MR LIETZAU (A PSEUDONYM) -v- BERRY [2025] WASCA 146 (7 October 2025)

1. The appeal is against an order made by the primary judge on 26 February 2025, dismissing the appellant's application for judicial review of two decisions:
   1. A decision of the first respondent, a judge of the Family Court of Western Australia, dismissing the appellant's application for an injunction restraining the third respondent from pursuing an application for a family violence restraining order in the Magistrates Court of Western Australia.
   2. A later decision made by the second respondent, a magistrate of the Magistrates Court of Western Australia, refusing an application for a stay of the third respondent's application for a family violence restraining order.
2. The primary judge published written reasons for dismissing the appellant's judicial review application to the General Division of this court.[1] The relevant background and the appellant's grounds for seeking judicial review are summarised in those written reasons.
3. In essence, the appellant and the third respondent were divorced in 2018 and were parties to parenting proceedings in the Family Court relating to their three children. The parenting proceedings were tried in February 2023 and the decision was reserved. On 29 May 2023, while judgment in the parenting proceedings was reserved, the third respondent obtained an interim violence restraining order from the Magistrates Court. A copy of the interim violence restraining order was filed in the Family Court on 20 June 2023. On 27 June 2023, the appellant applied to the Family Court for an anti‑suit injunction restraining the third respondent from proceeding with her application for a family violence restraining order in the Magistrates Court and compelling her to seek an order from the Magistrates Court vacating the interim order. That application was dismissed by the first respondent on 28 September 2023, with written reasons published on 10 November 2023. On 27 November 2023, the appellant applied to the Magistrates Court for an order staying the third respondent's application for a family violence restraining order. That application was refused by the second respondent on 12 December 2023.
4. The primary judge found that none of the grounds for judicial review were established. Of relevance to the security for costs application in this appeal, ground 5 in the primary proceedings contended:[2]

Further or alternatively, the conduct of each of the [first and second respondents], and that of each of the [fourth, sixth and seventh respondents] towards the [appellant] in connection with his unsuccessful attempts to obtain protection from the vexatious and oppressive claim pursued by the [third respondent] against him in abuse of process of the Magistrates Court is such that each of them should be ordered to show cause to this Court as to why he or she should not be removed from this Court's roll of practitioners, suspended from practice or otherwise disciplined by this Court in respect of his or her conduct towards the [appellant], including on the grounds that that conduct was contrary to the paramount interests of the [appellant's] children that he not be exposed to such a claim.

The fourth respondent was the Independent Children's Lawyer in the Family Court proceedings, and the seventh respondent was counsel briefed to appear for the Independent Children's Lawyer in the Family Court proceedings.

1. The primary judge made the following observations about ground 5 for seeking judicial review:[3]

There is no merit in this ground. No error was made by the [first or second respondents] and there is no justification whatsoever for the applicant seeking any form of relief of the nature set out in the fifth ground against either [the first or second respondents] or against the [fourth respondent, the sixth respondent or the seventh respondent]. The application for relief against them is vexatious and scandalous. It falls well outside any relief that could conceivably be given on judicial review of the decision made by the first and second respondents. The application should never have been made.

The [appellant] is a legal practitioner. In both his affidavit evidence and in his submissions he refers to his experience as a litigation lawyer and advocate. He ought to have known that it was quite wrong to seek the relief sought in ground 5. My impression is the [appellant] is so suffused with emotion generated by the parenting proceedings and issues relating to the care of his children that he has lost all professional objectivity. This is cold comfort to the other parties who have had to endure unjustified attacks on their professional reputations and, in the case of the [fourth respondent, sixth respondent and seventh respondent] have been required to instruct counsel to protect those reputations.

1. After referring to the position of the first respondent and second respondent,[4] the primary judge said:[5]

As to the position of the [fourth respondent, sixth respondent and seventh respondent]:

(a) While the court has power to order the removal of the name of a person from the Supreme Court roll on its own motion, it is not the usual practice to do so. Matters of professional discipline are dealt with by the Legal Practice Board in accordance with the provisions of chapter 5 of the Legal Profession Uniform Law (WA).

(b) Perhaps of much greater significance for the [fourth respondent, the sixth respondent and the seventh respondent], there was simply no basis for the criticisms of their professional conduct made by the [appellant].

1. The primary judge ordered that the appellant's judicial review application be dismissed as against all respondents. The primary judge ordered the appellant to pay the fourth respondent's and seventh respondent's costs of the primary proceedings fixed in the sum of $25,000.

