Practice and procedure - Whether any grounds have reasonable prospect of succeeding pursuant to r 43(2)(g)(i) of Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether District Court erred in concluding that there was no right of appeal where Magistrates Court struck out application for misconduct restraining order under Restraining Orders Act 1997 (WA) as an abuse of process - Exercise of implied power - Whether right to appeal under Magistrates Court (Civil Proceedings) Act 2004 (WA) - Whether miscarriage of justice would occur if ground struck out even if grounds were arguable

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 6, s 8, s 40

Magistrates Court Act 2004 (WA), s 9

Restraining Orders Act 1997 (WA), s 3, s 7A, s 34, s 35, s 36, s 64

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Second Respondent : McLeods Barristers & Solicitors

Ferguson v Carnochan (1889) 2 White 278; (1889) 26 SLR 624

Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1

New South Wales v Tyszyk [2008] NSWCA 107

Nilsson v McDonald [2009] TASSC 66; (2009) 19 Tas R 173

1 This matter came before the court on 24 August 2015 pursuant to a registrar's notice to attend dated 22 July 2015 to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.

2 The appeal to this court is against a decision of Birmingham DCJ made on 12 December 2014, in which his Honour dismissed the appellant's appeal to the District Court, from a decision of Magistrate Lawrence to strike out the appellant's misconduct restraining order (MRO) applications on 8 September 2014.

3 At the hearing on 24 August 2015 the following orders were made by this court:

1. The appellant file and serve within 14 days an affidavit containing any evidence the appellant wanted to adduce before Magistrate Lawrence in the application for a misconduct restraining order heard on 8 September 2014.
2. The respondent within 14 days of receipt of the appellant's affidavit file and serve written submissions as to:

1. whether the evidence adduced in the appellant's affidavit supports an arguable claim under the misconduct restraining order provision of the Restraining Orders Act 1997 (WA); 2. the source of Magistrate Lawrence's jurisdiction to summarily determine the application for the misconduct restraining order, including whether the source of the power is in the Restraining Orders Act 1997 (WA) and/or in the Magistrates Court (Civil Proceedings) Act 2004 (WA); and

1. whether the appeal provisions of the Restraining Orders Act 1997 (WA) and/or the Magistrates Court (Civil Proceedings) Act 2004 (WA) apply to the appeal from the decision of Magistrate Lawrence.
2. The appellant within 7 days of receipt of the respondent's submissions file and serve any written submissions in response.
3. The notice that the appellant show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005, on the basis that none of the grounds has a reasonable prospect of succeeding, be determined on the papers, unless the Court otherwise orders.
4. Costs of today be reserved.

4 The appellant says that he is a part-owner of a property in Wandina in Geraldton (Admiral Link property). The appellant says that he is completing a 'build' at the property.

5 The first and second respondents are individuals employed by the City of Greater Geraldton (City). The first respondent is an Infrastructure Headworks Site and Delivery Manager employed by the City, and the second respondent is the City's Director of Community Infrastructure. The City undertook certain road construction works on Verita Road in 2013. The road construction works on Verita Road are, according to the appellant, approximately 75 m away from the Admiral Link property. The respondents put the distance at about 100 m or 150 m.

6 According to the appellant, the road works involved heavy compaction.

7 The appellant applied for an MRO against each of the respondents on 17 July 2014. In each application, he complained that vibrations caused by the use of compactors at the works on Verita Road had caused damage to the Admiral Link property, and that the respondents' conduct had resulted in significant loss of time, financial loss and emotional distress both to the appellant and to other parties.

8 The hearing of the appellant's MRO applications was scheduled for 8 August 2014. On 7 August 2014, the respondents forwarded to the Principal Registrar at the Geraldton Magistrates Court, applications to have the appellant's MRO applications struck out on the basis that they constituted an abuse of process. The applications were supported by submissions and affidavits by the respondents and their solicitor.

9 At the hearing on 8 August 2014, Magistrate Lawrence directed that the respondents serve on the appellant the applications to strike out and affidavits in support, and that the appellant serve on the respondents a responding affidavit.

