - -

HER HONOUR: - - - there two occasions - - -

[WWW]: There were two occasions - - -

HER HONOUR: - - - when you were shouting.

[WWW]: - - - where I've raised my voice or I yelled at [DET]. So if that would be considered family violence, well then - yes - there are two occasions and I would accept that, your Honour.

HER HONOUR: Okay.

[WWW]: Outside of that, I just don't believe that there has been at all. I think the order - [DET] has used this order as a weapon, not a shield ...

1. The Respondent then moved on to make closing submissions, in more or less the same level of detail as counsel for the Respondent. At points, the Magistrate had to direct the Appellant back to the relevant issues. For example:[99]

HER HONOUR: Okay. So I'm going to repeat - I've said this a number of times during the course of the last few days - this court isn't deciding on contact issues. This is deciding on the family violence order and it has to focus, according to Parliament, on the provisions of the Restraining Orders Act. Right. So this court has to focus on whether there has been family violence, whether there has been exposure of the children to family violence depending on the answers to, you know, question - those questions and others whether there should be a final FVRO and the terms of it. So whether or not your family has had contact with the children isn't something that is relevant.

[WWW]: Okay. Sorry, your Honour. It's notable that [DET] - Ms Tysoe raised the issue of ongoing court proceedings. It is a fact that [DET] was the applicant in the first FVRO. She's applicant in the Family Court. She was the applicant in the Children's Court and she's the applicant in this court. So the ongoing proceedings have been bought on by [DET], not by myself. In relation to the breaches that have been alleged, I think the use - - -

HER HONOUR: Commencing proceedings doesn't - isn't something of itself that is inappropriate. The law provides for applications like this to be made, for parents of children, persons who were in relationships to apply to the Family Court to resolve issues in dispute between them. So of itself these different proceedings don't enable any adverse inference against [DET]. So you need to tell me something further. What's the next step in the logic, you know, so that I can make the finding which, you know, you're seeking?

1. In conclusion, the Appellant said:[100]

[DET] may - has sought a lifetime order in this court and it's also the case that the Family Court - well, potentially (indistinct) as a higher court so my understanding is particularly in relation to the children.

Again, your Honour, I would ask that the court dismiss the order and there would certainly - the children certainly wouldn't form part of any order whatsoever and I think based on the evidence that has been presented on this - and admittedly, I'm not a lawyer, so I've done the best that I can - but I just don't think the allegations that [DET] has made in relation to her application for the restraining order have been met by a longshot.

6. Should the Appellant be given leave to adduce any additional evidence?

1. In order for the Appellant to be granted leave to adduce the evidence in the July Affidavit, he must satisfy the court that exceptional circumstances exist.[101]
2. In Shilkin v Taylor Newnes JA observed of this discretion:[102]

... It is evident that so far as the material in that affidavit is sought by the appellant to be admitted on the appeal, it is in the nature of new evidence, rather than fresh evidence; that is, it is evidence which, with the exercise of reasonable diligence, could have been discovered by the appellant prior to the hearing before the magistrate of the application to set aside the default judgment.

A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal. Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): ...

On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out. ...

1. The Respondent opposes the grant of leave.
2. There are six topics covered in the July Affidavit which raised different issues. Paragraphs 1 to 3 are introductory, so if any leave is granted these paragraphs should be included.
3. The first topic is the Appellant's observations of the interactions between the Respondent and her mother during the final order hearing. The Appellant deposed that, in his view, they were using sign language to communicate with the Respondent was giving evidence (pars 4 to 6). This evidence is sought to be adduced to support the Appellant's contention that he was denied procedural fairness. In my view, it is in the interests of justice for this material to be before this court to provide the evidence necessary to properly assess whether he was denied procedural fairness. The circumstances are sufficiently exceptional to warrant the grant of leave for these paragraphs.
4. The second topic is the Appellant's observations as to the manner in which the Magistrate interacted with him (pars 7 to 10). Again, this evidence is sought to be adduced to support the Appellant's contention that he was denied procedural fairness. For the same reasons as in the preceding paragraph, the circumstances are sufficiently exceptional to warrant the grant of leave for these paragraphs.
5. The third topic is evidence of the Appellant's 'physical and mental struggles' during the hearing and subsequent diagnosis of stage 4 lymphoma follicular cancer on or about 8 December 2023, including medical records (pars 12 to 20, par 26, Attachments P, Q, and R). This evidence goes to ground of appeal 3. As this ground is now not pressed ([29]), there is no exceptional reason to allow the Appellant to adduce this evidence.
6. The fourth topic is the evidence which he sought to adduce, but was not permitted to, at the final order hearing as regards his attendance at the Family Court on 26 March 2021 (par 21, attachments A, B, C, D and E).
7. The fifth topic matter relates to the evidence which he sought to adduce, but was not permitted to, at the final order hearing as regards a previous restraining order proceedings in the Magistrates Court and the Family Court (pars 24 and 25, together with attachments H, I, J, K, L, M, N and O).
8. The evidence covered in both the fourth and fifth topics is sought to be adduced to support the Appellant's contention that he was denied procedural fairness. For the same reasons as set out at [104], the circumstances are sufficiently exceptional to warrant the grant of leave for these paragraphs.

7. Did the Magistrate deny the Appellant procedural fairness by declining to exclude the Respondent's mother from the public gallery?

1. This issue primarily relates to ground of appeal 3, which for ease of reference reads:
   1. The Magistrate erred in exercising her judicial discretion by refusing the Appellant's request to remove the Respondent's mother from the back of court during the course of the trial.
2. The ROA in s 44D specifically provides for a person seeking to be protected by an order to have a support person present in the court:

44D. Support and other persons who may be present

(1) In any proceedings under this Act (including in relation to a hearing in closed court) -

(a) the person seeking to be protected by an order (or on whose behalf an order is sought) is entitled to have 1 or more persons near to provide support; and

(b) the court may permit any person who is not a party to the proceedings to be in court.

(2) A person to provide support is to be approved by the court and is not to be a person who is a witness in, or a party to, the proceedings.

1. By MCCPA s 45(1), all proceedings in the civil jurisdiction of the Magistrates Court are to be conducted in open court unless that Act, the rules of court or another written law provides otherwise. There is no provision to the contrary for final order hearings under the ROA. This rule reflects the principle of open justice at common law.[103] The importance of the principle of open justice was recently reiterated by Lundberg J in Reliance Captial Pty Ltd v Caratti [No 8]:[104]

The starting point in considering any application to restrict the presence of persons in Court is to recognise the fundamental importance of the principle of open justice. It must be accepted as a matter of the common law that justice ought not be administered behind closed doors, and court proceedings must be exposed in their entirety to the cathartic glare of publicity.

Accordingly, the natural and ordinary process which follows when proceedings are commenced in this Court is that the course of those proceedings is a matter of public record, and interlocutory and final hearings are conducted in open court.

...

It is a matter for members of the public whether they wish to attend the Court at any point in time to observe its proceedings. Unless orders are made to restrict access, the proceedings of this Court are open to the public.

1. The MCCPA by s 45(3)(a) gave the Magistrate the power 'if satisfied it is in the interests of justice to do so ... [to] order any or all persons, or any class of persons, to be excluded from the courtroom during the whole of the proceedings, or a part of them specified by the Court'. This also reflects the common law position.[105] So it is clear that the Magistrate had the power to remove the Respondent's mother from the public gallery of the court.
2. At common law, it is for the party who seeks an order excluding a member of the public from the court to justify a departure from the general principle that proceedings at trial in a court are open to the public. The onus is a heavy one.[106] In my view, the position is the same in the exercise of the power in MCCPA s 45(3)(a).
3. At common law, the power to exclude a person from the public gallery can be exercised where justified by the impact on the physical and emotional health impacts on a person who is to give evidence.[107] In this regard, in Reliance Capital, Lundberg J observed:[108]

An aspect of particular and, in my view, legitimate concern which may arise where the presence of persons in court is said to have a significant material impact on a witness, is whether the Court's ability to assess the credibility and reliability of the witness will be negatively impacted in those circumstances. ... [T]he physical and emotional toll on participants in the litigation process is a relevant factor which may be considered in departing from the ordinary rule. Where the toll unfairly and materially impacts the true ability of the witness to present their evidence to the court, some restrictions on the ordinary rule may be warranted. But it demands something more than the adverse personal consequences that arise from the public nature of court proceedings, or the typical stresses of testifying.

1. These comments apply equally to the exercise of the power in MCCPA s 45(3)(a) in the present case.
2. I do note the Magistrate's observation in the reasons for the Decision about the physical environment in which the trial occurred:[109]

The trial proceeded over 5 days in total, the first 2 days in October 2022 and the last 3 days some 5 months later. It proceeded in a very small court room on each day. The parties were in extremely close proximity. At times the tension was palpable.

