JC -v- TH [2025] WASC 91 (18 March 2025)

The factual background The comments made by Black DCJ when she delivered judgment

1. Black DCJ's written reasons for decision did not address whether the setting aside of the final FVRO and the remission of the matter to the Magistrates Court would have the effect of reinstating the interim FVRO. As I have mentioned, however, this matter was the subject of discussion during the hearing at which her Honour delivered her reasons for decision.
2. After briefly summarising her reasons for the benefit of the parties, Black DCJ indicated that there were certain matters that she wished to make plain to the plaintiff. The first matter was that (subject to hearing from counsel for the respondent, Mr Cridland) 'the interim violence restraining order that was previously in place should now be in place until there be a rehearing that is run according to law'.[1]
3. After addressing another matter with the plaintiff, Black DCJ then turned to discuss her proposed order with Mr Cridland. The following exchange occurred:[2]

BLACK DCJ:... I will talk to you first, Mr Cridland. My current orders say the appeal is allowed, the costs order made in the Magistrates Court is set aside. Secondly, as the appellant is unrepresented, there shall be no order as to costs in the appeal. And thirdly, the matter is to be remitted to the Magistrates Court for a rehearing before a different magistrate. Do you have any issue with any of those three orders?

CRIDLAND, MR: No, your Honour. And I do note the comment, at least as I've understood it, made for the benefit, I think, largely of JC - - -

BLACK DCJ: Yes.

CRIDLAND, MR: - - - that the interim order continues in place until - - -

BLACK DCJ: Yes.

CRIDLAND, MR: - - - it is finally determined.

BLACK DCJ: Yes. The interim order - so the way I see it - and obviously you can tell me if this is legally wrong - the way I see it is that there's an interim order in place. The thing that stopped the interim order was the making of the final order.

Having now set aside the final order, the matter would revert to the order that was in place until such time as there was a final hearing according to law. If that's wrong, you'll need to reapply for an interim order from the Magistrates Court. But certainly, I should make the life easy for everyone that if my reasoning is wrong in my view there should be an interim order in place - - -

CRIDLAND, MR: Yes.

BLACK DCJ: - - - until such time as the matter is finally determined.

CRIDLAND, MR: I can say I hadn't researched that issue - - -

BLACK DCJ: No.

CRIDLAND, MR: - - - in advance of today. But from first principles, it seems that that is the correct position at law as I would understand it.

BLACK DCJ: I certainly sought the views of others in my court. And it seems that there was, at least of the people I spoke to, no one who was particularly clear on this issue but this is the best I've come up with as to my understanding by looking at the legislation. If there's a flaw in my reasoning that means that it has the outcome of there being no interim order, then my comments on the transcript now, I would have thought, should assist the parties in the matter when it gets back to the Magistrate Court.

CRIDLAND, MR: Yes.

The hearing in the Albany Magistrates Court on 23 August 2024

1. As I have also mentioned, after the proceedings were remitted to the Magistrates Court, a hearing was held on 23 August 2024 before Magistrate O'Donnell at which the re-hearing was programmed to a hearing. Mr G Payne appeared for the applicant. Mr Cridland (the counsel who had appeared before Black DCJ was not present). The plaintiff appeared in person.[3]
2. During the course of that hearing, the plaintiff referred to the observations made by Black DCJ and asked the Magistrate whether he was still subject to the interim order.[4]
3. The Magistrate initially indicated that she was uncertain. She said:[5]

HER HONOUR: But I'm just seeing if I can ascertain from the Restraining Orders Act what it says. So the section on appeals is section 64, but that just sets out the circumstances in which a person can appeal. Okay:

If the decision was made by the Magistrates Court, the appeal is to be made in accordance with Part 7 of the Magistrates Court (Civil Proceedings) Act 2004.

So I don't think - and that statute isn't going to say anything, I don't think, about whether an interim order comes back into place or what happens. I suppose it doesn't. I don't know. Okay. Don't want to waste too much time, but I will have a quick look at the rules or regulations.