10 On 26 August 2014, the appellant filed an affidavit and submissions pursuant to the direction made on 8 August 2014. The submissions included:

1. My application should be allowed to proceed because the Court should allow every party every opportunity to deal with wrong acts that in this case has led to the breach of the peace and may lead to the breach of the peace. The test the Court should be [taking] in consideration (if it prefers) are:

(a) It is alleged that the respondent used heavy compaction(s) wrongly to cause the breach of the peace because of previous matters in Court.

(b) The respondents' invitation of any issues in the build to contact them - where contact was made by correspondence with no response and in person not referred to in Respondents' Affidavit.

(c) The heavy, overuse, sporadic use, inappropriate and inconsistent compaction was set to subject damage and breach of the peace by torment, mental anguish, and damage knowingly by the Respondents.

(d) The reasoning of actions of the Respondents' has caused me to reserve in part the presentation of claim as it involves wrongs acts in law before the Court.

(e) I received information from the Respondent[s] that documentation [would] be made available that to present has not been presented.

(f) Information received from the party that the Respondents' [sic] will not take positive action to remedy damage to property or explain their wrong acts in law, as per requirement in Government standards.

(g) I was advised by the Respondent[s] that the Verita Road project may take more than a year to complete, implying and inferring that heavy machinery will continue to be used which has great impact on repairs to property and completion, and delay in my ability to earn an income. This information received from the [respondents] is contrary to information received from [a] senior member of the City of Greater Geraldton.

(h) The Court should seek to hear the Respondents' reasons of being compelled by the City of Greater Geraldton to use heavy compaction of compacted land.

1. It is not my intention to circumvent the facts before the Court and I intend to seek every opportunity before the Court to demonstrate wrong actions in law to preserve the breach of the peace to me and other parties. It is my view no person should be immune in this case to use their office of privilege to cause a breach of the peace and to attempt to circumvent facts with malicious actions or wrongs in law.

1. It is my view that I am correct in law to have demonstrated a prima faci[e] claim and reserved facts and circumvented facts to detract a breach of the peace application. I am correct in law to seek judicial ... review of the Respondents' actions that have [led] and may lead to the breach of the peace in law, either with or without consent from their employer the City of Greater Geraldton.
2. The Court should not assess my claim on a balance of probability moreover on the circumstances as claimed that involve ... circumvented facts and wrong actions in law breach of the peace and may lead to a breach of the peace. The claim of wrong at law action or actions to cause harm for the purpose to detract natural justice is a matter for the Court to deal with after full opportunity and facts being presented and argued before making summary judgment after trial.

1. The Court should also take lead that the residences and residents in the proximity have identified concerns of action of the Respondents with direct link to damage. Of concern, the Respondents failed to adhere to the concerns of its residents for the purpose of action to heavy compact, knowing that the consequences of their actions due to their preferred vocation and position of authority working for the City of Greater Geraldton. Their ignoring of concerns is repressible and oppressive. The Respondents are professional engineers and should or ought to know that action causing wave and tremor does cause damage to property. To allow the actions of the Respondent[s] to heavy compact without control or overview knowing what I know is repressible and may be wrong in law also. This application of breach of the peace and may lead to breach of the peace in my view correct in law and as per elementary forensic evidence.

1. I am concerned that the Respondents' and employees will seek to circumvent facts to detract the public or parties from seeking opportunity to remedy damage suffered. It is my view damage is the product of the breach of the peace and may lead to further breaches of the peace to investigate, deal with want to remedy damage.
2. In light of point 11, Application for order for the Respondents['], employer, employer's servant, employees, contractor's to contact parties that suffered damage to property and witnessed vibration on property that may be preferred in trial [sic]. (emphasis added)

11 Magistrate Lawrence heard the parties on the applications to strike out the MRO applications on 8 September 2014.

12 At the hearing on 8 September 2014, the appellant explained the evidence upon which he proposed to rely in support of his applications, and the nature of his claims.[1]

13 The respondents submitted that the applications for MROs constituted an abuse of process and disclosed no arguable basis for relief. The respondents also submitted that the MRO applications were made in an attempt to prevent or obstruct the road works being carried out by the City.