1. I have at [43] set out her Honour's reasons from not removing the Respondent's mother from the public gallery of the court. The Respondent's mother was not going to be a witness. The primary reason the Magistrate relied on for not doing so was that the Respondent was entitled to have a support person with her given the nature of the proceedings being conducted. This reflected ROA s 44D (which I have quoted at [111]).
2. The ground of appeal has been expressed as an error of discretion. However, in order to found a basis to set aside the Decision on appeal, the failure to remove the Respondent's mother from the court must have some impact on the Decision under appeal. As the failure to remove the Respondent's mother from the court does not go to the merits of the Decision, the appropriate framework within which to consider this issue is that of procedural fairness.
3. In my view, on the basis of the materials in the transcript the Appellant has not satisfied me that the failure by the Magistrate to remove the Respondent's mother from the court meant that he was denied procedural fairness in relation to the Decision. Put slightly differently, the Magistrate did not err in effect finding that, on the materials and submissions then before the court, the Appellant had not discharged the heavy onus on him to justify a departure from the general principle that proceedings at trial in a court are open to the public.
4. In the July Affidavit, the Appellant seeks to add more detail to his concerns. He deposes that over the course of his relationship with the Respondent he became aware that she knows sign language (Auslan). He was also aware that the Respondent's mother knows and understand sign language. He had seen the Respondent and her mother communicate in sign language on many occasions during their relationship. During the hearing, he noticed the Respondent's mother making various hand gestures to her, which to him looked like sign language. He then observed the Respondent to adjust her demeanour. He deposes that this occurred frequently when he was cross-examining the Respondent. He concludes by saying that he believed that the Respondent was being coached by her mother to try and make it appear that she was fearful or intimidated by him.[110]
5. The Appellant goes on to depose that he did not raise these concerns with the Magistrate. This was especially after his initial concerns about the Respondent's mother being in the back of the court were dismissed by the Magistrate and how he felt he was being treated by the Magistrate.[111]
6. There is nothing in the transcript to suggest that the Magistrate was aware that the Respondent and her mother were communicating with each other in some non-verbal manner whilst she was being cross-examined. Moreover, even if this did occur, it occurred after the Magistrate's decision not to exclude the Respondent's mother.
7. An appellant cannot assert that a magistrate made an error in coming to a decision based either on facts which were not then before the court or on events which occurred after the decision was made.[112]
8. Counsel for the Appellant submitted that given that the Appellant was a litigant in person and had indicated to the Magistrate that he was feeling 'uncomfortable', the Magistrate erred 'when she did not enquire further as to why he may feel that way which could have assisted the Appellant in articulating why having the Respondent's Mother 'looking over his shoulder' would cause him to be uncomfortable'.[113] I am not aware of any authority which requires a judicial officer to interrogate a litigant in person as to his or her state of 'comfort', or indeed state of mind. Indeed, there is authority to the contrary in somewhat analogous situations.[114]
9. In my view, on the basis of the both the materials in the transcript and the evidence in the July Affidavit, the Appellant has not satisfied me that in the failure by the Magistrate to remove the Respondent's mother from the court meant that he was denied procedural fairness in relation to the Decision.

8. Did the Magistrate deny the Appellant procedural fairness in the manner in which the trial was conducted?

1. This issue is primarily set out in ground of appeal 2, which for ease of reference is (leaving out par (b) which as I have said was not pressed):

The Magistrate erred at law and in exercising her judicial discretion by not affording the Appellant procedural fairness during the course of the trial especially with regards to the Appellant being a self-represented litigant against the Respondent who was legally represented at the time, including as follows:

1. Lack of reasonable opportunity for the Appellant to adduce evidence and /or cross examine the Respondent;

1. Not affording the same opportunities to the parties in the presentation of their respective cases.

1. It is instructive to consider the manner in which the trial was conducted under seven headings:
   • The Appellant as a litigant in person
   • Cross-examination - level of intervention
   • Cross-examination - time limits
   • Evidence-in-chief - time limits
   • Evidence-in-chief - Browne v Dunn
   • Evidence the Appellant was not permitted to adduce
   • Inequality of opportunity
2. I then consider whether, looking at the trial as a whole, the Appellant was denied procedural fairness. At this stage in the analysis, I will put to one side the issue of the impact of the change in the case which the Appellant had to meet (and will return to it in pt 10).

1. As a litigant in person, the Appellant was entitled to some leniency in relation to compliance with the court rules.[115] The court was required to approach the documents in which he articulated his case with some flexibility.[116] The court needed to be astute to ensure that, in a poorly expressed or unstructured document in which he set out his case, there was no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[117] A 'frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[118]
2. One 'abiding difficulty' faced by a court dealing with a litigant in person is 'the tension between the duty of a ... judge to ensure a fair and just trial and the requirement that the court maintain a position of neutrality and impartiality as between the parties'.[119] The court also needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[120] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[121]
3. The Court of Appeal in Zerjavic explained how this balance is struck in more detail:[122]

1. The court's obligation is to ensure a fair and just trial for all parties.

2. A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant.

3. The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair trial to both parties (the application of the principle depending on the circumstances of the case). ... Among other things a trial judge should usually inform a self-represented litigant of the manner in which the trial is to proceed and his or her right to examine witnesses and object to evidence. Also, it will usually be of importance to ensure that a self-represented litigant understands the distinction between evidence and submissions.

4. A trial judge's duty does not extend to advising a self-represented litigant as to how his or her rights should be exercised.

5. All the more so the trial judge's role in providing information to the self-represented litigant with the object of attempting to overcome procedural disadvantages faced by not being legally trained is not a duty to formulate or conduct the case for the self-represented litigant.

The trial judge must be careful to ensure that he or she does not inadvertently mislead the self-represented litigant. For example, the trial judge must be careful to avoid reinforcing a misapprehension on the part of the self-represented litigant about the applicable procedural or substantive law or the way in which the case is to be conducted.

1. From the review of the manner in which the trial proceeded in pt 5, it is evident that the Magistrate informed the Appellant that he:

(a) would be invited to make an opening address, and what its purpose was ([35]);

(b) would have the opportunity to cross-examine the Respondent and any witnesses she called, along with an explanation of questions he may wish to ask and a lay explanation of the rule in Browne v Dunn ([35], [45]);

(c) that as part of cross-examination, he could put documents to the witness, along with the requirement to have spare copies of the document ([45]);

(d) would have the opportunity to give and call evidence, along with an explanation to the effect that only non-leading questions could be asked ([35], [36]); and

(e) would have the opportunity to make a closing address, and the purpose of a closing ([37], [94]).

1. Counsel for the Appellant in written submissions identified three specific deficiencies in the information given to the Appellant.[123]
2. The first is that the Magistrate did not set out the test for granting a final FVRO under the ROA and explain what that meant. However, the Magistrate did ascertain at the outset of the trial that the Appellant had been involved in restraining order proceedings in the past.[124] Further at various points in the trial, the Magistrate referred to the central issue for determination ([59], [97]). In my view, in the context of this trial, the explanation was adequate.
3. The second is that the Magistrate did not explain to the Appellant what a document being 'marked for identification meant' and the process by which a document marked for identification could become an exhibit in the final order hearing in a manner meaningful to a layperson. It is the case that during the Appellant's cross-examination of the Respondent a number of documents were marked for identification. The Magistrate told the Appellant that the purpose of marking the documents for identification was so that the Appellant could give evidence about them.[125] Then, as mentioned ([86]), during the Appellant's examination-in-chief, the Magistrate specifically drew the Appellant's attention to the documents which had been marked for identification, informing him that they needed to be exhibited.[126] Her Honour then took the Appellant through each document with the outcome that each MFI became an exhibit. Counsel for the Appellant did not draw my attention to any document marked for identification which did not become an exhibit. I do not discern any basis on which the approach adopted by the Magistrate can be open to criticism.
4. The third is that the explanation of the rule in Browne v Dunn was 'done only on day 2 of the hearing rather than at the beginning when it was evident that the ban would be in place'. Counsel was also critical of the adequacy of the explanation given, and of the decision to ban the Appellant from asking questions because he had not, in essence, complied with the rule in Browne v Dunn. Rather, given that by ROA s 44A, the rules of evidence do not apply, the Magistrate had a discretion to allow the Appellant to lead his evidence and then attribute the relevant weight to such evidence. This is particularly so given that the Appellant was a litigant in person.
5. On my view of the transcript, the first explanation of rule in Browne v Dunn was given at the conclusion of the sitting day on 11 October 2022 ([45]). However, the essence of the rule had been set out in the Magistrate's general overview of cross-examination ([35]). This timing was appropriate as it was before the Appellant was to start his cross-examination. The explanation was given in the context of providing more detailed guidance on the process of cross-examination and in the context of encouraging the Appellant to come to court the following morning with a list of questions. There was then a further explanation in the course of the cross-examination (which I have quoted at [49]). I do not consider that any issue can be taken with the timing of the explanation.
6. As to the adequacy of the explanation, the rule in Browne v Dunn[127] was recently summarised by the Court of Appeal in Davie v Manuel (a civil case) in the following terms:[128]

The rule in Browne v Dunn comprises two limbs. The first limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner who intends to invite the court to disbelieve an opposing witness must put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. The second limb is that, unless notice has already clearly been given of the party's or cross-examiner's intention to rely upon such matters, a party or cross-examiner must put to an opposing witness in cross-examination the nature of the case upon which it is intended to rely in contradiction of the witness's evidence, especially where that case relies upon inferences to be drawn from other evidence.

