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[2009] WASC 361
respondent. Application dismissed.
Ives challenged the Magistrates Court registry's handling of requests for documents and transcripts and a proposed witness summons for CCTV footage. The Supreme Court held that documents produced under witness summonses were not ordinary court records accessible through the Form 1 process. An application for leave using Form 2 was the relevant route. The transcript-check request did not identify a specific passage, as the rules required. The proposed CCTV summons also lacked a hearing date. The Court found no basis for a review order and dismissed the application.
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2,317 words · generated 02/10/2026
In Ives v Johnson [2009] WASC 361, McKechnie J considered an application for a review order concerning requests made by Benjamin William Ives to the Magistrates Court registry. Ives was representing himself. The underlying proceedings were pending in the Magistrates Court and concerned a violence restraining order involving Ives and another person, referred to in the judgment as “the applicant” and represented by a solicitor [1].
2 cited instruments linked from this judgment.
The Supreme Court application raised several related complaints. Ives appeared to contend that the registry had failed to provide information and documents, had wrongly required permission from a magistrate, and had refused to arrange a check of transcript accuracy [2]-[3]. His proposed draft order was directed against the Principal Registrar, although the Supreme Court proceeding named Michael Johnson as respondent. The respondent did not appear.
The dispute about documents arose after Ives had issued witness summonses for medical and other records. On 11 June 2009, a magistrate set aside two summonses and adjourned consideration of a third, relating to the other party’s psychiatrist, until the hearing [4]. In later correspondence, registry staff explained which documents were available, which had already been provided or inspected, and what procedure applied to documents produced under summonses [5]-[8].
Ives also wanted a transcript checked for accuracy. The rules provide a process for checking a specific part of a transcript, but Ives had not identified a particular passage [15]-[16]. Separately, he wanted to issue a witness summons for CCTV footage. The registry had said that the form was incorrect and did not specify a hearing date. The judge agreed that a summons must be returnable on a particular date [17]-[19].
The application was dismissed. The Court found no merit in the complaints as presented and concluded that the registry’s position was correct on the issues discussed [14], [17], [23].
The principal legal distinction concerned the type of material Ives wanted to inspect. Section 33(3) of the Magistrates Court Act 2004 (WA), as quoted at [10], concerns documents lodged with or issued by the Court as required by law and forming part of the Court’s records, and copies of documents admitted as evidence. Rule 37 of the Magistrates Court (General) Rules 2005 provides for a Form 1 request in that context. Under the quoted rule, a registrar must grant a request where satisfied that it is made by a person entitled under the Act, while other requests may be listed before a magistrate [11].
McKechnie J held that this process did not govern documents produced under witness summonses. The judgment treated those as documents held by the Court in relation to the case, rather than documents forming part of the Court’s records [12]-[13]. It identified s 33(4) and r 38 as the applicable provisions. Rule 38 requires an application for leave to be made by lodging Form 2, after which a registrar may grant the request or list it for a magistrate [13]. The registry had told Ives that a Form 2 application was required for access to subpoenaed documents [6]. The judge concluded that the registry was correct and that Ives could use that process [14].
The court did not decide whether Ives should ultimately receive access to any particular document. Its decision was about the process applicable to the material, not the merits of a specific Form 2 application. It also noted that a magistrate had already set aside the summonses relating to the medical records [14]. That matters to the scope of the decision: the judgment did not determine access to every category of document mentioned in the correspondence.
The transcript issue turned on the wording of r 20. Rule 20(1), reproduced at [15], allows a person to apply to a registrar to have “a specific part” of a transcript checked. Rule 20(2) says that, on such an application, the registrar must arrange the check, correct the transcript if necessary, and certify it. Ives told the Court he had not specified a particular part. McKechnie J therefore found no present error by the registry [16]. The judge also relied on the fact that Ives had an opportunity to listen to the audio recording but had not yet done so. Because the request had been made only about a month earlier and the Supreme Court proceedings had not been served, the judge said he would not intervene in any event [16].