Restraining Orders Act 1997 (WA): pt 3

14 Before turning to Magistrate Lawrence's decision, it is convenient to set out the relevant provisions of the Restraining Orders Act 1997 (WA).

15 Part 3 of the Restraining Orders Act is headed 'Misconduct restraining order'. It contains sections 34 - 36 which are in the following terms:

A court may make a misconduct restraining order if it is satisfied that -

(a) unless restrained, the respondent is likely to -

(i) behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or

(ii) cause damage to property owned by, or in the possession of, the person seeking to be protected; or

(iii) behave in a manner that is, or is likely to lead to, a breach of the peace;

(b) granting a misconduct restraining order is appropriate in the circumstances. (emphasis added)

(1) When considering whether to make a misconduct restraining order for reasons referred to in section 34(a)(i) or (ii) and the terms of the order a court is to have regard to -

(i) the person seeking to be protected is protected from intimidatory or offensive behaviour; and

(ii) property owned by, or in the possession of, the person seeking to be protected is protected from damage;

(b) the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;

(c) the accommodation needs of the respondent and the person seeking to be protected;

(d) hardship that may be caused to the respondent if the order is made;

[(e) deleted]

(f) other current legal proceedings involving the respondent or the person seeking to be protected;

(g) any criminal record of the respondent;

(h) any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; and

(i) other matters the court considers relevant.

(2) When considering whether to make a misconduct restraining order for reasons referred to in section 34(a)(iii) and the terms of the order a court is to have regard to -

(a) the need to ensure that the public is protected from breaches of the peace;

(b) the wellbeing of children who are likely to be affected by the respondent's behaviour or the operation of the proposed order;

(c) the accommodation needs of the respondent; and

(d) hardship that may be caused to the respondent if the order is made;

[(e) deleted]

(f) any criminal record of the respondent;

(g) other current legal proceedings involving the respondent; and

(h) other matters the court considers relevant.

(3) A court is to have regard to the matters set out in subsection (1)(a) and (b) or (2)(a) and (b) as being of primary importance.

(1) In making a misconduct restraining order a court may impose such restraints on the lawful activities and behaviour of the respondent as the court considers appropriate to prevent the respondent -

(a) behaving in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected;

(b) causing damage to property owned by, or in the possession of, the person seeking to be protected; or

(c) behaving in a manner that is, or is likely to lead to, a breach of the peace.

(2) Without limiting the restraints that may be imposed for the purposes of subsection (1)(a) or (b), a court may restrain the respondent from doing all or any of the following -

(a) being on or near premises where the person seeking to be protected lives or works;

(b) being on or near specified premises or in a specified locality or place;

(c) approaching within a specified distance of the person seeking to be protected;

(d) communicating, or attempting to communicate, (by whatever means) with the person seeking to be protected;

[(e) deleted]

(f) being in possession of a firearm or firearms licence, or applying for a firearms licence;

(g) causing or allowing another person to engage in conduct of a type referred to in paragraphs (a) to (f).

(3) Without limiting the restraints that may be imposed for the purposes of subsection (1)(c), a court may restrain the respondent from doing all or any of the following -

(a) being on or near specified premises or in a specified locality or place;

(b) engaging in behaviour of a specified kind, either at all or in a specified place, at a specified time or in a specified manner; or

(c) being in possession of a firearm or firearms licence, or applying for a firearms licence.

(4) A restraint may be imposed on the respondent absolutely or on such terms as the court considers appropriate.

(5) A misconduct restraining order may restrain the respondent from entering or remaining in a place, or restrict the respondent's access to a place, even if the respondent has a legal or equitable right to be at the place.

(6) If a misconduct restraining order restrains the respondent from being in possession of a firearm or firearms licence, or applying for a firearms licence, sections 14 and 62E apply as if the misconduct restraining order were a violence restraining order.