However, the rule does not apply where the witness is on notice that his or her evidence is in contest. Such notice may come from a variety of sources, including the originating process, the pleadings, the other side's opening, and from the general manner in which the case is conducted.

The rule is concerned with substantive unfairness, and the rule must therefore be applied flexibly. Ordinarily, it will not be necessary to put to a party to the proceedings a matter which is clearly in issue in the case.

1. The rule in Browne v Dunn is 'an aspect of the principle that a trial must be conducted fairly, so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the parties, the truth lies'.[129] 'The rule may be regarded as both appropriate to and an important aspect of the adversarial system of justice'.[130] It 'is essentially a commonsense principle that is sensitive to the context of the litigation'.[131] Hence, the 'application of the rule in the context of a trial depends upon an impressionistic assessment based upon all of the circumstances'.[132] The rule in Browne v Dunn is not absolute. It must be applied with flexibility.[133]
2. In a civil case, ordinarily it may be assumed that where a witness is not cross-examined on a particular issue, his or her evidence on that issue is not in contest.[134] However, the circumstances of the particular case may negative this assumption.[135] Nonetheless, in deciding what findings of fact should be made a court may (and generally should) have regard to the failure of a party to cross-examine the opposing witness on evidence which has been given.[136] On the other hand, the fact that the evidence is unchallenged does not, however, oblige the court to accept it.[137] The position was explained by Buss JA in Burke in the context of a criminal case, through the reasoning is apposite to a civil case:[138]

Where the rule has been breached, and the tribunal of fact is a judge or a magistrate, there is no requirement that the court must accept or cannot reject evidence that has not been the subject of cross-examination. A failure to cross-examine a witness on a point does not mean that any evidence adduced in contradiction cannot be taken into account. The failure to cross-examine is merely a relevant factor to be evaluated and weighed, together with all other relevant factors in the case, in deciding whether to accept or reject the witness's evidence on the point. This is especially the case where the evidence in question is contradicted by other evidence. There may, however, be cases where, in the circumstances in which the trial was conducted and in the context of the other evidence, the appropriate finding of fact, where the rule has been infringed, will be to accept the evidence which was not the subject of cross-examination.

1. If a trial judge concludes that there has been a breach of the rule in Browne v Dunn, the court has a broad discretion about how to respond to any such breach.[139] The proper response to a failure to observe the rule in Browne v Dunn will vary according to the circumstances of the case, but will usually be related to the central object of the rule, which is to secure fairness.[140] The responses include:[141]

(a) to (at least) take the failure to cross-examine into account in deciding what findings of fact should be made;

(b) to have a witness or witnesses recalled for cross-examination or further cross-examination; and

(c) to direct that the party in breach is not permitted to address the court by making the submission the subject of the breach.

1. At least in a civil case, there is no 'blanket proposition' that a party in breach of the rule in Browne v Dunn may not lead evidence to elicit narrative facts which have not been put to the opposing party's witnesses.[142] In criminal cases, there is some authority that the court has a discretion to prevent an accused for adducing such evidence, even where the accused is a litigant in person:[143]

No doubt a judge has a discretion in a criminal trial as to whether he will allow an accused person who is unrepresented, to put questions going beyond those which a strict application of the rule in Browne v. Dunn would permit. But the appellant in the present case, although unrepresented, appeared to be well versed in the art of cross-examination and general court procedure, as the trial judge himself commented and as appears clearly from the transcript, and we see no reason why his Honour should have taken any course other than the one he did.

This is notwithstanding that '[c]ross-examination conducted by a layman is not to be judged by the standards applied to cross-examination conducted by skilled counsel'.[144] So, not surprisingly, there is strong authority to the contrary.[145] As Bell J explained in Tomasevic:[146]

... a court cannot prevent the defence from giving otherwise admissible evidence, even if the rule in Browne v Dunn was not complied with. If the evidence is relevant to the determination of the charges brought against the accused, to exclude it would run counter to the court's fundamental obligation to ensure a fair trial. A rule grounded in fairness can never be applied to produce a result so unfair as the exclusion of evidence going to the question whether a person is guilty or not guilty of a criminal charge. ...

1. In a civil case, it is at least the position that the circumstances would have to be exceptional for a party to be denied the opportunity to lead evidence that is relevant and otherwise admissible, though for which there has been a breach of the rule in Browne v Dunn.[147]
2. The outcome of this analysis is that the Magistrate's explanation of the rule in Browne v Dunn set out at [45] and [49] is, in my view both correct and adequate. I return to its application in section 8.6.
3. In my view, the explanations given to the Appellant as a whole were adequate for him to overcome, so far as is reasonably practicable, the procedural disadvantages that he faced by reason of not being legally trained.[148]

1. The cross-examination of the Respondent took place within the legislative framework of the ROA, in particular ROA s 44C and s 44F, which provide:

44C. Cross-examination of certain persons

(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 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.

(3) This section does not derogate from the operation of section 44F.

...

44F. Additional provisions relating to FVROs

A court conducting proceedings relating to an FVRO is to take such steps as are reasonably practicable and appropriate to ensure that a person who has (or who may have) experienced family violence feels safe during the course of those proceedings, including by -

(a) actively directing, controlling and managing the conduct of the proceedings; and

(b) without limiting paragraph (a), limiting cross-examination of a person.

1. To this is added the powers in MCCPA s 16(1)(p):[149]
   1. Court's powers to control and manage cases

(1) The Court may do all or any of the following for the purposes of controlling and managing cases and trials -

(i) the time a party has at trial to examine, cross-examine or re-examine a witness, or to make oral submissions, or to present its case;

(ii) the number of witnesses (including expert witnesses) that may be called in relation to an issue;

1. It is clear from my review of the transcript in pt 5, that at times the cross-examination was disjointed, and that the Appellant was struggling with the process. Though, as I observe at [57], for much of the time, the Appellant and Magistrate were in a rhythm in the cross-examination in which the question by the Appellant, question by the Magistrate and answer flowed.
2. The application of the principles of procedural fairness in this Appeal thus need to be considered in the context of FVRO s 44C and s 44F. However, it remains that an important aspect of procedural fairness is the right to challenge by cross-examination a witness whose evidence is adverse, in important respects, to the case a party wishes to present.[150]
3. There are, however, limits to the 'right'. A tribunal of fact 'has a wide discretionary power in any proceedings to contain cross-examination within proper limits and to disallow repetitious prolix or unnecessary questions'.[151]
4. For example, in Lets Go Adventures Pty Ltd v Barrett, Adamson J observed:[152]

A trial judge has an obligation to ensure that litigation is conducted in a civil way and that practitioners adhere to their professional responsibilities. It is always a matter of judgment as to whether it is necessary to intervene in cross-examination to protect a witness from unfair questioning. ...

Procedural fairness requires more than merely giving each party an opportunity to be heard. It also requires that each witness be permitted to answer questions without being abused in the process. This is not to say that cross-examination cannot be robust, but it must be fair. The latitude commonly afforded to cross-examiners does not amount to a licence to offend, ridicule or vilify. Fairness requires that no proposition, particularly one which is damaging to the witness, be put without a basis. It also requires that questions be asked one at a time and that cross-examination not be peppered with gratuitous and, as in the present case, insulting, commentary to the witness. It requires that the witness be permitted to finish his or her answer and not be cut off or needlessly interrupted. Where a trial judge fails to intervene to stop such egregious conduct, an impression can be created that the judge is endorsing, or even collaborating, in such conduct. It is possible that encouragement, whether tacit or explicit, to such conduct could give rise to an apprehension of bias which is inimical to the proper administration of justice. The advantage that a trial judge enjoys of seeing and hearing the witnesses ought not be misused.

1. And in Fried v National Australia Bank Limited Weinberg J observed:[153]

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. The Evidence Act 1903 (WA) contains a general rule limiting improper questions in cross-examination. I do not need to consider whether the effect of ROA s 44A(1)(a) is that the EA has no application to a final order hearing for an FVRO. It is sufficient to find that the limits on improper questioning set out in EA s 26 reflect common law limits on the 'right' of a party to cross-examine a witness for the purposes of procedural fairness. Specifically, EA s 26(1) provides that 'the court may disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the question is ... misleading; or ... unduly annoying, harassing, intimidating, offensive, oppressive or repetitive'.
2. The common law also contains some well-established limits on the questions which may be asked by counsel in cross-examination. These begin with the baseline that the question must be relevant to the facts in issue.[154] Counsel is not permitted to make comments when questioning a witness.[155] Counsel must avoid compound questions, that is, questions that simultaneously pose more than one inquiry and call for more than one answer.[156] Counsel must not cut-off the witness before the witness has completed the answer.[157] Counsel must not ask a question which assumes a contested fact in issue.[158] Counsel must not ask questions which invite the witness to argue.[159] Unless a witness is permitted to give opinion evidence, the witness should not be asked to respond to a hypothetical question.[160]
3. I set out these principles in some detail because it is evident from the review of the manner in which the trial was conducted in pt 5 that on many occasions the Magistrate reframed the question which the Appellant wished to ask into a form that would not have been objectionable had it been asked directly of the Respondent (see [48] - [59]).
4. In my view, the level of intervention by the Magistrate in the Appellant's cross-examination of the Respondent, whilst high, was necessitated by the entirely appropriate use of the procedure in ROA s 44C and a concern to ensure that the questions asked were proper.