Okay. So the term "restraining" doesn't even appear at all in the Magistrates Court (Civil Proceedings) Act, which is as I expected. So I don't think that's going to help, notwithstanding that the appeal proceedings are in accordance with that Act, and the Restraining Orders Act itself doesn't seem to say. It simply has section 64, which determines in what circumstances a person can appeal, and then it doesn't seem to say anything further.

I will just make sure that's the case though. No. On a quick look at it, I can't see an answer there, so, unfortunately, I'm not going to be any help on that subject either, JC, here and now, but I will go away and I will find out. I think at this stage, we have to take it that there isn't an order in place. Well, I don't know, and the police might have a view on that too because if they've received an appeal decision and they consider that that constitutes cancellation, then, obviously, that would mean that they wouldn't be taking any breach action if any breach were reported.

1. Later, however, the Magistrate observed that:[6]

HER HONOUR: Yes. The more I think about it - well, as I say, the decision I don't think helps because I've just referred to the - I have the decision in front of me, and it - I've read out the orders, and her Honour made no orders about a restraining order being back in place, and the more I think about it, the more I think it's more likely that there is no order in place, but that's just my feeling, JC.

I tend to think that the finality of appeal proceedings where the person bound is successful, would be that there then be no order in existence. That is, I think, what the position would be, and then, of course, that doesn't prevent the court from listing straight to a further final order hearing but the existence of the state of affairs between now and then would have an impact on the appropriateness of any order going forward, of course. That's the other thing.

1. Later that day, after the hearing before the Magistrate, the plaintiff received a call from the Western Australian Police stating that the restraining order was still in the system and should any complaint or report of a breach of that order be made, they would act accordingly.[7]

The plaintiff files an application to vary or cancel a restraining order

1. On 26 or 27 August 2024, the plaintiff rang the assistant clerk of the Magistrates Court at Albany and asked why an order was still in the system despite the successful appeal. The clerk was unable to say whether it was a final or interim order that was still in the system and indicated that she would not be prepared to remove the order from the system without a court order. She told the plaintiff that he would need to file an application to vary or cancel a restraining order.[8]
2. On 27 August 2024, the plaintiff submitted an application to vary or cancel a restraining order.[9] In the part of that application which required the plaintiff to state the 'Grounds for Leave to Continue this Application', the plaintiff stated:[10]

The simple fact that no one can tell me by what instrument of law, rule of a court or other, exactly what I am bound by. I tried to lodge a Form 23 but was told I could not lodge it as this was the correct form. The Order made on 1st Sept 2023 was successfully appealed in the District Court on 26th July 2024. Yet the default position is that I am still restrained. According to the Acting Clerk of the Albany Court on Tuesday 27th August 2024, I am restrained by the Interim Order, yet confirmed in front of an Emma that the Final Order is still on the System. Friday 23rd August I was contacted by Albany Police to inform me that as the Order is still on the "system" they would act accordingly to any alleged breach. The Acting Clerk of the Albany Court could not tell me why she is refusing to withdraw the current Final Order from the system despite it being the subject of a successful Appeal. No one could tell me why the default position is that I am still restrained. I Understand that it is to be re tried in Dec 2024, however my question is "what is the rule that states that under these circumstances, I am to be considered the restrained person, and restrained by what"?

1. The plaintiff's application was listed for hearing on 6 September 2024.[11]

The hearing on 6 September 2024 before Magistrate O'Donnell

1. The hearing on 6 September 2024 took place before Magistrate O'Donnell. Mr Cridland appeared by telephone for the applicant. The plaintiff represented himself.[12]
2. Early in the hearing the Magistrate told the plaintiff that she understood that he was seeking clarification about the situation with the order. The plaintiff confirmed that this was correct.[13]
3. The Magistrate then called on Mr Cridland who explained to the Magistrate that he was the counsel who appeared before Black DCJ. He told the Magistrate that when he appeared before Black DCJ on 26 July 2024, he had not had an opportunity to consider the Restraining Orders Act but he had now done so and considered that the relevant provision was s 16(4)(b). He submitted that s 16(4)(b) meant that as there had not been a final order, the interim order remained in place.[14]
4. The Magistrate expressed the view that she also thought that s 64 was relevant and needed to be read with s 16. She expressed the view that the interim order remained in place. Mr Cridland submitted that such a view was consistent with Black DCJ's conclusion.[15]
5. The plaintiff then provided the Magistrate with a transcript of the hearing on 6 September 2024 and read out some relevant sections.[16]
6. The plaintiff then said that there did not appear to be an 'absolute instrument' stating that an interim order is reinstated when there is a successful appeal.[17]
7. The Magistrate said:[18]

