RE MAGISTRATE ROBERT YOUNG; EX?PARTE?J?C [2026] WASC 115 (9 April 2026)

The procedure to determine whether a review order should be made

1. As was the case in the Applicant's First Judicial Review Proceedings, although the applicant's application was expressed as being an application for judicial review, he subsequently confirmed that his application was for a review order pursuant to s 36 of the Magistrates Court Act.
2. As I explained in the Applicant's First Judicial Review Proceedings, s 36 of the Magistrates Court Act provides for an alternative statutory form of relief to the prerogative writs.
3. The procedure applicable to an application for a review order is contained in O 56A of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court).
4. Order 56A(2)(1)(a) requires that an application for a review order be made ex parte. The application must be for an order that requires the relevant court officer, and any person who will be affected by their act, order or direction in question, to satisfy the Supreme Court at a later hearing whether that act, order or direction should be done, made, or be set aside.
5. Order 56A provides for a two‑stage process. Order 56A(3) requires that an application for a review order must initially be listed before a judge in chambers. A judge may then, amongst other things, refuse the application, or make a review order.
6. If a judge makes a review order, O 56A provides for the service of the review order and a hearing of that order at which persons who wish to be heard to oppose the order may appear. At the first stage in the process, this court is empowered to make a review order requiring the decision-maker to show cause if the material before the court demonstrates that the case has reasonable prospects of success.[3]

When a review order will be made under s 36 of the Magistrates Court Act

1. Section 36(1) of the Magistrates Court Act relevantly provides that:

(1) If a person is or would be aggrieved by one or more of the following -

(a) the failure of a Court officer to do any act or make any order or direction -

(i) on the ground that the officer is under a duty to do the act or make the order or direction; or

(ii) on any ground that might have justified an order of mandamus;

(b) an act, order or direction that a Court officer proposes to do or make -

(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or

(ii) on any ground that might have justified an order of prohibition;

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.

1. In the Applicant's First Judicial Review Proceedings, I explained the circumstances in which a review order will be made as follows.
2. An application under s 36 of the Magistrates Court Act is concerned only with the legality of decisions, and not the merits of those decisions.[4]
3. A review order can only be made if the applicant establishes a case that an error of the type identified in s 36(1)(a), (b) or (c) of the Magistrates Court Act was made that has a reasonable prospect of success.[5]
4. To fall within s 36(1), the error must be either a jurisdictional error, or an error of law on the face of the record.[6]
5. The concept of jurisdictional error was described in the following terms by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[7]

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

1. It is more difficult to demonstrate a jurisdictional error on the part of an inferior court than in the case of an administrative decision‑maker.[8]
2. While the categories are not closed, the following five categories of jurisdictional error in respect of inferior courts and analogous bodies are well established:[9]

First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ( [...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case.

1. Another category of jurisdictional error is where procedural fairness has been denied.[10]
2. Errors of law not evident on the face of the record can only be addressed through normal appellate process.[11]
3. A demonstration that the magistrate made an error of law in his or her reasons is not, in itself and without more, a ground that might have justified certiorari. Certiorari is available, relevantly, for jurisdictional error, or for error of law on the face of the record.[12] In the case of an inferior court such as the Magistrates Court, subject to a contrary statutory provision, the reasons for decision are not part of the record unless there is an error of law on the face of the record.[13]
4. Even where the grounds for a review order have been established, the grant of a review order remains discretionary.[14] For example, in Blum v Boothman, Mitchell J (as his Honour then was) refused a review order on discretionary grounds because the proceedings were commenced after the order had expired and the grant of certiorari would lack utility.

1. The Judicial Review Application described the decision for which review was being sought in the following terms:

Reasons stated by Magistrate Young failed to engage with and take into consideration relevant and available evidence. It undermines and contradicts the dismissing of the application.

1. The Judicial Review Application seeks as relief the issue of a writ of certiorari, a declaration, and an order in the following terms:

that the Supreme Court exercise its discretion under Order 67A of the Rules of the Supreme Court 1971 (WA) to quash or correct the entirety of the Magistrate's factual findings relating to family violence and that a threat to kill was made. This relief is sought without disturbing the dismissal of the final restraining order itself.