1. Perhaps the strongest intervention by the Magistrate was to limit the time within which the Appellant was allowed to cross-examine the Respondent. The Magistrate had a specific power to do so, being that set out in ROA s 44F(b) (quoted at [147]). As a general rule, a court should not place an arbitrary time limit on cross-examination. However, there may well be situations in which 'it might be reasonable and proper at some stage of a cross-examination to impose a time limit'.[161]
2. In the present case, it is apparent from the transcript that the Magistrate expected the trial to last two days.[162] The cross-examination of the Respondent commenced part way through the second day of the trial (12 October 2022). A recurring theme in the cross-examination, was the Magistrate telling the Appellant not to waste time and to get to the point ([62]). The Appellant had not concluded his cross-examination by the close of that day, so the trial was adjourned to 22 March 2023. Some time was taken on the morning of 22 March 2023 for the Respondent to give further evidence-in-chief about two further incidents which she asserted were in breach of the Interim FVRO. The Appellant then continued with his cross-examination of the Respondent. Just before breaking for lunch, the Magistrate gave the Appellant a direction to finish his cross-examination that afternoon, the terms of which I have set out at [68]. The Appellant resumed his cross-examination of the Respondent after lunch. At some point just before 4.34 pm, the Magistrate told the Appellant that his cross-examination was completed, having given him a five-minute warning. The court adjourned for the day at 4.34 pm ([69]). In total, the Appellant had a day and a half's worth of sitting time to cross-examine the Respondent.
3. Much of the cross-examination of the Appellant was an attack on the honesty, accuracy and reliability of the Respondent's evidence based on prior inconsistent statements in earlier proceedings. As to this, in her reasons for decision, the Magistrate made the following observation of this cross-examination:[163]

It emerged that some of the incidents and behaviour canvassed in this trial had been the subject of evidence in other proceedings. One method utilised by [WWW] to undermine the credibility of [DET] was to attempt to demonstrate inconsistency as between evidence given previously by [DET] (whether oral or by affidavit), and her evidence in this trial, rather than directly challenge the truth of the evidence and give evidence of his version of events. The challenge on the basis of inconsistency of evidence in different proceedings was inexpertly done, and in any event, did not demonstrate any significant inconsistency. Infrequently did [WWW] directly challenge the truthfulness of [DET]'s evidence in cross examination by putting his own version of the event. Save for giving some evidence about alleged financial abuse, [WWW] did not systematically give evidence about the matters raised with [DET] in cross examination, or indeed her witnesses.

[WWW]'s own case simply did not canvass at all, or adequately, his behaviour towards [DET] during the course of the relationship, or since, save for a focus on alleged financial abuse. [WWW] adduced minimal evidence, if any, with respect to his (alleged) abusive, offensive, &/or derogatory comments to, and about, [DET] during the course of the relationship, and more recently during the Facetime contact sessions between him and the children.

From my review of the transcript, these observations by the Magistrate are entirely accurate and fair.

1. In my experience, in cross-examination there exists a point of what may be described as diminishing marginal utility beyond which further examples of inconsistency do not materially add to the analysis as to whether the witnesses' evidence is honest, accurate and reliable. Plainly the Appellant, at least in the Magistrate's assessment, went beyond that point. It is difficult to see how allowing him time to have done more of the same would have been a productive use of the court's time.
2. In my view, the time limit placed on the Appellant's cross-examination was reasonable.

1. In Davie, the Court of Appeal recently observed that a 'fundamental requirement of procedural fairness is ... that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions'.[164]
2. The Appellant commenced his evidence-in-chief on the morning of 24 March 2023, the preceding day being taken up by the other witnesses called by the Respondent.
3. At the commencement of the hearing on 24 March 2023, the Magistrate set out her expectation that the parties would get to closing submissions that day, meaning that the Appellant would have had to have finished his evidence sufficiently early that day to leave time for closing submissions ([78]). After being given a warning at the mid-morning break that he had to be finished by lunchtime, and a 15-minute warning, the Appellant completed his evidence-in-chief before the luncheon adjournment.
4. The Appellant in fact completed his evidence-in-chief in the allotted time and did not ask for more time.
5. In the July Affidavit, the Appellant does not identify any additional evidence he would have liked to have adduced, but did not get the time to (though he did identify evidence he tried to adduce, but was not permitted to - see section 8.7).

1. On a number of occasions, in response to an objection from counsel for the Respondent that the issue had not been raised in cross-examination, the Magistrate allowed the Appellant to continue with his questions, commenting that the issue was one of weight ([80], [81]). This is consistent with the principles set out at [139] - [144]. No issue could be taken with this approach, and none was.
2. However, at [82] I identify the one instance in which the Magistrate prevented the Appellant from adducing evidence about factual matters which he had not cross-examined the Respondent about.
3. As I have already mentioned, at a final order hearing for an FVRO, the court is not bound by the rules of evidence and may inform itself on any matter in such manner as it considers appropriate.[165] It follows that the Magistrate was not bound to apply the rule in Browne v Dunn, though it was open for her Honour to do so. It also follows that for the purposes of determining the Appeal, I do not need to determine whether the Magistrate correctly applied the rule in Browne v Dunn in preventing the Appellant from adducing evidence about factual matters which he had not cross-examined the Respondent about (see [143] - [144]). Rather, the issue is whether the Appellant was denied procedural fairness in being precluded from adducing this evidence. That is, I need to focus on the effect of the ruling, and not the reasons for the ruling.
4. The evidence which the Appellant sought to lead was otherwise relevant and admissible. It does not appear that it would have added materially to the length of this evidence. However, it was not of any particular significance to the determination of the central issues in dispute. Even had the laws of evidence applied, a single erroneous evidential ruling would not necessarily mean that the Appellant had been denied procedural fairness.[166]

8.7 Evidence the Appellant was not permitted to adduce

1. In the July Affidavit, the Appellant identified two tranches of evidence that he sought to adduce, but was not permitted to.
2. The first related to his attendance at the Family Court on 26 March 2021. The Respondent had given evidence to the effect that the Appellant had stalked her by attending at the Family Court when she was there for a hearing on 26 March 2021. The Appellant wanted to establish that he attended the Family Court because of a notification that he had received from the Commonwealth Courts Portal and an email from the Family Court. The documents he sought to tender, but was refused, were:[167]
   1. I sought to tender the following evidence, but was refused:

1. Screenshot of email received from the Commonwealth Court Portal notifying that a court date had been set for 26 March 2021 (Attachment A); 2. Photograph of the Commonwealth Courts Portal page showing the listing for a Parenting Case Assessment Conference on 26 March 2021 (Attachment B);

1. Copy of my e-flight itinerary with Qantas showing I had booked a flight from Brisbane to Perth, arriving 25 March 2021 to attend the hearing (Attachment C);

1. Photograph of my reservation at the Duxton Hotel for one night stay from 25 March 2021 to 26 March 2021 (Attachment D); 2. Photograph of a receipt showing payment made at the Duxton Hotel on 25 March 2021 (Attachment E); 3. That I was self-represented in the Family Court at the time and was not told that I did not need to attend the Family Court; and 4. That I would not have incurred the expenses I just did to fly from Brisbane to Perth for 1 night if I did not need to do so.
2. In cross-examination, the Respondent said that when she attended court on 26 March 2021, she was informed that the Appellant had been told that there was no need for him to be there.[168]
3. The Appellant was cross-examined on this incident. He said he received a notification from the court that he was required to attend, but when he arrived he was informed by the judicial officer conducting the case assessment conference that he was not supposed to attend that day.[169]
4. I do not consider that the Appellant was denied procedural fairness in not being able to tender the documents set out at [173]. The documents do not add to the evidence which he gave at [175]. In particular, while the documents are to the effect that he was notified that there was a case assessment conference on 26 March 2021, there is nothing in the documents to the effect that he personally was required to attend this conference.
5. The second is that he sought to adduce the material from the earlier proceedings in the Magistrates Court and the Children's Court regarding the previous proceedings. Specifically:[170]

1. I seek to adduce the following evidence in relation to the Perth Magistrate's Court proceedings with respect to the Family Violence Restraining Order application (MC/CIV/PER/RO/****/2019) brought by [DET] against me, seeking to protect herself and the children:
   1. A copy of the transcript of the final order hearing, part heard in the Perth Magistrate's Court on 9 October 2019 (Attachment F); and
   2. A copy of the transcript of the final order hearing, part heard in the Perth Magistrate's Court on 20 January 2020 (Attachment G).
2. I seek to adduce the following evidence in relation to the Children's Court proceedings with respect to the Family Violence Restraining Order application (CC/CIV/PER/RO/***/2020) brought by [DET] against me, seeking to protect the Children:

1. A copy of the affidavit made and sworn by [DET] on 9 July 2020 (Attachment H); 2. A copy of the transcript of the interim application hearing in the Children's Court on 9 July 2020 (Attachment I);

1. A copy of the transcript of the interim application hearing, continued, in the Children's Court on 24 July 2020 (Attachment J);