HER HONOUR: I think, JC - sorry, I don't want to interrupt you, but I think I can clarify the position for you today. Now, when you say there is no absolute instrument, actually, there is, and it's the Restraining Orders Act. Now, last time I was in two minds myself, as you well remember, but having gone away and thought about it, had another look at the provisions of the Restraining Orders Act, I am satisfied, and I think it's clear, actually, that the appeal is against, in this case, the making of a final order.

That's what your appeal was against. It was successful. So you've successfully appealed against the making of the final order, but it doesn't - her Honour - now, arguably, her Honour might have had jurisdiction if her Honour had felt it necessary - for example, if her Honour had found in the course of proceedings that, in her view, the whole thing had been frivolous or vexatious, her Honour might have had the power to go further and not only allow the appeal but to cancel the - sorry, dismiss the application.

Now, I'm not - that's a slightly different question, but, arguably, she might have had such power. Her Honour certainly didn't delve into that, and so the effect of her Honour's decision is to grant the appeal against the making of the final order. Her Honour's view at the time was that the interim order remained in place. However, her Honour did not point to any particular statutory provision, but with respect to her Honour, I think she's correct because it's - as I say, I keep coming back to the terms of section 64.

It's an appeal against the making of the final order. So that's successful, but the underlying interim order is not disturbed unless there is a specific order of that appeal court, and there wasn't. So, to my mind, it remains in place, and, also, I think that is fortified by, as Mr Cridland says, section 16, which is not a section I had had regard to until this morning in this context.

But I think Mr Cridland is correct in referring to that as well. So that fortifies my view that, absolutely, the interim order comes back into place. Now, as regards the terms of it, my view would be that it should be the terms of the original interim order. I think there was some amendment that was made at the final order hearing.

1. The Magistrate then indicated that she proposed to 'formalise an outcome' so that the interim order was reinstated.[19] She then made an interim FVRO in the same terms as the interim FVRO made by Magistrate Scadden, other than updating a residential address.[20]

The plaintiff attempts to appeal to the District Court

1. On 17 September 2024, the plaintiff lodged a Notice of Appeal with the District Court.[21]
2. The District Court initially informed the plaintiff that that appeal would be set down for hearing at 10:30 am on 8 October 2024.[22]
3. On 20 September 2024, however, the District Court sent the plaintiff an email indicating that his appeal could not be accepted for filing because only a final FVRO can be appealed to the District Court.[23]

The further hearing on 6 October 2024 before Magistrate Young

1. On 16 October 2024, Magistrate Young called the proceedings on in the Magistrates Court in Albany to see if there was any prospect that they might be resolved[24] and to discuss the length of time for which the trial had been set down.[25]
2. During that hearing the plaintiff raised with Magistrate Young the question of whether an interim order was in place. He asserted that 'it has already been established by the West Australian Supreme Court' that when a final order is remitted back to the Magistrates Court, the associated interim order must be set aside.[26] The following exchange occurred:

JC: Yes. And as a result of that successful appeal, there was brought to my attention that administratively there had been some errors and a final order was still left within the system. The only way to address that issue was - I was informed - that that had to be via an application to - I can't remember the name of the - the form, but it was an application to - I think it was amend or cease or get rid of a - an order. That was - that was heard back in September, but during that - and that - the purpose of that hearing was to fix - to get out of the system, the final order, that was still in the system after the successful appeal. However, during that hearing, Magistrate O'Donnell felt it - Magistrate O'Donnell felt it necessary to reinstate the interim order. Now, it has already been established by the West Australian Supreme Court that when a final order is remitted back to the Magistrate's court, the associated interim order must be set aside.