(emphasis added)

1. The Judicial Review Application states the grounds of the application as follows:
   1. Mischaracterisation of sworn evidence and failure to apply Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The Finding of Magistrate Young that a threat to murder, albeit said in jest, was made. The applicant [for the FVRO] clearly forgot she had made this claim. The applicant [for the FVRO] then went on to state that she did not mention this claim in 'anything else' and that she did not mention it in Family Court, yet they were repeated in various sworn Family Court affidavits and other documents.
   2. Failure to reconcile jurisdictional findings and evidentiary weight, contrary to L v P [2022] WASCA 40. Magistrate Young made a determinative finding that family violence occurred, despite the earlier finding by the Family Court of Western Australia that there were merely reasonable grounds to believe such acts may have occurred. The Magistrate did not identify any new evidence or legal basis to depart from the superior court's more cautious assessment, rendering the reasoning internally inconsistent and legally flawed.
   3. Failure to consider material evidence and breach of procedural assurance. The Magistrate gave procedural assurances that he would consider all materials, yet made no reference to a number of uploaded documents and footage played in court at the request of the [a]pplicant [for the FVRO]'s lawyer Glen Cridland.
   4. Procedural overreach and prejudicial commentary inconsistent with L v P. Remarks such as 'puerile,' 'childish,' and 'bloody‑minded' are not grounded in evidence and risk contaminating the neutrality of the decision.
   5. Misapplication of the statutory test under s.10D of the Restraining Orders Act 1997 (WA). The Magistrate relied on subjective discomfort and inferred emotional impact rather than objective evidence of fear, coercion, or control.
   6. Failure to engage with exculpatory evidence and institutional implications. The audio recording disproved an aggression allegation used to justify a Prohibition Order. It was played in court but omitted from the Magistrate's findings.
2. The Judicial Review Application was supported by an affidavit sworn by the applicant on 3 September 2025 which addressed the various matters referred to in the Judicial Review Application.
3. In relation to the first ground, the applicant said:

2.1 The applicant [for the FVRO] alleged in her 2020 Family Court Case Information Affidavit and her sworn Form 4 Notice of Risk that I threatened to murder her. This allegation was used to support parenting restrictions and procedural exemptions.

2.2 During the 2025 FVRO hearing, the applicant [for the FVRO] initially failed to recall making the allegation however later recanted when confronted with her affidavit. She claimed the comment was hearsay and not serious.

2.3 The Magistrate dismissed the allegation as 'light‑hearted,' without reconciling its prior legal use or testing its credibility. This minimisation of a serious allegation-one that had legal consequences reflects procedural unfairness and selective engagement with evidence.

2.4 The Family Court treated the allegation seriously enough to justify supervised contact, and the comment was taken seriously enough to warrant an Interim Order in 2020. The Magistrate's failure to reconcile this contradiction supports a ground for review under Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and L v P [2022] WASCA 40.

1. In relation to the second ground, the applicant said:

3.1 The Magistrate found that I committed family violence during the marriage, based on isolated incidents such as a crude remark and minor property damage.

3.2 The Family Court of Western Australia, which had access to the same evidence, made no such finding. It stated only that 'there are reasonable grounds to believe' one or both parties may have engaged in acts meeting the statutory definition. This is not a determinative finding.

3.3 The Magistrate failed to reconcile this discrepancy, despite citing L v P [2022] WASCA 40. This inconsistency supports a ground for review based on misapplication of law and procedural unfairness.

1. In relation to the third ground, the applicant said:

4.1 I obtained leave from the Family Court to adduce three documents: [the applicant for the FVRO]'s Case Information Affidavit, Form 4, and transcript extract. These were uploaded to the eCourts Portal and confirmed as 'placed on file for the attention of the presiding Magistrate' via an email I received from the Magistrates Court dated 24th July 2025 at 15:01.

4.2 The Magistrate made no reference to these documents in his reasons, nor did he exercise discretion to admit or exclude them. This omission undermines the transparency of the reasoning process and supports a ground for review under Order 67A.

4.3 The Magistrate also failed to engage with contemporaneous emails and text messages that contextualised the incidents as isolated and non‑patterned. These exculpatory materials were not before the Family Court and should have been weighed accordingly.

1. In relation to the fourth ground, the applicant said:

5.1 The Magistrate relied on subjective discomfort and inferred emotional impact rather than applying the objective test under s.5A and s.1 OD of the Restraining Orders Act 1997 (WA).

5.2 He described my conduct as 'sporadic,' 'not repeated,' and 'not likely to recur,' yet still made a definitive finding of family violence. This contradicts the requirement for coercion, control, or fear.