1. A copy of the transcript of the Directions Hearing of the Final Order in the Children's Court on 4 December 2020 (Attachment K); 2. A copy of the transcript of the ex parte Hearing of the Final Order in the Children's Court on 12 April 2021 (Attachment L); 3. A copy of the affidavit made and sworn by [WWW] filed on 6 September 2021 (Attachment M); and 4. A copy of the transcript of the Cancellation Hearing of the Final Order in the Children's Court on 17 December 2021 (Attachment N); 5. A copy of the notice from Children's Court dated 17 December 2021 (Attachment O).
2. The evidence from the prior proceedings was potentially relevant for two purposes. The first was in relation to the Appellant's argument that the question of whether the children should be protected by a restraining order had already been dealt with by the Children's Court, so the Respondent was estopped from raising it again in the Application. However, as I have already noted, the question of issue estoppel does not arise in this case, was not considered relevant by the Magistrate and, quite properly, was not pressed on appeal ([30]).
3. The second potential relevance is to found cross-examination on the basis that the Respondent had made a prior inconsistent statement in earlier proceedings. When the Appellant sought to cross-examine on this basis, he issue was quite properly told he had to put the specific portion of the document to the Appellant and ask her about the inconsistency ([58]). Further, the Magistrate explained about the concept of hearsay in relation to the contents of affidavits and other materials:[171]

HER HONOUR: Okay. Well, you are not permitted to give hearsay evidence, right? You are not permitted to draw upon things that have come to your attention in other proceedings, in affidavits, in other courts and proceedings, and attempt to give evidence of that here. That is hearsay. Right. It's hearsay if you are trying to adduce, so produce, that evidence so as to establish the truth of that particular proposition.

Now, I'm saying all this because you're representing yourself, but I'm explaining it in detail because you're still at the start of your evidence. Right. I am directing you. You are to give evidence of your personal knowledge, right, your observation of relevant events, things that have happened that are relevant to the family violence application. Right. And you must not say things in a way which suggest that you have personal knowledge through observation when, in fact, something has come to your attention through other mitigation, court evidence, affidavits, whatever. Right?

[WWW]: Sure.

So it was made clear to the Appellant that he could give evidence about the subject matters contained in affidavits filed in other proceedings, provided they were in his personal knowledge or observation.

1. I do not consider that the Appellant was denied procedural fairness in not being able to adduce the material in paragraph [177].

1. The Appellant says that he was not afforded the same opportunities as the Respondent in the presentation of his case.
2. It is the case that no limits were placed on the Respondent as to the length of her counsel's cross-examination of the Appellant or the length of the evidence-in-chief.
3. On many occasions, the intervention by the Magistrate was to assist the Appellant to properly cross-examine the Respondent ([48], [49], [56]). The Magistrate also assisted the Appellant when giving his evidence-in-chief ([79]).
4. Also, on occasion during the cross-examination of the Respondent, the Magistrate also had to intervene in relation to the answers being given by the Respondent ([61]).
5. The interventions by the Magistrate in the cross-examination of the Appellant were minimal, as one might expect where counsel is involved.

1. In deciding the Appeal, I must decide for myself whether the Magistrate denied the Appellant procedural fairness in the manner in which the trial was conducted.[172]
2. The principles of procedural fairness were summarised by the Court of Appeal in Defendi v Szigligeti:[173]

It is axiomatic that a court is obliged to accord procedural fairness to a litigant.

However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.

Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.

The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.

1. The last paragraph quoted is significant given the provisions of ROA s 44C and s 44F which the Magistrate relied on.
2. The Court of Appeal in Defendi then referred to MCCPA s 13 noting that it 'provides relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible'.[174] This principle applies to applications under the ROA.[175]
3. Moreover, in Murray v Feast Solomon J recently and relevantly observed:[176]

There is ample authority for the proposition that the Magistrates Court is an extremely busy court in which some latitude must be given for the pressures that attend the administration of justice in a high-volume and necessarily fast-paced environment.

His Honour also described the atmosphere in the Magistrates Court as being 'stressful and pressured'.[177]

1. The content of procedural fairness also needs to be understood having regard to the nature of the proceedings.[178] In determining whether to make a final FVRO the Magistrate was specifically required to have regard, among other factors:[179]

... that in order to encourage victims of family violence to report that violence and seek help, proceedings under this Act should be conducted in a way that treats victims with respect and dignity and endeavours to reduce the degree to which victims might be subject to re-traumatisation during those proceedings.

1. It is in this context that the question arises as to whether the Appellant was given a reasonable opportunity to cross-examine the Respondent and her witnesses and to present his own evidence and to make submissions. As to this, in Rowe Newnes JA (with whom the other members of the court agreed) observed:[180]

... 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. 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. 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. 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.

1. I have considered the specific issues raised by counsel for the Appellant in the analysis so far.
2. Counsel for the Respondent make the following submissions which add to the analysis so far:

(a) the Magistrate permitted the Appellant to take into the witness box a piece of paper with dot point notes on it;

(b) the Appellant had the benefit hearing the Respondent's evidence-in-chief, receiving a copy of the transcript of that evidence and then having some five months to prepare his cross-examination;

(c) the amount of time he had to prepare was well in excess of the time litigants in person are usually entitled to in FVRO proceedings;

(d) at the conclusion of his evidence-in-chief, the Appellant did not indicate to the Magistrate that he felt he had questions that he had not been able to get to or remained outstanding;[181]

(e) at the conclusion of his evidence-in-chief the Appellant did not comment that he wanted to give any further evidence; and

(f) the cross-examination of the Appellant by counsel for the Respondent was significantly shorter than that of the Appellant, being concluded in about an hour.

1. There is only one minor aspect in which the opportunity given to the Appellant to present his case was somewhat deficient. This was that he was not allowed to lead relevant and admissible evidence on one occasion ([82], [169] - [171]). However, as I have observed, the evidence was not of any particular significance to the determination of the central issues in dispute.
2. On the other hand, there are number of concerns raised by the Appellant which I do not accept, summarising the analysis in this Part.
3. The first that the explanations and other assistance given by the Magistrate to the Appellant were sufficient to overcome, so far as is reasonably practicable, the procedural disadvantages which he faced by reason of not being legally trained.
4. The second is that the interventions by the Magistrate in cross-examination were for the most part to ensure that the questions which the Appellant wanted to ask were proper questions asked in a proper way. The cross-examination was at times disjointed, but that was the inevitable consequence of the process in ROA s 44C.
5. The third is that the time limit placed on the Appellant's cross-examination was reasonable given that:

(a) the imposition of time limits on cross-examination is expressly contemplated both in civil proceedings in the Magistrate Court generally and in final order trials under the ROA;

(b) the time limit was not imposed arbitrarily at the commencement of the cross-examination, rather only after it had been going for nearly a day;

(c) the time limit was imposed at a point which allowed the Appellant a further half day sitting time to complete his cross-examination, allowing him to prioritise the points he wanted to make;

(d) to the extent that the thrust of the cross-examination was an attack on the honesty, accuracy and reliability of the Respondent's evidence based on prior inconsistent statements, there exists a point of what may be described as diminishing marginal utility beyond which further examples do not materially add to the analysis; and

(e) the Magistrate was required to endeavour to reduce the degree to which the Respondent was subject to re-traumatisation.

1. The fourth is that the decision of the Magistrate to impose a time limit on the Appellant's evidence-in-chief was, in my view, reasonable in the circumstances of the trial. The Appellant in fact completed his evidence-in-chief in the allotted time.
2. The fifth is that in the July Affidavit, the Appellant does not identify any evidence has was not able to adduce because of the time limit imposed, let alone any evidence which could potentially have led to a different outcome.
3. The sixth is that I consider that the differences in approach adopted by the Magistrate towards the Appellant and the Respondent were justified. They were in large the inevitable consequence of the Appellant being a litigant in person, in particular one in an application under the ROA, and the Respondent being represented. This includes the use of the procedure in ROA s 44C.
4. A final factor to consider is the 'realities of pressure of work and limited time in the magistrate's court'[182] and the public interest in achieving the most efficient use of the court's resources. These, in my view, justified limits being placed on both the Appellant's right to cross-examine and the right to call evidence.
5. Taking all these matters into account, on balance I am of the view that the Appellant was afforded a reasonable opportunity to be heard, that is, to present his case by evidence, information and submissions and to cross-examine the Appellant and the witnesses she called. Accordingly, leaving aside the issues of bias and a change in the case he had to meet, the Appellant has not established ground of appeal 2.

9. Was the Magistrate biased against the Appellant?

1. A decision which is tainted by bias is a breach of procedural fairness which is in turn an error of law justifying the decision being set aside.[183]
2. A convenient starting point in the analysis are the following observations by Solomon J in Murray:[184]

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

1. The last sentence in this passage refers to the two types of bias. The first is actual bias. The principles by which this form of bias is to be determined are well-settled. They are summarised by Quinlan CJ in Ogbonna v CTI Logistics Ltd:[185]

A determination as to actual bias in the form of prejudgment requires assessment of the state of mind of the judge in question, ordinarily on the basis of what the judge had said and done. The onus of demonstrating actual bias lies upon the party asserting the actual bias and it is a heavy onus.