The CCTV summons issue was similarly resolved by reference to the function of a summons. The judge said that it must require production of a document to the Court on a particular date, and that the appropriate return date is when the matter is listed for hearing [17]. If a party wants the summons returned before trial, the judgment said that the party can apply for a separate hearing date [18]. Ives had not done that. His example of another summons did not show that the registry had selected its date, because the document appeared to have been completed in his handwriting [18]-[19]. It was therefore insufficient to support the requested order.
Finally, the judge noted that many of the matters could have been raised before a magistrate, while recognising that the Supreme Court retained ultimate powers to control the Magistrates Court under s 36 [20]. The judgment’s conclusion was that the evidence and submissions did not provide a legal basis for the review order sought.
The judgment describes the statutory and procedural framework it applied; it does not set out a previous judicial rule or identify a line of cases that it altered. The case list says “Nil” under authorities referred to. Accordingly, the decision should not be read from this judgment alone as changing the legislation or establishing a general principle beyond its stated interpretation and application.
As the judgment presents the position, there are distinct routes for different kinds of material. For specified court records and documents admitted as evidence, s 33(3) of the Magistrates Court Act 2004 and r 37 of the Magistrates Court (General) Rules 2005 provide for a Form 1 request [10]-[11]. For documents held by the Court in relation to a case, including documents produced under witness summonses, the judgment applies s 33(4) and r 38, with an application for leave lodged on Form 2 [12]-[14]. The judgment explains this distinction as the reason the registry was not required to treat the subpoenaed documents as ordinary court records accessible through the Form 1 route.
For transcript checks, the judgment states that r 20 requires an application identifying a specific part of the transcript. Where that requirement is met, the rule directs the registrar to arrange a check, make any necessary correction, and certify accuracy [15]. In Ives’s case, the missing specification meant no present error was shown [16].
For witness summonses, the judgment states that the summons must identify a date on which documents are to be produced. A separate earlier return date can be sought by applying for a hearing date before trial [17]-[18]. The judgment does not discuss the operation of these provisions in other procedural settings or define the limits of the Supreme Court’s review jurisdiction more generally. Its “after” position is therefore best described as the case-specific application of the cited statute and rules, rather than a demonstrated shift in the law.
At [13], McKechnie J said: “Documents produced under witness summonses do not form part of s 33. They are not the records of the court; they are documents held by the court in relation to a case.” In plain English, the judge classified summons-produced material separately from documents that count as the Court’s records. That classification determined which access process applied.
At [14], the judge concluded that the registry was correct and stated that Ives could lodge Form 2, with the matter to be determined by a magistrate if the registrar declined to grant the request. In plain English, the judgment did not grant access itself. It identified the formal application process for seeking permission.
At [16], the judge said Ives had not referred to “a specific part of the transcript for checking” and therefore “no error on the part of the registry presently arises.” In plain English, a general concern that the transcript was inaccurate did not meet the rule’s stated requirement to identify the passage to be checked. The judge separately added that he would not intervene in the circumstances even if he thought intervention was needed.
At [17], the judge explained that a witness summons must be returnable on the date the matter is listed for hearing, because it calls for production to the Court on a particular date. In plain English, the summons must tell the recipient when to produce the document. The judgment also recognises that an earlier return date can be arranged through a separate hearing date [18].
At [23], the judge concluded: “There is no merit in this application and it is dismissed.” This is the formal disposition. The comments immediately before it about the registry’s manner of responding and Ives’s allegations provide context, but the judge had already said the legal issues were sufficient to dispose of the application [21]-[23].
The judgment is most directly relevant to a request to inspect or obtain documents produced to a Magistrates Court under witness summonses. Where the dispute concerns whether a Form 1 request is sufficient, the case identifies a distinction between court records under s 33(3) and documents held by the Court in relation to a case under s 33(4) [10]-[14]. The decision’s reasoning is especially tied to the classification of the documents as produced under witness summonses. It does not decide all questions about access to all documents held by a court.
It may also be relevant where a person asks a registrar to check a transcript but has not identified the part said to be inaccurate. The judgment applies r 20 according to its text: a specific part must be identified for the rule’s checking process to arise [15]-[16]. It does not decide what level of detail is sufficient in every possible application.