And that point, I - I wasn't aware of this particular matter at the time, but my argument was there's no instrument within the current Act that allows for an interim order to be reinstated because interim orders, as stated in the Act, are only in force until the making of a final order. There's nothing in - - -

HIS HONOUR: Okay, well, I will - - -

JC: - - - the Act - - -

HIS HONOUR: - - - just stop you there - just stop there. I mean, look, I - I don't know quite where this is going, and I don't know that - the relevance of it. I must - - -

JC: The - - -

HIS HONOUR: - - - say, if - if you want - if it does have some relevance you - you can argue that - that before me. You can - not - not today, but at a future date, but I must say, my - my view would be - on a matter of logic - to - to the contrary. My view would be that the setting aside of the final order simply means that the - that the - the status quo is resumed, and the interim order stays in place.

1. The plaintiff raised the issue again with Magistrate Young and Magistrate Young indicated that he was attempting to encourage the parties to take a pragmatic approach. During that exchange the plaintiff read out a passage from a Supreme Court decision:[27]

HIS HONOUR: - - - stop, stop, stop, stop. Okay, that - that's another - that's a separate issue. Okay? I mean, you are - I - it's something which I will flatly say I - I don't particularly like, but I - I - I - I can't deny your right to simply say, "I - I dispute the grounds of this restraining order and I want to have as long as I want to take to refuse it in court."

Now, I'm focusing on - on - on the practical, rather than the - the - the - the personal because, from a - from a - a practical point of view, I really can't see why - and again, I will repeat, the only practical issue - okay, leaving aside your sense of personal affront at the order being - being made against you - and, I mean, that - that - that can obviously be - be - be avoided by - by other means - but leaving aside your sense of personal affront, the only practical restriction is the 20 metres from the applicant's house and that, I will say bluntly, is something I regard as trifling.

JC: But the point of law that I'm - I'm - I'm attempting to make here is that it has already been established by the Supreme Court that, irrespective of what may appear to be logic, that - and I will just - I will just quote here,

This is, finally, I'm of the view that the interim order of 16 November 2004 must be set aside, also. It will be open to the respondent to renew her application for relief when the original application is remitted back to the Magistrate's Court for rehearing.

Now, those very same words were used in the District Court hearing, before - - -

HIS HONOUR: Yes. Okay - - -

JC: - - - Judge - - -

HIS HONOUR: - - - anyway - - -

JC: - - - Black.

HIS HONOUR: - - - but - okay. And - well, just - just stop there. I mean, look, if - if, JC, if you wanted to come to court and say that you're not settling this on any - on any basis, come hell or high water, this is going to trial, and it will take as long as it takes, just tell me, okay? Don't cite law, just say, no, you - you're in this for the long haul, and that's that.

JC: For the various reasons that I've previously - - -

HIS HONOUR: Okay.

1. Later, a similar exchange occurred:[28]

JC: But can I just - I need to bring your attention to - this needs - this needs to be said whilst we're in court now. Again, a Supreme Court decision:

It is trite to say that a violence restraining order is not to be made lightly. It stigmatises the respondent as a violent person from whom another person or person needs to be protected by the court.

HIS HONOUR: I know the law, JC.

JC: That is what makes these comments relevant regarding certain ministers, the Director-General, because there had been other restraining orders placed on me based on this. That is why that makes that very, very relevant. And this interim order, I don't believe, has been applied legally because, as stated previously, in the West Australian Supreme Court says that the SO, which is very, very similar to this matter here, which is Thames v Thames says must be set aside:

I'm of the view that the interim order of 16 November must be set aside. It will be open to the respondent to renew our application for relief when the original application is remitted back to the learned magistrate for rehearing in light of these reasons. There will be no orders to costs.