1. In a parallel decision in the same matter,[186] Murphy JA said:

A finding of actual bias is a grave matter. An allegation of actual bias must be distinctly made and clearly proved. Such a finding should not be made lightly, and cogent evidence is required. The inquiry requires an assessment of the state of mind of the judge in question. However it is not confined to a consideration of the intentional state of mind of the judge. Actual bias may be subconscious. Generally speaking, that inquiry has to be undertaken based on what the judge has said and done.

1. The second is where there is a reasonable apprehension of bias. The principles were recently summarised by the Court of Appeal in Wreford:[187]

Reasonable apprehension of bias will be established if a fair-minded lay observer might reasonably apprehend that the relevant judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide. In applying this principle it is necessary to identify what is said might lead the judicial officer to decide a case other than on its legal or factual merits and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.

The test is objective and the fair-minded lay observer is someone who is aware that the person who is being observed is a professional judicial officer whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial. However, the fair-minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.

1. In the present Appeal, what is complained of is actual bias.
2. Counsel for the Appellant submitted that the 'Magistrate demonstrated a bias towards the Respondent during the proceedings and was also harsher on the Appellant including berating him which left him feeling overborne and therefore, hindering his ability to cross-examine the Respondent and put his case forward'. Specifically, counsel for the Appellant identified six ways in which the Magistrate is said to have demonstrated bias towards the Appellant.
3. The first was that the Magistrate made condescending remarks to the Appellant and repeatedly told him that he was wasting the court's time as he was trying to deliver his case. As I have mentioned ([62]), at a number of points the Magistrate did tell the Appellant that he was wasting the court's time and needed to move on.
4. At one point, the Respondent sought to tender a grainy photo of a crab net. He wanted to establish that it was not possible to put a live cat into a crab net. This was in response to evidence from the Respondent that this was something which the Appellant had told her that he had done. The interaction on this issue is telling as to the difficulties which the Magistrate was having with the Appellant, so is worthy of quoting in detail:[188]

HER HONOUR: No. Hold on. She doesn't have what you're looking at. So, [DET], can you confirm, when you gave evidence-in-chief on 11 October last year, you were asked something - you were asked the following question:

Yes. He would tell me how he put them as crayfish in the crab net while they were alive.

And it goes on. Do you agree that you gave that evidence?---Yes.

Okay. And was that truthful?---Yes, your Honour.

Okay. Now, what's the question?

[WWW]: So the question is how do you put a live cat in a crab net, as is pictured in this - - -

HER HONOUR: No. I'm not going to allow that.

[WWW]: Okay. It's not possible. I will put it to [DET] that it is impossible to put a live cat in the crab net, which is pictured in this photo, as she alleges. Why can't the cat jump out? It's a live cat. That's what she stated. You put a live cat

HER HONOUR: This is ridiculous.

[WWW]: It's not.

HER HONOUR: This is wasting court time.

[WWW]: She is implying that I am willing to harm animals. That's what it - that is where she is coming from.

HER HONOUR: Just get on to something that is worthy of court time.

[WWW]: Sorry, your Honour. I'm a bit confused by that. And you are aware that I'm not a lawyer. Is not an allegation that I would harm an animal - - -

HER HONOUR: I'm not going - - -

[WWW]: - - - relevant to - - -

HER HONOUR: - - - ask her to - - -

[WWW]: - - - these proceedings?

HER HONOUR: - - - speculate about whether you could get a cat into that net in this - - -

[WWW]: Okay.

HER HONOUR: - - - very grainy photo.

[WWW]: So I - - -

HER HONOUR: Next question - - -

[WWW]: Okay. So I put it to - - -

HER HONOUR: - - - please. You're wasting court time.

[WWW]: So I put it to [DET] that you cannot put a live cat in a crab net as is evidenced in the photograph that she has in her hand.

HER HONOUR: No. I'm not going to allow - get on with the next question, please.

To the extent that one detects a certain amount of frustration in the Magistrate's tone, it was in my view, justified, as was her Honour's direction for the Appellant to stop wasting time and move on.

1. Having said that, it is the case that the language used by the Magistrate was on occasion not as temperate as it might have been.
2. The second was that the Magistrate spoke to the Appellant in a raised voice, demonstrating her frustration with him and his questions. In this regard, counsel drew the court's attention to what the Appellant deposed in his affidavit. The Appellant deposes that the Magistrate's tone and manner in which she spoke to him was different from how she spoke to the Respondent and her lawyer. He described the Magistrate's tone as 'aggressive'. He says that she would regularly raise her voice when speaking to him and that this would often be in a frustrating and condescending manner. As a result, he described feeling intimidated, 'like I was a naughty kid being told off'.[189]
3. It is difficult to assess issues going to the volume and tone used by the Magistrate based on a transcript. I do, however, reiterate the Magistrate's observation in the reasons for decision:[190]

The trial proceeded over 5 days in total, the first 2 days in October 2022 and the last 3 days some 5 months later. It proceeded in a very small court room on each day. The parties were in extremely close proximity. At times the tension was palpable.

1. The third and fourth may be considered together. The third is that the Magistrate refused to allow the Appellant to leave or present documents and disputed his questions. The fourth was that, conversely, the Magistrate allowed counsel for the Respondent to present evidence where there were no copies and only a screenshot on a mobile phone.
2. The instance relied on by counsel for the Appellant in which the Magistrate refused to allow the Appellant to leave or present documents was the following:[191]

[WWW]: Okay. I've got a document, your Honour. But unfortunately - I don't know why. But there's only one copy of it.

HER HONOUR: Well, we're not going to proceed with just one copy.

[WWW]: Okay. I will come back - - -

HER HONOUR: Right.

[WWW]: I will come back to that.

HER HONOUR: Okay. Fine.

[WWW]: Your Honour, I've got a series of documents here for the witness and - - -

HER HONOUR: Okay.

[WWW]: - - - the court.

HER HONOUR: So you're going to deal with one at a time?

[WWW]: Yes. There is three copies. It is more than one page that is relevant.

HER HONOUR: I see. Okay. Fine. If you give them one copy to counsel and two copies to the orderly, one will go to the witness. One will go to the court. Thank you.

So the issue was left on the basis that the Appellant would come back to the first document, presumably once he had made some copies of it, as he had done so for the documents he went on to refer to.

1. The instance as regards the Respondent, in re-examination the Respondent referred to having problems with her iCloud account whereby all the messages from the Appellant would disappear from the message log only to reappear later. She took screenshots both when the messages were there and when they were not. Then:[192]

HER HONOUR: So do you have those?---I do.

Where are they?---On my phone, which I have here.

Okay. Right?---I took screenshots.

Yes. We need to have those printed out if you're going to want to adduce them.

TYSOE, MS: Yes, your Honour. I don't have printout copies so we can move on from them.

HER HONOUR: Yes. Okay. So, if you want to adduce them, you might arrange for them to be printed over lunchtime and then return to that when we resume this afternoon.

TYSOE, MS: Yes, your Honour. We can attend to that.

After the luncheon adjournment, counsel for the Appellant informed the Magistrate that she had not been able to produce printouts due to some technical issue. Counsel inquired whether the Magistrate was prepared to look at the phone as evidence of the messages disappearing. The Magistrate did so. The Magistrate then directed counsel for the Respondent to produce a redacted version of the text message log, which would preserve the privacy of the Respondent with respect to other messages. This document would be shown to the Respondent.[193] At the commencement of the hearing on 24 March 2023, counsel for the Respondent produced printed out copies of the screenshots, a copy of which was provided to the Appellant.[194]

1. In essence, the Magistrate adopted the same position for both parties, giving them time to make copies of documents that they wished to rely on.
2. As to the Magistrate disrupting the Appellant's questions, this did occur, but, as I have discussed in pt 8.3, this was an inevitable consequence of the use of the procedure in ROA s 44C. So, it is the case that the Magistrate adopted a different approach as between the Appellant and Respondent as regards cross-examination, but for good reason. The interventions also reflected the need for the Magistrate to put the questions which the Appellant wanted to ask into something resembling a proper form.
3. The fifth was not allowing the Appellant to rely on materials without dates but allowing the Respondent to do so. The materials which the Appellant refers relates to his attendance at the Family Court on 26 March 2021.[195] He was seeking to challenge the Respondent's evidence that he was not required to attend court that day. He was trying to do so by cross-examining the Respondent on an extract from the eCourts portal. The document in question did not have a reference to the case name.[196] So the Magistrate did not allow it to be tendered. The document was not marked for identification and is not in the Matter Book. It could be Attachment B to the July Affidavit. However, the Magistrate did allow the Appellant to question the Respondent on the issue:

[WWW]: Yes, I do - [DET], I put it to you that I wouldn't have been there if I wasn't advised by the court to attend.

HER HONOUR: Well, she can't answer that question. Right. She doesn't know what you were advised.

[WWW]: Yes.

HER HONOUR: Right.

[WWW]: Okay.

HER HONOUR: So I'm going to reformulate that in a different way. To the best of your knowledge, was [WWW] required to attend for a case assessment conference that day?---To the best of my knowledge, he was not, because I was aware he had already done his.