5.3 The Magistrate did however make findings-that I have complied with Family Court orders, avoided contact, and engaged in civil communication.

1. In relation to the fifth ground, the applicant said:

6.1 The Magistrate inserted personal commentary describing me as 'puerile,' 'childish,' and 'intransigent.' These remarks are irrelevant to the statutory test and risk contaminating the neutrality of the decision.

6.2 He speculated about my motives in litigation and implied that I should have accepted a restriction 'to avoid conflict,' regardless of legal justification. This framing undermines procedural fairness and the right to contest allegations without prejudice.

6.3 The Magistrate's commentary reflects a pattern of prejudicial reasoning, as cautioned in L v P [2022] WASCA 40 and Briginshaw.

1. On 3 September 2025, the applicant filed a document described as a 'supplementary originating process'. This document identified the grounds upon which review was being sought as follows:
   1. The written decision/reasons of Magistrate Robert Young undermine the ultimate decision to cancel an interim order based on a number of issues detailed in my form 67A and supporting affidavit.
   2. Magistrate Young failed to engage with probative rebuttal evidence.
   3. Magistrate Young Failed to reconcile contradictions and inconsistencies stated by the applicant [for the FVRO] in the matter.
   4. The Magistrate misapplied the statutory definition of family violence under the Restraining Orders Act 1997 (WA) by relying on isolated, non-patterned incidents without proper contextual analysis.
   5. The Magistrate made findings inconsistent with the Family Court of Western Australia, which did not make a definitive finding of family violence.
   6. The Magistrate failed to reconcile contradictory testimony regarding the threat‑to‑kill allegation, which was used in Family Court proceedings but later denied and minimised in the FVRO hearing.
   7. The Magistrate did not consider the tactical use of allegations that were deployed to achieve protective orders in one jurisdiction and then downplayed in another.
   8. The Magistrate failed to place adequate weight to reciprocal conduct, including the [applicant for the FVRO's] attendance at my home despite documented requests not to do so.
   9. The Magistrate failed to resolve the evidentiary challenge raised by the applicant [for the FVRO]'s lawyer regarding the legality of the audio recording and did not reference its content in his decision despite it being played in court and my requests to do so.
   10. The Magistrate gave disproportionate weight to my litigation conduct and demeanour without taking into consideration my unrepresented status.
   11. The Magistrate acknowledged the Harman principle but failed to resolve whether Family Court material was properly introduced, raising concerns about reliance on inadmissible evidence.
   12. The Magistrate failed to consider relevant financial context, including uncertainty around employment and child support, and selectively attributed distress without balancing both parties' conduct.
2. On 20 October 2025, the applicant filed what he described as 'draft orders' that sought the following:
   1. That the findings made by Magistrate Young in his reasons for decision dated 5th August 2025 in... be quashed, insofar as they include:
      • A finding that I made a threat to Murder....
      • A finding that acts of family and domestic violence occurred.
   2. That the Court declare that the above findings were made without evidentiary basis, were speculative, and/or legally unreasonable.
   3. That the dismissal of the restraining order application by Magistrate Young remain undisturbed.
   4. That the reasoning adopted by Magistrate Young in refusing to hear the Applicant's costs submissions on 20 October 2025 be declared procedurally unfair.
   5. Such further or other declaratory relief as the Court sees fit.

1. At the same time, the applicant filed some short submissions. Those submissions again confirmed that he did not wish to disturb Magistrate Young's decision. He said that he wished to pursue judicial review of the reasoning process which he claimed was 'legally unreasonable and procedurally unfair'.
2. The submissions asserted that the reasoning of Magistrate Young was affected by legal error and procedural unfairness including:

(a) a speculative finding that the applicant made a threat to kill the applicant for the FVRO, despite acknowledging it was said in a 'jovial' context and without evidentiary foundation;

(b) a finding that family and domestic violence occurred, despite the Family Court of Western Australia not making any such finding and Magistrate Young being in possession of exculpatory evidence that the Family Court did not have;

(c) a failure to engage with key exculpatory evidence, including the Simpendorfer audio recording and rebuttal material; and

(d) an adverse characterisation of the applicant as an 'enthusiastic litigant,' unsupported by evidence and irrelevant to the statutory test.