16 Magistrate Lawrence said that the alleged 'breach of the peace' was the key aspect of the appellant's complaint.[2]

17 The magistrate found, in effect, that the term 'breach of the peace' had a legal meaning, and that it had no arguable application to the appellant's complaint. The magistrate said:[3]

[T]here can be no doubt that the phrase 'breach of the peace' has been familiar to the law for a considerable time. It was sometimes referred to as 'the King's peace'. P W Nichols in his text Police Offences of Western Australia at page 47 cites the Canadian decision of R v Magee (1923) 3 WLR 55, where it was held that 'the King's peace' meant:

'The general peace and order of the realm as provided for by the law.'

'... a quiet and harmless behaviour towards the King and his people.'

Further on in his text, on the same page, the learned author cites Burbury CJ of the Supreme Court of Tasmania in Neave v Ryan [1958] Tas SR [58] at page 59, where his Honour stated - in that case it was about noise:

'Noise in public places may be an annoyance to citizens and may contravene city by-laws. But it does not constitute a disturbance of the peace in the legal sense. The public peace is not peace and quiet, it is public order.'

...

So, in a sense today, Mr - in a very real sense, Mr [Laurent] is inviting me to attach a new meaning to a familiar legal phrase to meet his issues that he has with the council. I find that as a matter of law that is impossible. In fact, his application must fall within the definition of 'frivolous and vexatious'.

As Mr Gillett has said briefly today and - if he has an issue with the council in this case the way to proceed is by way of a civil action under the civil law, not under the Restraining Orders Act. It's absolutely clear that the Restraining Orders Act never contemplated that, for instance, we could see a person come to the court and say to the court, 'Well, there's cracks in my walls', for instance, 'and I think it's the council's fault. I need a restraining order against them. I don't like the trucks going up and down my road. I want a restraining order against them.' It just does not have any rational basis in law or in commonsense [sic].

...

There's also some sort of reference to - and it was just an aside reference, to whether the employees of the council were intimidating or offensive. I'm not satisfied at all that this - that at no stage - I'm satisfied at no stage has Mr [Laurent] brought an application that simply is based on conversations he had with council workers, and so on.

Now, when it comes to words like 'offensive' the first - the behaviour would have to be:

Hurtful, harmful and injurious of or relating to offence or attack. Attacking, aggressive -

and so on. I'm not satisfied that there's any basis for a misconduct restraining order on that basis before the court today, either. The grounds for application , I note, in both of Mr [Laurent]'s applications, are summarised by him as 'breach of the peace'. Breach of the peace to both of them. And, so, it's simply an afterthought to be now saying, 'Oh, well, I didn't like the way the council workers spoke to me'.

There is - this matter, if I allowed it to continue, would be an abuse of the process of the court. It falls outside the jurisdiction of the Restraining Orders Act and it's frivolous and vexatious, and it will be dismissed as an abuse of process and struck out.

18 The appellant appealed the decision of Magistrate Lawrence to strike out the MRO applications. A directions hearing in relation to the appeal was held on 1 December 2014 before Davis DCJ. The respondents made oral submissions at the hearing that the appellant had no right of appeal to the District Court under s 64 of the Restraining Orders Act. Orders were made at the hearing that, inter alia, the respondents file and serve any application to strike out the appeal, together with submissions in support; the appellant file and serve any submissions in response; the respondents file and serve and submissions in reply; and that the hearing of the respondents' application to strike out the appeal be listed for 19 January 2015.

19 The hearing of the respondents' application to strike out the appeal was brought forward to 12 December 2014 and was heard by Birmingham DCJ.

20 Birmingham DCJ found that the appellant had no right to appeal.[4] In coming to that conclusion, Birmingham DCJ relied on s 64 of the Restraining Orders Act, which provides:

(1) A person aggrieved by the decision of a court -

(a) under section 23(1)(b) or 29(1)(b) to dismiss an application; or

(b) in relation to a final order,

may appeal against that decision in accordance with this section.

