KSJ v GJA

Appeal - Restraining Orders Act 1997 (WA) - Appeal from a Magistrate's decision awarding costs against the appellant - Whether right of appeal - Striking out of appeal grounds

District Court Rules 2005 (WA), s 57

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40, s 43

Restraining Orders Act 1997 (WA), s 64

KSJ v GJA [2021] WASCA 98

Lovelady v Griffiths [2018] WADC 180

[This decision was delivered extemporaneously on 24 March 2026 and edited from the transcript.]

1. This is an application in an appeal by the respondent, to strike out all five of the grounds of appeal in the appeal notice of 10 November 2025. The appeal notice states that the appeal is against the decision:

That is a reference to Mr Cole's application before Magistrate Young, for the respondent, Ms Hayley, to pay Mr Cole's costs, as a consequence of Magistrate Young's decision to dismiss Ms Hayley's family violence restraining order application on 5 August 2025. However, Mr Cole's affidavit of 10 February 2026 at pars 6 and 10 and his written submissions dated 6 March 2026 at pars 1 and 2, make it clear that Mr Cole is no longer pursuing an appeal against the decision to dismiss his application for costs.

1. Rather, his appeal is against Magistrate Young's decision to award costs in respect of the cost application against Mr Cole, in the sum of $850. If appropriate, I would have entertained an application by Mr Cole to amend the existing notice of appeal, to reflect that latter contention. My decision on the strike out application would, however, be the same, whether the appeal was in respect of the refusal of an application before Magistrate Young for the respondent, Ms Hayley, to pay Mr Cole's costs or as it now is, if it was against Magistrate Young's decision to award costs against Mr Cole in the sum of $850.
2. As discussed with the parties, in the decision of KSJ v GJA [2021] WASCA 98, the Court of Appeal said, as follows, at [81]:

A provision such as s 40(1) of the Magistrates Court (Civil Proceedings) Act has the dual function of conferring a right of appeal on the parties identified in the provision and conferring jurisdiction on the court to which the appeal may be brought. Consequently, such a provision engages the well-established principle that it is inappropriate to read provisions conferring jurisdiction or granting powers to a court, by making implications or imposing limitations which are not found in the express words. Further, the existence of two overlapping rights of appeal is far from unheard of.

(footnote omitted)

Nevertheless for the reasons that follow, in our opinion, the elaborate stipulation in s 64 of the Restraining Orders Act of rights of appeal in relation to specified species of decisions under the Restraining Orders Act, should be taken to be intended to be exhaustive, so as to exclude the general and broad right of appeal conferred by s 40(1) of the Magistrates Court (Civil Proceedings) Act against orders made in the course of proceedings in the Magistrates Court.

1. I find that Mr Cole can only appeal the cost order made against him if his appeal fits within the constraints of s 64 of the Restraining Orders Act 1997 (WA). Mr Cole appeared to accept as much in this hearing. Mr Cole also, ultimately, accepted that Magistrate Young did not make a final order. Mr Cole says that the avenue for his appeal is that he is aggrieved by Magistrate Young's decision to make any other order, that is to say the $850 costs order, in relation to a final order.
2. The critical question is, given that Magistrate Young, in dismissing Ms Hayley's application, did not make a final order, can it be said that the order for costs can be construed as being an order in relation to a final order? Mr Cole submits that it can because, essentially, they arise out of the same proceedings.
3. I respectfully agree with the reasoning of his Honour Judge Staude, in the case of Lovelady v Griffiths [2018] WADC 180 at [28] - [37], which is a decision which is entirely consistent with the slightly later and, of course, binding decision of the Court of Appeal, that I have cited in KSJ v GJA. In my view, it is irrelevant that Lovelady v Griffiths concerned a refusal to order costs, as opposed to, as is now pressed in the affidavit and submissions, a decision to order a payment of costs.
4. In [33] of his decision, Staude DCJ said that s 64(1)(b)(iii) of the Restraining Orders Act which is the avenue through which Mr Cole seeks to put his appeal, refers to a decision to:

'Make any other order, in relation to a final order'.

1. His Honour stated that expression describes an order that is ancillary to a final order. In his Honour's view, it comprehends a cost order, in relation to a final order: see [33].
2. His Honour said at [34]:

In this case, however, there was no final order. It follows that an order refusing an application for costs, consequent upon the refusal to make a final order is not appealable. That result, in my view, does not lead to an absurdity or to some repugnance or inconsistency with the rest of the section, so as to require modification of the grammatical and ordinary sense of the words used.

The appellant's contentions, to be upheld, would require the court to add meaning to s 64(1) that it not given by the words used and that Parliament may not have intended.