1. It was asserted that these 'findings' were not necessary to the dismissal and remain on the public record, causing reputational harm and undermining the integrity of the outcome.
2. Reference was also made to a cost application before Magistrate Young made on 20 October 2025.
3. On 25 November 2025, the applicant filed further submissions. These submissions repeated similar assertions, referred to a large number of cases, and asserted that they stood for various propositions without properly explaining why the cases established those propositions or how those propositions advanced the applicant's case. The submissions also included pages of the transcript and a copy of a Family Court decision.
4. On 15 January 2026, the applicant filed a further shorter set of submissions. These submissions repeated similar matters to the previous submissions, and again asserted that various cases referred to stood for various propositions without properly explaining why the cases established those propositions or how those propositions advanced the applicant's case.

1. I am not satisfied that the applicant has established a case with any reasonable prospect of success.
2. I do not consider that Magistrate Young's 'reasoning' may be reviewed for jurisdictional error, without disturbing his Honour's ultimate decision, as the applicant seeks.
3. Section 36(1) of the Magistrates Court Act does not provide for the judicial review of reasons for a decision, independently and separately from, a review of the decision itself.
4. Sections 36(1)(b) and (c) of the Magistrates Court Act provide for the review of an 'act, order or direction', including on the basis that the officer was acting without jurisdiction or power. In their terms, the sections do not make provision for a review of the reasons why an officer took an act, or made an order or direction, independently and separately from, a review of the act, order or direction itself.
5. Further, as I explained in the Applicant's First Judicial Review Proceedings,[15] where an inferior court has made a jurisdictional error, any decision made has no legal force. Therefore, if the applicant were to succeed in establishing jurisdictional error on the part of the Magistrate, the consequence would be that his Honour's ultimate decision to dismiss the FVRO Application would have no legal force.
6. The applicant's submissions referred to various cases which he claimed demonstrated that reasons may be reviewed without disturbing the ultimate decision. The applicant's submissions failed to meaningfully engage with what was decided in those cases, or how they established the proposition claimed. It did not appear to me that any of the cases referred to addressed the issues that I have raised. If the cases were relevant at all, their relevance appeared to be peripheral, at best.
7. The applicant has repeatedly made it plain that he does not seek a judicial review of the actual decision made by the Magistrate: to dismiss the FVRO Application. Given that the applicant succeeded before the Magistrate, that is hardly surprising.
8. I do not consider that the Magistrate's reasons can be reviewed without a challenge to his decision, as the applicant seeks to do. I do not consider that the Judicial Review Application has any reasonable prospect of success.
9. Finally, I note that order 4 of the 'draft orders' that the applicant filed on 20 October 2025 sought relief concerning an application for costs made before Magistrate Young. Insofar as those orders sought some relief in relation to that costs application, such relief seems to me to be beyond the scope of the present Judicial Review Application.

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

[1] JC v TH [2025] WASC 91.

[2] Ex parte J C [2025] WASC 99 (Applicant's First Judicial Review Proceedings).

[3] Rayney v AW [2009] WASCA 203 [25] - [34] (Rayney v AW); Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] ‑ [54] (Darge).

[4] Re Magistrate Owen-Conway; Ex parte Bajaj [2024] WASC 333 [31(c)].

[6] Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380 [7].

[7] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. Cited in Darge [50].

[8] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 ‑ 180 (Craig v South Australia); Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [67] ‑ [68] (Kirk v Industrial Court (NSW)); Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 [9] ‑ [12], [118]; Darge [52].

[9] Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [181]; Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [16] (Re State Administrative Tribunal); Darge [53].

[10] Kirk v Industrial Court (NSW) [60]; Darge [54].

[11] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357 [45] (Re Magistrate D Temby); Abbott v Magistrate Malley [2012] WASC 420 [13] (EM Heenan J); Stewart v City of Belmont [2013] WASC 366 [31] (Martin CJ).

[12] Craig v The State South Australia, 175 ‑ 176; Kirk v Industrial Court (NSW) [56] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ); Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [26]; Re Magistrate D Temby [51].

[13] Craig v The State of South Australia, 182 ‑ 183; Re State Administrative Tribunal [22] (the Court); Seiffert v Prisoners Review Board [2011] WASCA 148 [181] ‑ [183] (Martin CJ); Re Magistrate D Temby [51].

[14] Rayney v AW [31]; Saldanha v Fujistu Australia Ltd [2011] WASC 360 [116]; Blum v Boothman [2014] WASC 452 [18] ‑ [19].

[15] Applicant's First Judicial Review Proceedings [66] ‑ [77].