That's virtually verbatim as to what was stated in the District Court, and I don't understand, no one has been able to put to me now anything in the Act that triggers the reinstatement of an order, of an interim order, that was in force until the final order was made. Do you agree that that is not the case?

HIS HONOUR: No, I don't agree. But secondly, who cares? Why is that relevant? The point and the fact remains that you have, hopefully at least, acted as though the restraining order has been in place for 18 months. But unusually, rather than just adapting your lifestyle to that and becoming accustomed to it, we find ourselves as far apart as we've ever been. The issue is that with the state of the interim order in the meantime, in my view, is utterly irrelevant. If you want to use up yet more court time at the final order hearing date to persuade me of something which has no bearing on the outcome of the case, then you can do that. All right.

1. Section 39 of the Magistrates Court Act provides:
   1. Transfer of Magistrates Court case to superior court

superior court means the District Court or the Supreme Court.

(2) A party to a case in the Court may apply to a superior court for an order that all or a part of the case be transferred to the superior court.

(3) The application must be made in accordance with rules of court that apply in the superior court.

(4) The superior court may make such an order if it is satisfied that all or a part of the case is within its jurisdiction and -

(a) involves a claim by the claimant or another party, or an issue, that is outside the Magistrates Court's jurisdiction; or

(b) should be dealt with by the superior court because of its complexity or because of a question of law involved.

The plaintiff's motion for the transfer of the Magistrates Court proceedings to this court

1. The plaintiff's originating motion identifies that his application is made pursuant to s 39(4)(b) and that there is a question of law involved.
2. Although the plaintiff did not file any submissions in support of his motion, in the affidavit that the plaintiff filed in support of his originating motion, he identified as a 'point of law' whether or not a restraining order had been put in place contrary to the Restraining Orders Act.[29] The plaintiff's affidavit also separately alleged that Magistrate Young had displayed bias[30] and deliberately delayed proceedings.[31]
3. On 29 November 2024, the Associate to Registrar Griffin of the Supreme Court of Western Australia sent an email to the plaintiff in the following terms:[32]

I refer to the originating motion lodged on 1 November 2024 seeking to transfer Magistrates Court proceeding 148/2023 to the Supreme Court, on the basis that s 39(4)(b) of the Magistrates Court (Civil Proceedings) Act 2004 is enlivened because a question of law is involved.

It is not clear exactly what you contend is the question of law which must be determined by the Supreme Court. You have mentioned delay and potential bias in the Magistrates Court as part of your supporting affidavit. It appears that you are dissatisfied with an order made on 6 September 2024, and, further, with Magistrate Young's comments on 16 October 2024. Those are not questions of law.

Paragraph 16 of your supporting affidavit does, however, refer to a question as to the interpretation of the Restraining Orders Act which arguably raises a question of law.

Accordingly, the originating motion is accepted for filing. Please note that the acceptance of the application does not mean that your matter is being transferred to the Supreme Court. A judge must consider the application and decide whether the transfer application will be granted.

1. Paragraph 16 of the plaintiff's affidavit of 31 October 2024 concerned whether an interim FVRO had been reinstated following the remission of the proceedings to the Magistrates Court.
2. On 11 March 2025, the plaintiff filed a further affidavit[33] which referred to:

(a) different proceedings involving a violence restraining order and the delays associated with that matter;[34]

(b) what he said were 'questionable decisions' in the Magistrates Court and referred to various matters discussed above relating to whether or not an interim order is in place;[35] and

(c) stigma he claimed that he has suffered as a result of the suggestion that an interim FVRO was in place, including Legal Aid refusing funding for an appeal to the District Court, a prohibition order made by a school principal and a refusal by Anglicare WA to provide court services.[36]

1. At the hearing before me the plaintiff also referred to what he described as Magistrate Young's unwillingness to overrule the decision of another Magistrate and what he said were admissions made by the applicant for the final FVRO. He also expressed his frustration at the proceedings in the Magistrates Court.