1. As to the evidence without dates which the Respondent sought to rely on, these were a series of recordings which the Respondent had made of a FaceTime conversation between the Appellant and his daughters.[197] This was said to have been done with the permission of the Family Court. The Appellant was concerned to ascertain the date on which the recording was made.[198] The Respondent gave evidence that they were made within the last year.[199]
2. I do not discern anything of concern with the different approaches taken by the Magistrate set out at [222] and [223]. Each was appropriate in the context.
3. The sixth was that the Magistrate interrupted the Appellant's cross-examination of the Respondent to allow the Respondent to adduce further evidence. I have set out the evidence which the Respondent adduced at [65] and [66]. The evidence relates to two matters which arose whilst the trial was adjourned, the second of which resulted in a complaint to police. So it is not the case that the Magistrate allowed the Respondent to give further evidence that she could have given in her evidence-in-chief. In my view, it was clearly in the interests of justice for the Respondent to have the opportunity to place before the court fresh evidence of what she invited the court to find was recent breaches of the Interim FVRO. Moreover, the Appellant gave evidence about the matter.[200] I do not consider that any criticism can be levelled at the Magistrate for adopting this course of action.
4. Having closely reviewed the transcript of the trial, the Appellant has not discharged the heavy onus on him to persuade me that the Magistrate's decision was tainted with actual bias. The allegation has not been clearly proven on the basis of cogent evidence. For completeness sake I add that nor do I consider that a fair-minded lay observer might reasonably have apprehended that the Magistrate might not bring an impartial mind to the determination of the issues then before the court.

10. Did the Magistrate deny the Appellant procedural fairness by changing the case he had to meet?

1. This issue relates to ground of appeal 4, which for ease of references is (removing ground 4(a) which as I have said was not pressed):

The Magistrate erred at law by making the final order for a duration of 5 years and / or extending the order to include the children in circumstances where:

1. The initial interim order did not include the Children;

1. The Appellant was not afforded an opportunity to lead evidence with respect to the Children during the course of the hearing; and

1. The Magistrate only announced her intention to include the Children on the order on the last day of trial.

1. Ground of appeal 4 on its face seems to relate to two aspects of the Decision: extending the order for five years and extending it to the children. However, at the commencement of the trial, counsel for the Respondent made it clear that the Respondent was seeking an order of five years' duration.[201] So the Appeal may be confined to the decision to extend the order to the children, which is how it proceeded in oral argument before me.
2. As to the decision to extend the order to protect the children, it is clear from the passages that I have quoted above that:

(a) the Interim FRVO only protected the Respondent ([10]);

(b) at the commencement of the trial, the Respondent was not seeking to have the FVRO extended to protect the children ([34]); and

(c) the Magistrate made it clear to the Appellant that evidence specifically relating to the children was not relevant to the matters in issue in the trial ([38]).

1. It is also clear, that after the Respondent's case had closed, but before the Appellant gave evidence, the Magistrate invited the parties to make submissions on the issues of ([78]):

(a) whether the children then had the benefit of some other order; and

(b) if not, whether the Respondent now seeks to include them in the order; and

(c) if so, whether the court should make such an order.

1. The Magistrate repeated the matters in the preceding paragraph after the Appellant had finished his examination-in-chief ([87]).
2. After the Appellant had been cross-examined and after he had closed his case, counsel for the Respondent informed the court that there was no current order in place protecting the children and that she would like them included in the order ([92]).
3. The Respondent made detailed submissions on the issue of whether the order should extend to the children ([96]).
4. The starting point in the analysis is that the Magistrate had the power to make a FVRO protecting not only the Respondent but the children as well. ROA s 68 allows the order to extent to apply to other people:
   1. Orders may be extended to apply to other people

(1) When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order (a third party) if it is satisfied that it would have been able to make the order in respect of the third party had the third party made a separate application for the order.

(2) If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.

1. And it is clear by ROA s 10E that the children could have made a separate application for a FVRO:

10E. FVRO may be made for child in circumstances of family violence

(1) An FVRO may be made for the benefit of a child if the court is satisfied that -

(a) the child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely again to be exposed to such violence; or

(b) the applicant, the child or a person with whom the child is in a family relationship has reasonable grounds to apprehend that the child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.

(2) If the court is satisfied in accordance with subsection (1), the court must make the order unless there are special circumstances that would make the order inappropriate.

(3) For the purposes of subsection (2), special circumstances do not exist simply because the applicant or respondent can apply, or has applied, for a particular family order.

1. At the conclusion of the Respondent's case, the Magistrate was, I infer, concerned that the children had been exposed to family violence. That is well evident in the passage I have quoted at [17] from the Magistrate's Decision in which her Honour summarised the evidence on this issue.
2. Counsel for the Appellant in effect asserted that the Magistrate had two, and only two, alternatives. The first was to have dealt with the Application from start to finish on the basis that the order would only protect the Respondent and not the children, and not to have later opened up the issue of whether the order should extend to protect the children. The second was to flag at the outset of the hearing that the Magistrate was considering whether or not the order should extend to protect the children and allow the parties to adduce evidence on that basis.[202]
3. However, these two alternatives do not really address the situation the Magistrate found herself in at the end of the Respondent's evidence. The evidence on the issue of the whether the children had been exposed to family violence which I have set out at [17] is largely based evidence which was either given or corroborated by witnesses other than the Respondent. There was, in my view, ample basis for the Magistrate to have a real concern that the children had been exposed to family violence. The Magistrate was then faced with effectively two choices. The first was to ignore the issue, which is in effect what counsel for the Appellant says she should have done. The second was to be transparent about her concerns and raise them with the parties at the point she did. This is what the Magistrate chose to do.
4. One of the objects of the FVRO regime is to 'protect the wellbeing of children by preventing them from being subjected or exposed to family violence'.[203] Moreover, in determining whether to make a final FVRO the Magistrate was specifically required to have regard, among other factors, to 'the particular need to ensure the wellbeing of children by protecting them from family violence'.[204] In this statutory context, the decision made by the Magistrate to raise the issue of the need to protect the children was readily justified.
5. This is not a case in which it is alleged that the Magistrate failed to put the Appellant on notice that she was considering extending the order to include the children. That would have been a clear breach of the obligation to afford procedural fairness. As the Court of Appeal recently observed in Davie:[205]

A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.

1. As I have already said, a 'fundamental requirement of procedural fairness is ... that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions'.[206] What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, the nature of the jurisdiction and the statutory provisions governing the jurisdiction being exercised.[207] As a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.[208]
2. The real issue in the Appeal is thus, whether having raised the issue of extending the order to protect the children, the Magistrate afforded the Appellant a reasonable opportunity to adduce evidence on, and address, the issue. In my view, for six reasons, the opportunity afforded was reasonable.
3. The first is that the issue of the children being exposed to family violence was identified when the Application was initially filed ([9]). So, at a general level, it was always in issue.
4. The second is that the Appellant had the opportunity to cross-examine the Respondent, and the witnesses she called, on the incidents relied on by the Magistrate in determining that it was appropriate to extend the order to the children (which I have set out at [17]).
5. The third is that the Appellant had the opportunity to give evidence on incidents relied on by the Magistrate in determining that it was appropriate to extend the order to the children. In this regard, it is significant that the Magistrate informed the parties of her intention to consider the issue of the children before the Appellant gave evidence.
6. The fourth is that the Appellant did not inform the Magistrate that he wished to call any witnesses to address the issue of the impact on the children which he could not do at the trial due to the lateness of being informed that the Magistrate was considering extending the order to the children.
7. The fifth is that the Appellant addressed the Magistrate in some detail in closing in support of his submission that the order should not extend to protecting the children ([96]).
8. The sixth is that in the July Affidavit, the Appellant did not identify any evidence that he would have adduced on the issue of whether the order should extend to the children that he was denied the opportunity to adduce.
9. For these reasons, the Appellant has not made out ground of appeal 4.

1. For the reasons which I have set out above, the appropriate final orders are:
   1. The Appellant have leave to adduce the evidence contained in his affidavit sworn 11 July 2024 aside from paragraphs 12 to 20 and 26, and Attachments P, Q, and R.
   2. The Appeal be dismissed.
2. I will hear from the parties as to costs.

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

[1] I will on occasions refer to the Appellant by his initials 'WWW' and the Respondent by her initials 'DET' for ease of reference in particular contexts.

[2] Whom I will refer to as 'ECW' and OAW' respectively.

[3] The Magistrates Court file is before the District Court by way of an electronic matter book. References to pages of the Matter Book will be 'MB #'. The Application is at MB 266 - MB 269.

[11] Which I will refer to as the 'Primary Court Reasons'.

[12] Primary Court Reasons [204] - [206].

[13] Primary Court Reasons [218] - [219].

[14] Magistrates Court (Civil Proceedings) Act 2004 (WA) s 40(3) (MCCPA).

[15] Restraining Orders Act 1997 (WA) (ROA) s 64(1)(b)(i).

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

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

[20] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).

[21] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, with whom Buss JA & Beech J agreed).

[22] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130 [460] (judgment of the court) (Binningup).

[23] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679; (2016) 331 ALR 550 [43] (judgment of the court) (Robinson Helicopter); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].