The summons discussion may be relevant where a proposed witness summons lacks a return date, or where a party relies on an earlier summons to argue that the registry should accept another one [17]-[19]. The court treated the earlier example as inconclusive because the date appeared to have been written by the party, not selected by registry staff. It also noted the possibility of applying for a separate hearing date for return of summonses before trial [18].
The decision arose in an unusual procedural setting: an initial chambers hearing on a review application, with no evidence that the application had been served, and with the plaintiff self-represented [1]-[2]. Those features form part of the context for the Court’s refusal to intervene, particularly on the transcript issue [16]. The judgment does not state that every similar dispute must be dealt with in the same way regardless of its procedural posture or evidence.
The judgment text identifies no cases referred to by the Court. It therefore supplies no direct account of how earlier authorities were applied or distinguished. The material provided also contains no later judgments or citations showing how subsequent courts treated Ives v Johnson. It is not possible, on this source alone, to describe the decision as followed, distinguished, approved, or rejected by later courts.
For research purposes, the safely supportable statement is limited: McKechnie J decided the application on 20 November 2009 and set out the access distinction and procedural requirements described above. The document does not establish the later precedential history. Any account of subsequent treatment would require sources beyond this judgment, which are not included here.
The judgment does not determine whether a particular Form 2 application for access to a particular document should be granted. It says that a Form 2 request may be granted by a registrar or listed for a magistrate, and that the access request may be determined through that process [13]-[14]. The decision therefore explains the route without resolving the outcome of a future application.
The judgment also does not detail how the statutory classification applies to every possible kind of material held by a Magistrates Court. It distinguishes the documents at issue, produced under witness summonses, from court records under s 33(3) [12]-[13]. The precise treatment of other material would depend on its character and the provisions applicable to it; the judgment does not decide those questions.
On transcript checks, the case does not define how narrowly or broadly a person must identify a “specific part” under r 20(1). It records only that Ives had not identified one, and that the registry therefore had not made an error on the facts before the Court [16]. It also does not decide what would follow if a specific passage were identified and the registrar then failed to arrange the required check.
On witness summonses, the judgment states that a summons must have a date and recognises an application for an earlier return hearing [17]-[18]. It does not address other possible defects in summonses, how a return date should be selected where a hearing date changes, or the consequences of non-compliance by a recipient.
Finally, the judgment does not provide a general test for all review orders. It concludes that the materials in this application did not justify one and notes that many matters could have been raised before a magistrate [19]-[20]. Its discussion of the Supreme Court’s ultimate control under s 36 is brief and does not define the scope or limits of that power.
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : IVES -v- JOHNSON [2009] WASC 361
Courts and judges - Review order - Whether grounds - Summons to produce - Whether Registrars must grant access to documents - Checking transcript for accuracy - Whether applicant must specify part of transcript - Early return of witness summons - Turns on own facts
1 McKECHNIE J: (Edited from transcript). There are proceedings pending in the Magistrates Court, for a violence restraining order involving the present plaintiff and another person who is represented by a solicitor. I will refer to that person as the applicant. The present application is for a review order and is supported by an affidavit of the plaintiff sworn 18 November 2009.
2 There is no evidence that the application has yet been served, but this is an initial hearing in any event. The plaintiff seeks that a draft order prepared by him be issued against the Principal Registrar of the Magistrates Court. The draft contains a number of facts and is written in confusing legalese but seems to assume that the registry staff have failed to comply with forms requesting the release of information and have stated that the plaintiff is required to have permission of a magistrate for the access he requests, 'but this is incorrect according to the Rules and Act of the Magistrates Court'.
3 The plaintiff has also requested a check of accuracy of the transcripts and the registry has refused to order that be done. He wishes information be released to him.
4 As far as I can gather, from the papers and his discursive submissions this morning, the plaintiff raises a number of issues. It would appear that he issued a subpoena for certain medical and other records. On 11 June 2009, a magistrate heard an application by the applicant to set aside the witness summonses. The magistrate set aside two witness summonses and adjourned consideration in respect of the third witness summons issued to the applicant's psychiatrist until hearing.