1. I am satisfied that his Honour would have reached precisely the same conclusion, with which I agree, if his Honour was dealing with an order for costs, where there was no final order. It is the absence of a final order that is critical. The Court of Appeal in KSJ v GJA expressly stated that their holding was consistent with a number of cases, including Lovelady v Griffiths, which they refer to at [104]. I do note that in KSJ v GJA, the Court of Appeal, noted at [105], the conclusion that they had reached does not mean that a decision of a magistrate in Restraining Orders Act proceedings that does not fall within s 64 of the Act, is entirely free of any review.
2. Section 36 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) empowers a person who is aggrieved by a decision of the Magistrates Court, to apply to have the decision judicially reviewed by the Supreme Court. Such a review is concerned solely with the legality of the decision and is not a review or appeal on the merits. Such a review is capable of encompassing a complaint of the kind referred to in the appellant's submission, in that case, as summarised at par 71, and that judgement, namely breach of procedural fairness or failure to comply with requirements of the legislation.
3. Here, of course, I note that Mr Cole does complain of a breach of procedural fairness. In my view, it would torture the English language, to say that Magistrate Young's order that Mr Cole pay costs, was in relation to a final order, when there is no final order. It would require, as Judge Staude noted, to read in words that do not appear in the statute, namely, 'or an application for a final order'.
4. I find, therefore, that neither s 64(1) of the Restraining Orders Act, nor s 40 of the Magistrates Court (Civil Proceedings) Act affords a right of appeal from the decision complained of. I appreciate that Mr Cole is aggrieved by the fact that he says he was not permitted to make any submissions against the making of a cost order, as against him.
5. But if there is no avenue of appeal to this court, and in my view, there is not, that refusal to listen to Mr Cole, even if that is the case, becomes irrelevant for the purposes of this appeal and could only be potentially relevant, as I have said, if there was an application for a judicial review, based upon an alleged breach of procedural fairness.
6. Under r 57 of the District Court Rules 2005 (WA) before the hearing of an appeal, the court on an application, may order the notice of appeal or any part of it, to be struck out. I am satisfied that it is also a power within the court's inherent power. Under s 43(4) of the Magistrates Court (Civil Proceedings) Act, the Appeal Court may strike out any ground of the appeal, if:

(b) the ground does not have a reasonable prospect of succeeding.

1. Section 43(6) of the Magistrates Court (Civil Proceedings) Act provides, if the Appeal Court strikes out all of the grounds of the appeal, the court may give judgment accordingly, without a full hearing of the appeal. For the reasons that I have just explained, that is to say, this appeal must proceed through the prism of s 64 and the nature of this appeal is such that it does not come within the terms of that section, I am comfortably of the view that for each of the five grounds of appeal, in each case, there is no reasonable basis for it. And, also, that for each of the five grounds, each does not have a reasonable prospect of succeeding.
2. As I have said, if the court strikes out all of the grounds of the appeal, the court may give judgment accordingly, without a full hearing of the appeal, under s 43(7)(a) of the Magistrates Court (Civil Proceedings) Act, I therefore, confirm Magistrate Young's judgment, whereby he ordered Mr Cole to pay $850 in costs.
3. What I have said, in reading my reasons into the transcript will, in due course, be the subject of a short written judgment, once any infelicities in language have been adjusted.

TROY DCJ: Now, Mr Cridland, are there any other applications?

CRIDLAND, MR: Now, rule 59(1) starts out with the awarding of costs of an incidental to an appeal, is in the discretion of the court. And then, sub rule (2) is that on determining appeal, the court may fix the amount of costs. And rather than go to a taxation - - -

TROY DCJ: Sorry, the last bit about taxation.

CRIDLAND, MR: Sorry. I will speak up, your Honour.

TROY DCJ: Thank you.

CRIDLAND, MR: I do it - - -

TROY DCJ: It's my fault, not yours, Mr Cridland.

CRIDLAND, MR: I doubt it. Rule 59(2).

TROY DCJ: Yes.

CRIDLAND, MR: On determining an appeal, the court may fix the amount of costs.

...

TROY DCJ: All right. Thank you.

Mr Cole, did you want to make any submissions on the question of costs?

THE RESPONDENT: Doesn't really seem to be any point, your Honour. I will say that there's been five unsuccessful family domestic violence hearings, and successful appeal, a successful, remitted appeal, where it's established that she [Ms Hayley] essentially lied to obtain the very first family violence restraining order.

1. In my view, the costs should follow the event. In the exercise of my discretion, it is clearly appropriate to order that Mr Cole pay the costs of the applicant. The amount that is sought is comparatively modest. Given the costs that have been incurred, I will fix it accordingly at $2,500:

TROY DCJ: Are there any orders I need to make in order to give effect to that, which I have articulated?

CRIDLAND, MR: I don't think so, your Honour.

TROY DCJ: All right. So - - -

CRIDLAND, MR: You've struck out the appeal.

TROY DCJ: - - - I have confirmed Magistrate Young's judgment, whereby he ordered Mr Cole to pay $850 in costs. I have ordered Mr Cole to pay costs fixed at $2,500, as to the cost of this appeal, under s 43(7)(e), there are no other orders, I don't think I need to make - - -

CRIDLAND, MR: No, your Honour.

TROY DCJ: Thank you. And as I say, what I rendered by way of an oral decision, will be a written decision, in due course. Thank you, Mr Cridland. Thank you, Mr Cole. This matter is accordingly adjourned.

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