1. On 18 March 2025, the appellant commenced the appeal to this court against the primary judge's order dismissing his judicial review application.
2. Pursuant to the Rules, the appellant was required to file his appellant's case by 22 April 2025. The appellant did not file his appellant's case by this time or by the extended time provided for in an order made on 24 April 2025. The orders of 13 June 2025 required the appellant to file an appellant's case by 4 July 2025 and provided for the appeal to be dismissed if that was not done.
3. On 14 April 2025, the fourth respondent applied for security for the fourth respondent's and the seventh respondent's costs of the appeal, fixed in the sum of $15,000. This application was granted on 13 June 2025.
4. In granting the application for security for costs, we applied the principles summarised by Murphy JA in George 218 Pty Ltd v Bank of Queensland Ltd.[6] We gave the following reasons for granting the fourth respondent's and seventh respondent's application for security for costs:[7]

The information as to the appellant's financial status is limited. Title searches undertaken by the fourth respondent indicate that the appellant does not hold a registered interest in any property in Western Australia. The primary judge ordered the appellant to pay the fourth and seventh respondent's costs of the primary proceedings fixed in the sum of $25,000. It does not appear that this sum has been paid.

The appellant has not deposed to his existing assets and liabilities other than by an affidavit adopting a letter to the Court of Appeal Registrar in which he describes himself as an indigent human being. We noted that on 23 April 2025 the appellant wrote to the Court of Appeal Registrar requesting the vacation of an earlier hearing date, which he said conflicted with his ['work for the dole'] arrangements. This correspondence by the appellant to the court indicated that he is currently unemployed.

The interests of the fourth and seventh respondents in the appeal arise out of the appellant's contention that they should be ordered to show cause why they should not be removed from this court's role of practitioners, suspended from practice or otherwise disciplined by this court. Draft grounds of appeal lodged by the appellant and the document which he lodged yesterday indicate that the appellant is appealing against the dismissal of his judicial review application to the extent that it sought that relief.

While this court does not have the benefit of the final version of the appellant's case setting out his final grounds of appeal and submissions, it is at this stage difficult to see how the primary judge's conclusion to the effect that the claim for relief against the fourth and seventh respondents was misconceived could be successfully impugned. While the absence of evidence of the appellant's financial position makes this a marginal case, we are prepared to draw the inference, in the absence of any contrary evidence by the appellant, that the respondents are likely to be unable to enforce a costs order against the appellant if the appeal should fail.

There is no evidence that this is the result of any conduct of the respondents. Given the apparent lack of merit in the appeal, so far as it seeks relief against the fourth and seventh respondents, it is in the interests of justice to require the appellant to provide security for the fourth and seventh respondents' costs of the appeal. The amount sought of $15,000 for both respondents appears reasonable to us.

We're not persuaded at this stage that we should make a springing order in relation to the security for costs order.

1. On 1 July 2025, the appellant filed his appellant's case in the appeal. Appeal ground 9 contends that:

The Primary Judge erred in rejecting the fifth ground of the Appellant's application in the Supreme Court proceedings: specifically, he erred in fact and law by proceeding on the basis that no error had been made by the First and Second Respondents and that there was no justification for seeking any form of relief of the nature sought against the Fourth, Sixth and Seventh Respondent; and he erred in law in asserting that the application made by that ground was vexatious and scandalous.

1. The particulars to appeal ground 9, so far as they concern the fourth respondent and seventh respondent, are that the primary judge should have held that:
   1. the Fourth and Seventh Respondents engaged in conduct that falls well short of the standard expected by the Supreme Court of its practitioners:
      1. in opposing the Appellant's application for an anti-suit injunction in the Family Court proceedings when they should have refrained from opposing that application, at least on the basis that the final relief that they were seeking from the Family Court was inconsistent with the interim order made, and the final order the Third Respondent is seeking, in the Magistrates Court proceedings; and
      2. in opposing the Appellant's claim in the Supreme Court proceedings when they should have refrained from opposing that claim, at least on the basis that the final order made by the Family Court is inconsistent with the interim order made, and the final order the Third Respondent is seeking, in the Magistrates Court proceedings.
   2. where a practitioner has engaged in such conduct in proceedings in either the Supreme Court or a Western Australian court of limited jurisdiction that is the subject of proceedings in the Supreme Court invoking the Supreme Court's supervisory jurisdiction, any disciplinary action against the practitioner should be carried out by the Supreme Court, and not simply referred to some other disciplinary body.
   3. further, in the present Supreme Court proceedings there is uncontested evidence that an officer of the Legal Profession Complaints Committee/Legal Practice Board improperly incited the Third Respondent to commence and prosecute the Magistrates Court proceedings.

1. The appellant's application in an appeal filed on 18 September 2025 is supported by an affidavit sworn by the appellant on that day. Apart from attaching certain court orders, the affidavit deposes:

I confirm that I have not provided security for costs because I am indigent and therefore unable to provide security for costs. I remain unable for that reason to provide security for costs.