5 Apparently, in response to letters from the plaintiff, the acting registry manager wrote to the plaintiff on 13 August 2009 outlining the position in respect of the documents. The letter deals with a number of matters by number and asserts in part that 'As at 5 June 2009 there were no subpoenaed documents on our file'. The plaintiff takes issue with that and points to statements by the applicant's solicitor to demonstrate that that was wrong. However, on the material I am simply unable to judge whether the applicant's solicitor had access to the witness summons or the documents themselves, and I note the hearing was not indeed for some days afterwards. The acting registry manager's letter said 'There is not and never has been any documents withheld from you' and outlines the need for various forms. That letter was followed by a letter from the named defendant, who is the Principal Registrar, on 31 August 2009 which advises that he is satisfied with the response provided by the acting registry manager and deals with a number of other matters including a request to obtain or inspect a copy of the court record:
I confirm that arrangements can be made for you to listen to the audio recordings tapes, and that the required fee of $25 will be waived. You will need to contact the Manager Court Records (giving a phone number) to make the necessary arrangements.
6 The Principal Registrar dealt with the question of the transcript of the hearing and then said:
Item 3: Request to inspect or obtain copy of a court record (Form 1).
I have reviewed your request for access to obtain copies of subpoenaed documents and advise that these documents will only be released to you on lodgement of a Magistrates Court (General) Rules 2005 Form 2. Application For Leave In Respect Of A Court Record. For your assistance, I have enclosed a copy of this form. On lodgement your application will be listed for a hearing during which a magistrate will determine whether it should be granted or refused.
The court maintains an electronic register of all subpoenaed documents received, which will be made available to you to inspect. Please contact the Manager Court Records, ... to make the necessary arrangements.
Your affidavit sworn 8 May 2009 is on file and you are at liberty to inspect it.
7 There then follows a response about a video-link. That is a matter presently before Simmonds J, although I understand that the plaintiff proposes to discontinue that application.
8 Today the plaintiff has handed up certain other documents. One of those is a response by the restraining orders registry, by email to the plaintiff, dated, it would appear, around about 1 October or 30 September 2009:
Form 1 - Request to inspect or obtain a copy of a court document - Dated 8th June 2009
Form 1 - Request to inspect or obtain a copy of a document - Dated 25 June 2009
1 x Letter from Mercedes College
3 x Letters from Ballantyne Plumbing, Gas & Electrical
1 x Letter from Microsoft Corporation
2 x Letters from Dr Rigg's office
1 x Letter from Officer Bracknell
Form 1 - Request to inspect or obtain a copy of a court document - Dated 22nd July 2009
From 3A - Application for access to information held by the court - Dated 22nd July 2009 [A lengthy response is provided.]
9 So I come to what seems to be the issues. The plaintiff clearly has views about matters but I am required to determine this application strictly on the law.
10 One matter is inspection of subpoenaed documents. Subpoena is an old word and it is more correct to say documents produced under witness summons. The plaintiff asserts that he, the Registrar, must grant leave. In that he is incorrect. Section 33 of the Magistrates Court Act 2004 (WA) says by s 33(3):
A party to a case is entitled, on request, to inspect or obtain a copy of the following documents -
(a) any document that has been lodged with or issued by the Court as required by law and that forms part of the Court's records of the case;
(b) a copy of any document admitted as evidence in the case by the Court;
11 The Magistrates Court (General) Rules 2005 r 37 is entitled 'Request to inspect or obtain copy of a document' (Act s 33(3) or (7)):
(a) must grant the request if the registrar is satisfied that the request is being made by a person who is entitled under the Act (which is a party to proceedings) to inspect or obtain a copy;
(b) otherwise, may list the request for hearing by a magistrate.
12 That section and rule are inapplicable to this case in respect of documents produced to the court under witness summons. The situation is covered by the Magistrates Court Act 2004 (WA) s 33(4) which reads:
With the leave of the Court, a party to a case may -
(a) listen to or view -
(i) any electronic recording tendered to the Court in the case or;
(b) any electronic recording in the proceedings in the case,
and obtain a copy of all or a part of such a recording;
(b) inspect or obtain a copy of any document held by the Court in relation to the case;
(c) inspect any other thing tendered to the Court in the case and, if it is practicable for the Court to make a copy of such a thing, to obtain a copy of it.