(2) 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 unless subsection (6a)(a) applies.

21 'Final order' is defined in s 3 of the Restraining Orders Act in the following terms:

final order means a restraining order -

(a) made at a final order hearing;

(b) that becomes a final order under section 32;

(ba) made under section 40(3);

(bb) made under section 41(1) at a mention hearing with the consent of the respondent;

(c) made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section; or

(d) that is a final order under section 63(4a) or 63A(3).

22 'Final order hearing' is defined in s 3 of the Restraining Orders Act in following terms:

final order hearing means a hearing fixed under section 33(1), 40(3), 41(4) or 43A(7)(b).

23 Birmingham DCJ added that, in any event, the magistrate's decision was 'plainly right',[5] but he said this without hearing the parties because he had already reached the view that there was no right of appeal.

24 In substance, his Honour struck out the appellant's appeal on the basis that there was no right to appeal to the District Court. He ordered the appellant to pay the respondents' costs in the sum of $400.

25 The appellant filed an appeal notice on 17 March 2015, stating that the statute which allowed the appeal was s 79(1)(A) of the Restraining Orders Act. The appellant presumably intended to refer to s 79(1)(a) of the District Court of Western Australia Act 1969 (WA).

26 The appellant's grounds of appeal, read in the context of the appellant's submissions, appear essentially to allege that Birmingham DCJ:

1. erred in awarding costs to the respondents as his claim was not frivolous or vexatious;
2. erred in law in not allowing the appellant to produce evidence in the appeal to support his claims;
3. erred in law in not allowing the appellant to put his case, in circumstances where the appellant did have a right to appeal;
4. erred in that his decision was against the evidence or weight of evidence, or was unreasonable; and
5. erred in that his decision was unsafe and unsatisfactory, because the appellant had a good claim that the respondents' conduct was in breach of the peace.

27 The appellant in his submissions in the appellant's case also alleged that the magistrate was biased, but that allegation formed no part of his grounds of appeal against the decision of Birmingham DCJ.

The appellant's affidavit filed pursuant to the court's orders of 24 August 2015

28 The appellant filed an affidavit on 7 September 2015 pursuant to the order that he file an affidavit containing any evidence the appellant wanted to adduce before Magistrate Lawrence in the application for a misconduct restraining order heard on 8 September 2014.

29 The appellant submits that his affidavit demonstrates that the respondents 'behaved in a manner that could reasonably be expected to have been, or in fact was, intimidating or offensive ... in breach of the peace'.[6]