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

[26] DC transcript, 1 August 2024, page 16 (DC ts).

[29] Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107 [44] - [47] (judgment of the court).

[31] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt & McTiernan JJ) (House); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [38] (Gageler J) (SZVFW); Keremestevski v Shaun McLeod as executor of the estate of Mark Adrian McLeod [2024] WASCA 12 [53] (judgment of the court); Province Leader of the Oceania Province of the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [184] - [185], [204], [241] (judgment of the court) (Lawrence); As to the when a decision will be discretionary, see generally: SZVFW [35] - [50].

[32] Which counsel ultimately submitted: DC ts 9 - ts 10.

[33] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10] (reasons of the court) (Charisteas); Wreford v Castleyheard Pty Ltd [No 3] [2024] WASCA 2 [38] (judgment of the court) (Wreford).

[48] See for example: MB 921, MB 913, MB 916 - MB 918, MB 937, MB 939, MB 940.

[49] See for example: MB 908 - MB 909, MB 920, MB 946, MB 949, MB 728, MB 798, MB 814, MB 832, MB 867, MB 741, MB 742, MB 813, MB 827, MB 833, MB 837, MB 838, MB 846, MB 851.

[50] MB 927. See also, for example: MB 931 - MB 932.

[51] See for example: MB 727, MB 740 - MB 741, MB 926, MB 780, MB 805.

[54] See for example: MB 987, MB 812, MB 846.

[55] See for example: MB 934, MB 940 - MB 941, MB 961, MB 790, MB 850.

[56] See for example: MB 935, MB 789, MB 774 - MB 778, MB 855.

[61] See for example: MB 957, MB 969, MB 982.

[62] See for example: MB 930ff, MB 936, MB 941 - MB 942, MB 948 ff.

[66] See for example: MB 908 - MB 909, MB 918, MB 919, MB 946, MB 950.

[68] See for example: MB 915, MB 971, MB 972, MB 980, MB 732, MB 742, MB 858.

[79] See for example: MB 532, MB 541 - MB 542; MB 547, MB 560.

[82] See for example: MB 540, MB 541 MB 544, MB 558- MB 559, MB 563.

[85] MB 546, MB 553 - MB 554, MB 558, MB 565 - MB 567, MB 568, MB 571 - MB 572, MB 589, MB 590.

[91] MB 580 - MB 587 (The transcript refers to 'extracted' but, in context, I this is a typographical error, and should be 'exhibited').

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

[102] Shilkin v Taylor [2011] WASCA 255 [66] - [68] (references omitted) (Newnes JA, with whom Pullin & Buss JJA agreed) (Shilkin). See also: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [89] (Newnes JA, with whom Buss & Pullin JJA agreed); JC v TH [2024] WADC 58 [21] (Black DCJ); Nugawela v American Express Australia Ltd [2016] WADC 170 [16] (Bowden DCJ).

[103] Ho v Lonergan [2013] WASCA 20 [27] (judgment of the court); Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [31] (McLure P, with whom Owen JA & Miller JA agreed) (Hogan).

[104] Reliance Capital Pty Ltd v Caratti [No 8] [2024] WASC 56 [19] - [20], [38] also [21] - [31] (Reliance Capital) (reference omitted).

[105] Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [21] (French CJ); Reliance Capital [31], [58].

[107] Hogan [33]; Reliance Capital [26], [48] - [52].

[112] TAH v The Public Advocate [2024] WADC 71 [114], [128] (Gething DCJ) (TAH).

[113] Appellant's Submissions, 18 July 2024, par 13.

[114] Seddone v Commonwealth Bank of Australia [2024] WASCA 70 [33] - [34] (judgment of the court); TAH [114] - [128].

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

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

[117] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).

[118] Neil v Nott [1994] HCA 23 [5]; [1994] HCA 23; (1994) 68 ALJR 509, 510; [1994] HCA 23; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].

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

[120] 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).

[122] Zerjavic [75] - [76] (references omitted).

[123] Appellant's submissions, par 18(f).

[126] MB 580 - MB 587. (The transcript refers to 'extracted' but, in context, I this is a typographical error, and should be 'exhibited').

[127] Browne v Dunn (1893) 6 R 67 (HL) 70 - 71 (Lord Herscell), 76 - 77 (Lord Halsbury).

[128] Davie v Manuel [2024] WASCA 21 [83] - [85] (judgment of the court) (Davie) (references omittted). See also: Burke v Corruption and Crime Commission [2012] WASCA 49 [180] (Buss JA, with whom Martin CJ & Mazza JA agreed) (Burke).

[129] The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 [1026] (Owen J) (Bell); Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 235 - 236 (Mahoney JA) (Seymour). See also: Hofer v The Queen [2021] HCA 36 [27] (Kiefel CJ, Keane & Gleeson JJ) (Hofer); Davie [85]; Burke [181].

[132] Bell [1026]; Seymour (236).

[133] Davie [85]; Burke [182].

[135] Burke [184]; Seymour (236).

[138] Burke [192] (references omitted).

[140] Bell [1036]; R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ).

[142] Crosthwaite v Corporation of the City of Elizabeth [1989] SASC 1500; (1989) 51 SASR 105, 107 - 111 (Oslon J) (Crosthwaite). See also: R v Schneidas (1981) 4 A Crim R 101, 100 - 111 (judgment of the court) (Schneidas).

[144] MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 532 (Mason J).

[145] R v Allen [1989] VicRp 64; [1989] VR 736, 738 (McGarvie J); Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 850 (Newton J); Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 [25] (Bell J) (Tomasevic).

[146] Tomasevic [25] (reference omitted).

[147] Crosthwaite (107) - (111) (Oslon J).

[148] And similar to that of the primary court in Zerjavic which was not the subject of criticism on appeal: [77].

[149] The MCCPA applies unless otherwise prescribed by the ROA: ROA s 72.

[150] Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39 [27] (Spender J), cited in: Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314 [82] (Mortimer J); Zurich Australian Insurance Ltd v Motor Accidents Authority of NSW [2009] NSWSC 1314 [15] (Harrison J); Children's Guardian v CF1 [2020] NSWSC 1673 [61] (Davies J); Blenkinsop v Holland [2018] WADC 146 [148] (Gething DCJ) (Blenkinsop).

[151] R v Kelly; Ex parte Hoang van Duong (1981) 28 SASR 271, 273 (King CJ with whom Zelling & Jacobs JJ agreed); Kelly v Fiander [2024] WASC 275 [37] (Musikanth J).

[152] Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 [122] - [123] (Adamson J, with whom Basten & Gleeson JJA generally agreed).

[153] Fried v National Australia Bank Limited [2000] FCA 911; (2000) 175 ALR 194 [28] (Weinberg J), cited in Blenkinsop [149]. See also: Mechanical & General Inventions Co Ltd & Lehwess v Austin & Austin Motor Co Ltd [1935] AC 346, 360 (Viscount Sankey LC).

[154] Stack v The State of Western Australia [2004] WASCA 300; (2004) 29 WAR 526 [101] (Steytler J); Kelly v Fiander [37].

[155] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [125] - [126] (Heydon J) (Libke).

[160] Rolfe v Katunga Lucerne Mill Pty Ltd [2005] NSWCA 252 [117] (Santow JA, with whom Hodgson & McClellan AJA agreed).

[161] R v Kelly; Ex parte Hoang van Duong (273), cited with approval in: Total Value Auto & Finance Pty Ltd v Small [2004] NSWSC 1040 [53] (Campbell AJ); Blenkinsop [149].

[163] Primary Court Reasons [202] - [203].

[165] ROA s 44A(1).

[166] R v T, WA (2014) 118 SASR 382 [53] - [54] (Kourakis CJ, with whom Anderson J agreed & Vanstone J generally agreed).

[167] July Affidavit, pars 23(a) - 23(g).

[172] Defendi v Szigligeti [2019] WASCA 115 [43] (judgment of the court) (Defendi).

[173] Defendi [45] - [48] (references omitted); See also: Davie [87] - [91]; Frigger v Frigger [2023] WASCA 103 [38] - [41] (judgment of the court) (Frigger); Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2017] WASCA 142 [63] (Reasons of the Court) (Sovereign Grange); Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin JA & Murphy JA agreed) (Rowe).

[175] ROA s 72(1)(a).

[176] Murray v Feast [2023] WASC 273 [181] (Solomon J) (Murray).

[180]Rowe [51] (references omitted); Sovereign Grange [63].

[182] Manonai v Burns [2011] WASCA 165 [53], [56] (Hall J with whom Pullin & Murphy JJA agreed). See also [189] and [190].

[183] Charisteas [10]; Wreford [38].

[184] Murray [176] (references omitted).

[185] Ogbonna v CTI Logistics Ltd [2021] WASCA 21 [11] (Quinlan CJ) (references omitted).

[186] Ogbonna v CTI Logistics Ltd [2021] WASCA 22 [18] (Murphy JA) (references omitted).

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

[192] MB 635 - MB 636, confirmed at MB 650.

[207] National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 - 312 (Gibbs CJ); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26] (Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ).

[208] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592 (Northrop, Miles & French JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22] (Gleeson CJ, Gummow & Heydon JJ).