Whether the proceedings should be transferred to the Supreme Court

1. Section 39(4)(b) of the Magistrates Court Act relevantly provides that this court may transfer proceedings from the Magistrates Court to this court if it is satisfied that all or a part of the case is within its jurisdiction and should be dealt with by this court because of a question of law involved.
2. The only point of law that the plaintiff has identified is whether or not an interim FVRO remains in place following the remission of the proceedings to the Magistrates Court. I do not consider that this issue warrants the transfer of the proceedings from the Magistrates Court for three reasons.
3. First, the question of law identified by the plaintiff is not a matter to be determined in the present proceedings in the Magistrates Court. Those proceedings concern whether or not a final FVRO should be made. The determination of that issue, does not require consideration of whether or not the remission of the proceedings reinstituted an interim FVRO. Therefore, the question of law raised by the plaintiff would not be considered by this court even if the Magistrates Court proceedings were transferred here.
4. Secondly, the plaintiff has now instituted separate proceedings in this court (CIV 1050 of 2025) seeking a review of a decision made in the Magistrates Court relating to whether an interim order remains in place. Those proceedings raise more squarely for consideration whether or not the remission of the proceedings reinstituted an interim FVRO. If this issue is to be considered (which will be determined separately in action CIV 1050 of 2025) it is best considered in those other proceedings.
5. Thirdly, the question of whether or not a final FVRO should be granted was remitted to the Magistrates Court by Black DCJ for re-hearing and the determination of such matters is routinely done in the Magistrates Court.
6. The plaintiff's submissions do not otherwise identify a question of law that arises for determination in the Magistrates Court proceedings that it is suggested should be determined by this Court. That the plaintiff is generally dissatisfied with the proceedings in the Magistrates Court or otherwise feels aggrieved is not a sufficient reason to transfer those proceedings to the Supreme Court under s 39(4)(b) of the Act.

The hearing of these proceedings on an ex parte basis

1. The plaintiff commenced these proceedings on an ex parte basis. When these proceedings were first listed before me, I indicated that I thought that it would be necessary to serve these proceedings on the other party to the proceedings in the Magistrates Court.
2. The plaintiff asked that a hearing occur prior to 21 March 2025. To facilitate this, I indicated that I was prepared to initially hear the plaintiff's application on an ex parte basis but I indicated that a subsequent inter parties hearing might be required. Given the conclusion I have reached, however, no subsequent hearing is necessary.

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

[1] Affidavit of JC Sworn 6 March (JC Affidavit), Attachment S, page 262. This affidavit was filed in CIV 1050 of 2025 but the plaintiff has sought to rely on it in these proceedings: Affidavit of JC sworn 11 March 2025 (11 March Affidavit), par 2.

[2] JC Affidavit, Attachment S, pages 263 - 264.

[4] JC Affidavit, Attachment C, page 26.

[5] JC Affidavit, Attachment C, page 28.

[6] JC Affidavit, Attachment C, page 31.

[10] JC Affidavit, Attachment E, page 36.

[13] JC Affidavit, Attachment F, page 41.

[14] JC Affidavit, Attachment F, pages 41 - 42.

[15] JC Affidavit, Attachment F, page 42.

[16] JC Affidavit, Attachment F, page 42 - 43.

[17] JC Affidavit, Attachment F, page 44.

[18] JC Affidavit, Attachment F, page 45.

[19] JC Affidavit, Attachment F, pages 46 - 48.

[20] JC Affidavit, Attachment F, pages 46 - 56 and Attachment G.

[21] JC Affidavit, par 15, Attachment H.

[22] JC Affidavit, par 16, Attachment I.

[23] JC Affidavit, par 17, Attachment J.

[24] JC Affidavit, Attachment K, pages 72.

[25] JC Affidavit, Attachment K, pages 76 - 77.

[26] JC Affidavit, Attachment K, pages 73 - 74.

[27] JC Affidavit, Attachment K, pages 75 - 76.

[28] JC Affidavit, Attachment K, pages 96 - 97.

[29] Affidavit of JC sworn 31 October 2024 (31 October Affidavit), par 15.

[30] 31 October Affidavit, pars 18 - 20.

[31] 31 October Affidavit, pars 21 - 23.