1. I am the builder of the property 2 [A]dmiral [L]ink [W]andina (incomplete).
2. I measured the [V]erita [R]oad distance to property fence 2 [A]dmiral [L]ink [Wandina] to be about 75 metres.
3. In mid-year 2013 with a friend I was introduced to the respondents for the purpose to convey all concerns in the building of the [V]erita [R]oad. I was given documentation (Evidence reserved).
4. I have investigated the respondent[s'] claims in affidavits, in documents, and actions. It is my view, I am well justified to deal with their actions with a burden of a Misconduct Restraining Order to save the peace: such as, protect property; wrong at law actions; and my neighbourhood public safety.
5. I am not permitted to deal with the respondents['] wrong at law action to breach the peace (supported with facts in document) in an affidavit (Evidence reserved).
6. I was aware that the respondent[s'] refusal to seal the road to favour cost on towards their employee leading to have cause breach of the peace in their action: videos, photos and documents.
7. For documentation received I am aware of contractor not paid due to the respondent not having funds on hand leading over and beyond compaction time in the build of [V]erita [R]oad being unsealed.
8. Annexure 'GL1' (page 2) The [C]ity of [G]reater [G]eraldton - [V]erita [R]oad map - 8 May 2013 - distance 75m - Not '150m'.
9. Annexure 'GL2' (page[s] 3 - 4) dated 30 July 2013 I received documentation from respondent Neil Arbuthnot dated 14 August 2013 of caution of; 'These works will be occurring near and may have impact on your property at 2 [A]dmiral [L]ink [W]andina 6530', 'Heavy construction equipment used on site may cause ground vibration' and 'As your property is close to the project site ...'.
10. Annexure 'GL3' (page[s] 5 - 6) dated 14 August 2013 - Follow up letter to 'GL2'.
11. Annexure 'GL4' video 22 October 2013 reserved with respondent[s] at property. The respondent[s] [were] shown damage to property and trespass vibration.
12. Annexure 'GL5' Video and photograph other reserved.
13. Annexure 'GL6' (Page 7) The respondent[s'] letter dated 25 October 2013.
14. Annexure 'GL7' (Page 8) Appellant's letter received by respondent[s] 10 April 2014.
15. Annexure 'GL8' (Page[s] 9 - 10) Email 14 April 2014.
16. Annexure 'GL9' (Page 11) John Eller insurance claim 28 April 2014.
17. Annexure 'GL10' (Page 12) Customer feedback form 16 July 2014.
18. Annexure 'GL11' (Page[s] 13 - 16) Email dated 17 July 2014 - Abusive language and conduct unbecoming.
19. Annexure 'GL12' (Page 17) Email 21 July 2014 with investigator Mick Reilly.
20. Annexure 'GL13' (Page[s] 18 - 19) Respondent[s'] letter 6 August 2014.
21. Annexure 'GL14' (Page[s] 20 - 21) Email 5 October 2014.
22. Annexure 'GL15' 1- 7 (Page[s] 22 - 23) Photographs dates reserved.
23. Annexure 'GL16' (Page[s] 24 - 25) 4 September 2015 Jayne Shepherd-Laurent's affidavit.

31 The annexures include correspondence between the appellant and the respondents and the appellant and the lawyer for the City's public liability insurer. Annexure 'GL11' is an email chain in which the appellant contended that staff of the respondents had used 'abusive language' which was 'relat[ed] to heavy compaction', and the first respondent denied the allegations and contended that his staff, as well as other City staff, were 'doing their job in [a] professional manner'.

32 There are also a number of photographs in annexure 'GL15' of what appears to be the road works. There are photographs in annexure 'GL15' that appear to show a ceiling and a light fitting, but it is unclear what they are intended to evidence (perhaps cracks or damage). Annexure 'GL16' is a copy of an affidavit of Jayne Shepherd-Laurent sworn on 4 September 2014, in which she deposes that she has 'witnessed heavy vibration in late 2013 and during 2014 during the construction of Verita Road'; she was 'woken in the early hours ... due to the noise of the vibrations'; and that she has 'identified cracks in [the Admiral Link property] on an ongoing basis during the compaction of Verita Road'.

33 The appellant's affidavit indicates that he has 'reserved', ie withheld, some of his evidence, including a video relevant to his complaint. He was told by this court at the hearing on 24 August 2015, that his affidavit should cover all of the evidence that he would have adduced in support of his claim for a misconduct restraining order, including the video.[7]

The respondents' submissions pursuant to par 2 of the orders of 24 August 2015 and the appellant's response

34 As to par 2(a) of the orders, the respondents submit there is no evidence contained in the appellant's affidavit which indicates that the respondents:

(a) behaved in a manner that could reasonably be expected to have been, or in fact was, intimidating or offensive to the appellant;[8]

(b) have caused damage to property owned or in possession of the appellant;[9] or

(c) behaved in a manner that was, or was likely to lead to, a breach of the peace so as to behave in a manner as to produce alarm in the minds of ordinary citizens.[10]

35 On the question of breach of the peace, the respondents referred to Ferguson v Carnochan.[11]

36 The respondents submit that the appellant's affidavit fails to disclose any arguable claim under the misconduct restraining order provisions of the Restraining Orders Act.[12]

37 In relation to par 2(b) of the orders, the respondents submit that:

(a) the Magistrates Court had jurisdiction to hear an application for an MRO pursuant to s 7A(a) of the Restraining Orders Act, and s 9 of the Magistrates Court Act 2004 (WA);

(b) there was no express provision in the Restraining Orders Act to strike out an application for an MRO;

(c) the civil jurisdiction of the Magistrates Court is set out in s 6 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Civil Proceedings Act), and that provision does not include the jurisdiction to hear applications under the Restraining Orders Act;

(d) the Civil Proceedings Act had no application, and was accordingly not the source of any power to strike out the MROs; and

(e) the Magistrates Court nevertheless had an implied or an inherent power to strike out the MRO as part of its implied or inherent power to prevent an abuse of process.