1. In written submissions filed on 17 September 2025, the appellant relies on the fact that he has now filed an appellant's case as constituting a material change of circumstances justifying this court revisiting the interlocutory order requiring the payment of security for costs. He contends that 'the prima facie merits of the appeal as against the [fourth respondent and seventh respondent] are now very strong indeed'.[8]
2. The appellant's submissions are based on the fact that, on 23 January 2024, the Family Court made parenting orders which authorised personal communication between the appellant and third respondent and invalidated the interim violence restraining order of 29 May 2023 to the extent of inconsistency.[9] The appellant contends that the third respondent was engaged in 'vexatious and oppressive conduct' towards the appellant by obtaining an interim violence restraining order in terms that were inconsistent with the parenting orders then being sought. The appellant then argues that:[10]

The [fourth respondent's and seventh respondent's] persistent resistance, in both the Family Court and the Supreme Court, to the Appellant's efforts to have the Magistrates Court proceedings shut down as vexatious, oppressive and therefore an abuse of process has thus itself been vexatious, oppressive and therefore an abuse of process. It follows that there is a very strong case for the Court of Appeal to make 'show cause' disciplinary orders against the [fourth respondent and seventh respondent]. That is the substantive relief the Appellant is seeking against them in the appeal. (original emphasis)

1. The appellant also, in effect, contends that the fourth respondent and seventh respondent acted improperly by resisting a submission based on the appellant's interpretation of certain High Court authority.[11]
2. This ground of appeal is entirely without merit. It provides no reason to doubt the correctness of the primary judge's decision not to accept the appellant's invitation to convert an application for judicial review into disciplinary proceedings against the fourth respondent and seventh respondent for advancing a position before the Magistrates Court and the Family Court with which the appellant strongly disagreed. Having considered the appellant's case, we are reinforced in our earlier provisional view as to the correctness of the primary judge's conclusion that the appellant's claim for relief against the fourth respondent and seventh respondent was misconceived.
3. There is no material change in circumstances which would justify this court revisiting its interlocutory orders for the payment of security for the fourth respondent's and seventh respondent's costs. The appeal against the refusal of the primary judge to grant relief against the fourth respondent and seventh respondent still appears to lack merit. There is no further evidence as to the appellant's financial position, beyond the bare assertion that he is 'indigent'. It remains in the interests of justice for the appellant to be required to pay $15,000 into court as security for the fourth respondent's and seventh respondent's costs of the appeal. The appellant's application in an appeal filed on 18 September 2025 should therefore be dismissed.

The fourth and seventh respondents' application in an appeal

1. Rule 43(2)(g)(ii) read with r 5A(2) of the Rules authorises this court to dismiss an appeal if the appellant has not obeyed an order made under the Rules. The order for the appellant to provide security for the fourth respondent's and seventh respondent's costs of the appeal was an interim order[12] made by the court under r 43(2)(h) of the Rules. The appellant has not obeyed that interim order. It appears from his affidavit sworn on 18 September 2025 that he is unlikely to do so in the foreseeable future.
2. It is not in the interests of justice for the appellant's appeal to be stayed indefinitely. In the circumstances, we are satisfied that it is in the interests of justice to dismiss the appeal so far as it relates to the fourth respondent and the seventh respondent by reason of the appellant's failure to obey the security for costs order.
3. The appellant resists an order dismissing the appeal partly on the basis of his application to discharge the security for costs order. For reasons explained above, we do not discharge the order. The appellant also contends that there is no statutory power for this court to dismiss the appeal for failure to comply with the security for costs order. He submits that the only basis on which the appeal might be dismissed is on the basis of want of prosecution, and that there is no proper foundation for dismissing the appeal on that basis. These submissions overlook the provisions of the Rules noted above, which authorise the court to dismiss an appeal for failure to obey an order made under the Rules. The appellant also suggests that the fact that the stay has only been operative since 13 June 2025 should weigh against dismissing the appeal. However, there appears to be no realistic prospect that the appellant will comply with the security for costs order in the foreseeable future. There is no point in deferring the inevitable.

1. For the following reasons, we make the following orders:
   1. The appellant's application in an appeal filed on 18 September 2025 is dismissed.
   2. The appeal is dismissed so far as it relates to the refusal of the primary judge to make orders against the fourth respondent and the seventh respondent.
   3. The appellant is to pay the fourth respondent's and seventh respondent's costs of the appeal, including any reserved costs, to be assessed if not agreed.

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

[1] Mr Lietzau v Berry [2025] WASC 56 (primary decision).

[6] George 218 Pty Ltd v Bank of Queensland Ltd [2016] WASCA 56 [41] - [48]: see appeal ts 13.

[8] Appellant's written submissions filed 17 September 2025, par 27.

[9] See s 68Q of the Family Law Act 1975 (Cth).

[10] Appellant's written submissions filed 17 September 2025, par 31.

[11] Appellant's written submissions filed 17 September 2025, par 33.

[12] See par (f) of the definition of 'interim order' in r 3(1) of the Rules.