13 Documents produced under witness summonses do not form part of s 33. They are not the records of the court; they are documents held by the court in relation to a case. In respect of those documents r 38 of the Magistrates Court (General) Rules applies and says:
(1) An application for leave under section 34(4) must be made by lodging a Form 2.
(2) When the request is lodged a registrar may grant it or list it for hearing by a magistrate.
14 Reading the correspondence I am of opinion that the Magistrates Court registry is correct and the plaintiff may lodge a form 2 and have the matter determined by a magistrate if the registrar declines to grant it. There is no obligation on the registrar to deal with it. In any event in the case of the medical records, a magistrate has set aside the witness summons.
15 The plaintiff also wishes to have the transcript checked for accuracy and has lodged a form in respect of that. The Magistrates Court (General) Rules deal with this as well. Division 4 deals with recording of proceedings. Rule 20 provides:
(1) Whether or not a transcript or copy has been certified under these rules to be accurate, a person may apply to a registrar to have the accuracy of a specific part of the transcript checked.
(2) On such an application a registrar must cause the transcript to be checked for accuracy, corrected if necessary and certified to be accurate.
16 The short answer to this issue is that the plaintiff advised me that he has not in fact referred to a specific part of the transcript for checking. Therefore, no error on the part of the registry presently arises. However, I would not in any event issue a review order for a number of reasons. The first is that the request was made on 14 October 2009, barely a month ago. These proceedings have not been, as I understand it, yet served, and there certainly has been no conferral about matters with a view to reducing the matters in dispute. In any event, the plaintiff thinks that the transcript is inaccurate but has been given the opportunity to listen to the audio tape and has not yet done that. In discretion, I would not intervene even if I thought there was a need to do so.
17 The next issue which is raised is that the plaintiff wishes to issue a witness summons for closed circuit television footage in respect of a particular place of entertainment. The Magistrates Court had advised the plaintiff that the request for the production of the footage was on the wrong form and the form did not have a date of hearing. The registry is correct: a witness summons is to be returnable on the date when the matter is listed for hearing in court, otherwise it is meaningless because a witness summons is to produce a document to the court on a particular date.
18 It is always open for a party to apply for a hearing date specifically for the return of witness summonses before the hearing of the trial but the plaintiff has not done that. The plaintiff says that he has issued subpoenas before which the court has issued which do not have the date. As an example, on exhibit D, which appears to be written by the plaintiff in his own handwriting, he has specified 20 May 2009.
19 The registry has simply dated it and accepted it for filing. That may well be right but it is not an indication that the registry selected the date of 20 May 2009 or even that the clerk who dealt with it would have known the date. It is an insufficient basis for the issue of a mandamus. There is nothing shown in the papers or in the argument by the plaintiff today that would justify a review order at law in any event.
20 Many of the matters could have been raised before a magistrate, such as the last matter to which I referred. That is the principal place where they should be raised recognising of course that this court retains ultimate powers to control court by s 36 of the Magistrates Court Act.
21 That is sufficient to dispose of the matter but I should add this: the plaintiff has made a series of very serious allegations at various times in various correspondence.
22 For instance in an email of 6 October 2009, responding to Mr Gee's earlier email to which I have made reference, he finishes the email this way:
Please understand that I view that court as 100% rotten by corruption, and I tell everyone I know what corruption goes on there. The annoying thing is everyone there pretends they have a right to be proud of their job. I would never feel proud about working somewhere so depraved and completely debauched. I have no respect whatsoever for that registry the only power you have is misused, and I think you're all hypocrites. I would rather work at a hugal and hoil that did business honestly than was mixed up in a deluded world of self conceited criminals.
23 I have to say that I have carefully examined all the documents. I consider that the registry staff who have responded, have responded temperately, appropriately and, as far as I can tell from the material, accurately to all of the many requests made by the plaintiff. His allegations might have provoked a less temperate response by them but I consider they have shown appropriate and proper good humour in responding, notwithstanding the considerable aggravation of wild and unfounded allegations against them. There is no merit in this application and it is dismissed.
Application dismissed.