38 In relation to par 2(c) of the orders, the respondents submit that as the Civil Proceedings Act has no application, there was no appeal from the Magistrates Court to the District Court pursuant to pt 7 of the Civil Proceedings Act. They also submit that there was no right of appeal under the Restraining Orders Act.

39 In the latter regard, the respondents' submissions were to the following effect. Section 64(1)(a) only provides for appeals in relation to the dismissal of an application of violence restraining orders, where the decision was made under s 23(1)(b) or s 29(1)(b). Section 23(1)(b) concerns dismissal of an application at a telephone hearing, and s 29(1)(b) concerns dismissal of an application at a hearing in the absence of a respondent. There was no right of appeal under s 64(1)(a) in this case. Nor was there any right under s 64(1)(b) of the Restraining Order Act, which is in relation to a 'final order'. A 'final order' is limited to restraining orders that have been 'made' as opposed to restraining order applications which have been dismissed. This is evident from the definition of a final order in s 3, and the provisions to which it refers, all of which concern a restraining order being 'made'.

40 In his responsive submissions dated 28 September 2015, the appellant's contentions included that:

(a) Birmingham DCJ's decision is infected by jurisdictional error and the appellant was not given an opportunity to present his case;[13]

(b) the magistrate's decision and orders were beyond the scope of the Restraining Orders Act, and the magistrate had no relevant powers under the Civil Proceedings Act to dismiss his claims without a full hearing on the merits;[14]

(c) the appellant's affidavit sworn 7 September 2015 disclosed an arguable basis for an MRO and, in any event, he was entitled to 'reserve evidence';[15] and

(d) there was a right of appeal to the District Court under s 64 of the Restraining Orders Act.[16]

41 The evidence in the appellant's affidavit of 7 September 2015 provides no arguable basis for an MRO against the respondents. It is unnecessary to construe the term 'breach of the peace' in s 34(a)(iii) for present purposes.[17] It is sufficient for present purposes to observe that on the state of the appellant's evidence, any complaints regarding damage to the Admiral Link property and associated loss would appropriately be canvassed in civil proceedings against the City, and there was no prospect that a court could have found that the grant of a misconduct restraining order was 'appropriate in the circumstances': s 34(b) of the Restraining Orders Act.

42 It was explained to the appellant by this court on 24 August 2015, that the purpose of order 2(a) was to enable this court to determine whether there had been any miscarriage of justice in the dismissal of his claims by the magistrate.[18] On the basis of the appellant's affidavit of 7 September 2015, it is evident that there was no miscarriage of justice.

43 Turning to the appellant's grounds of appeals, ground 1 has no reasonable prospect of success independently of the other grounds. If it was appropriate to dismiss the appeal to the District Court, it was open to the court to award costs against the appellant. Ground 4, as formulated, has no reasonable prospect of success as Birmingham DCJ's decision effectively rested upon a conclusion of law that there was no right of appeal. Grounds 2, 3 and 5 are arguably to the effect that Birmingham DCJ erred in striking out the appeal without hearing and determining it on its merits, and he did so on the erroneous basis that the appellant had no right to appeal.

44 If, as the respondents contend, there was no power under the Restraining Orders Act to dismiss an application for an MRO on the ground that it constituted an abuse of process, the magistrate's decision could not have been made under that Act. In that case, the power exercised by Magistrate Lawrence in dismissing the applications, and any appeal therefrom, would need to be found elsewhere.

45 Section 9 of the Magistrates Court Act provides that the court has the jurisdiction conferred on it by that Act and by other written laws. Section 10 of the Magistrates Court Act provides that the court's civil jurisdiction is set out in the Civil Proceedings Act.

46 Section 8 of the Civil Proceedings Act provides:

The Court's civil jurisdiction includes any jurisdiction conferred on the Court by a written law other than this Act, other than jurisdiction conferred on the Court as a court of summary jurisdiction.

47 Section 7A(a) of the Restraining Orders Act provides that a Magistrates Court may hear an application under s 38 for an MRO. Accordingly, it is at least arguable that by virtue of s 8 of the Civil Proceedings Act, the Magistrate Court's civil jurisdiction extends to include proceedings in relation to MRO applications.

48 There is an express power in the Civil Proceedings Act to strike out a 'case statement' on the grounds of abuse of process: s 17(1)(d) of the Civil Proceedings Act. A 'case statement' is defined in s 3 to mean, in effect, a 'statement of a party's claim, or of a party's defence', and 'claim' is defined to mean a claim made to the court by a party, whether a claimant, a defendant or another party. Whilst an application for an MRO might not be regarded as a 'case statement', it may be arguable that there is an implied power in the Civil Proceedings Act to deal with an abuse of process of the court in relation to other matters falling within the court's civil jurisdiction, including arguably MRO applications. See, for example, Grassby v The Queen.[19]

49 Section 40 of the Civil Proceedings Act provides for appeal rights in relation to civil proceedings:

1. Appeal from Magistrates Court to District Court

(1) A party to a case that is not a minor case may appeal to the District Court against -

(a) any order made by the Magistrates Court in the course of proceedings in the case; or

(b) the judgment of the Magistrates Court in the case.

50 'Case' is defined in s 3 of the Civil Proceedings Act as 'any proceedings in the Court involving or in connection with the Court's civil jurisdiction'.

51 If, for the reasons given earlier, MRO applications are within the Magistrate Court's civil jurisdiction, the appeal rights conferred by pt 7 of the Civil Proceedings Act would arguably apply to the magistrate's exercise of an implied power to strike out an MRO application for abuse of process.

52 For these reasons, insofar as grounds 2, 3 and 5 of the grounds of appeal allege in effect that Birmingham DCJ dismissed the appellant's appeal on the basis that the appellant had no right to appeal, it could not be concluded that the grounds have no reasonable prospect of succeeding. However, that does not mean that the appeal should proceed.

53 If, as may be arguable, s 40 of the Civil Proceedings Act permitted the appellant to appeal to the District Court, then in any appeal from the District Court to this court, this court may strike out any ground of appeal if, although it has a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out: s 43(4)(c) of the Civil Proceedings Act.

54 As indicated earlier, the appellant was given an opportunity to put on evidence relevant to the question of whether there had been any miscarriage of justice. Having considered the appellant's affidavit sworn 7 September 2015, it is evident that there has been no miscarriage of justice. The appeal should be struck out on the basis that no miscarriage of justice would occur if each ground was struck out.

[6] Appellant's submissions in response to respondents' submissions, par 15.

[9] Respondents' submissions, pars 7 - 8.

[10] Respondents' submissions, pars 9 - 11.

[11] Ferguson v Carnochan (1889) 2 White 278; (1889) 26 SLR 624.

[13] Appellant's responsive submissions, 28 September 2015, par 9.

[14] Appellant's responsive submissions, 28 September 2015, pars 12, 23, 40.

[15] Appellant's responsive submissions, 28 September 2015, pars 15 - 21, 35.

[16] Appellant's responsive submissions, 28 September 2015, par 39.

[17] The term 'breach of the peace' has been considered in other contexts, including New South Wales v Tyszyk [2008] NSWCA 107 [85] - [102] (Campbell JA); Nilsson v McDonald [2009] TASSC 66; (2009) 19 Tas R 173 [6] - [8] (Crawford CJ), [13] - [14] (Evans J), [27] - [42] (Blow J).

[19] Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, 16 - 17.