SANCHEZ -v- LEIGH [2025] WASCA 172 (21 November 2025)

And relying on that section, what I'm going to do is I'm going to grant the application to cancel the order, and I'm going to cancel the interim violence restraining order, because if it were to remain in place until next year, it brings about a fair amount of unjustness in respect of [Mr Sanchez].

So that's the order I'm making. The application to cancel the interim violence restraining order is granted.

1. On 12 August 2024, Ms Leigh commenced an appeal to the District Court against the orders made by the Magistrates Court on 22 July 2024. The grounds of appeal contended that Ms Leigh was denied procedural fairness, that the orders were manifestly unjust, that the magistrate took irrelevant extraneous material into account and that the magistrate 'unfairly privileged the fully represented' Mr Sanchez over Ms Leigh who was self-represented.
2. The primary judge heard the appeal on 24 April 2025. As has been the case throughout the proceedings, Ms Leigh was self‑represented and Mr Sanchez was represented by solicitors and counsel. At the conclusion of the hearing, the primary judge reserved her decision and gave leave to Mr Sanchez to file and serve supplementary submissions.
3. On 5 May 2025, the primary judge's associate sent the parties an email in the following substantive terms:

Upon further consideration of the relevant legislation, Her Honour points to the following:

1. On 13 July 2023, at a FOH [ie a 'final orders hearing'] of [Ms Leigh's] Misconduct Restraining Order (MRO) application, the Magistrate instead granted an interim Violence Restraining Order (IVRO);
2. Section 43(1) and (1a) of Restraining Orders Act 1997 permits a court to make a final VRO only in those circumstances;
3. The granting of a IVRO by the magistrate appears to amount to an error of law; and
4. If so, the remedy should be to remit [Ms Leigh's] application for an MRO for a further FOH in the [Magistrates] Court.

Her Honour seeks further brief written submissions from each party in light of the above, should they wish to add anything further. [Ms Leigh] is to file and serve any submissions on this issue within 14 days of today, [and Mr Sanchez] within 7 days thereafter.

1. Ms Leigh filed written submissions on 19 May 2025 which, apart from pointing out that the hearing on 13 July 2023 was a mention hearing rather than a final orders hearing, contended that the appeal should be allowed on the basis indicated in the associate's email.
2. On 22 May 2025, counsel for Mr Sanchez filed submissions which contended that:
   1. The sending of the associate's email gave rise to a reasonable apprehension of bias which should lead the primary judge to recuse herself.
   2. Ms Leigh had not appealed against the orders made on 13 July 2023 and was out of time to do so.
   3. There was no right of appeal against the making of the IVRO.
   4. The magistrate had power to make the IVRO in any event.
   5. The IVRO was made at Ms Leigh's initiative over Mr Sanchez's opposition, Ms Leigh received the benefit of the IVRO to Mr Sanchez's prejudice, the matter proceeded for over one year in the Magistrates Court and it was nonsensical to suggest that an error that both parties accepted could now be the basis of a ground of appeal.
3. At Mr Sanchez's request, a further oral hearing was conducted on 30 July 2025 to consider the matters raised by the associate's email and Mr Sanchez's recusal submission. At that hearing, Ms Leigh said that she was content with her written submissions and would just seek to reply to anything raised by Mr Sanchez's counsel.[2] The primary judge pointed out that the court could only deal with the grounds of appeal which did not include the point identified by the associate's email. Ms Leigh then made an oral application to amend her grounds of appeal 'on the basis that the interim violence restraining order was not legally permissible'.[3] Mr Sanchez opposed the application for leave to amend the grounds of appeal. After hearing further oral submissions from both parties, the primary judge again reserved her decision.
4. On 29 August 2025, the primary judge made the following orders in the District Court appeal (primary orders):
   1. [Ms Leigh's] application to amend the ground of appeal is granted.
   2. The appeal is allowed.
   3. [Ms Leigh's] application for a misconduct restraining order dated 14 April 2023 is remitted to the Magistrates Court at Perth for a final order hearing to be fixed pursuant to s 41(4) of the [Act].
5. The primary judge published written reasons for making those orders.[4]
6. The primary orders of 29 August 2025 are the subject matter of the appeal notice lodged by Mr Sanchez in this court.

1. After summarising the relevant background, the primary judge identified 'two decisions relevant to this appeal':[5]
   1. The magistrate decided on 13 July 2023, at a mention hearing for Ms Leigh's MRO application, to instead grant an IVRO in favour of Ms Leigh. The primary judge characterised this first decision as changing the 'trajectory' of Ms Leigh's initial application for a final MRO. In particular:[6]

it altered the timeframe and process for the application thereafter, as well as the test to be applied by the magistrate pursuant to the Act in considering whether to grant or refuse a final order.

1. The magistrate decided on 22 July 2024 to cancel the IVRO without permitting Ms Leigh's application to proceed to a final orders hearing.
2. The primary judge then expressed various conclusions about the proceedings in the Magistrates Court, including:[7]
   1. Ms Leigh was self-represented throughout and experienced additional practical issues in respect of the proceedings due to the nature of her health issues, some of which the magistrate was willing to accommodate, and the additional time involved in responding to Mr Sanchez's applications in a Queensland defamation action which directly coincided with the proceedings in Western Australia under the Act.
   2. The programming orders were not expressed by the magistrate to be springing orders and the potential consequences of either party not complying with the orders were never explained to the parties.
   3. Mr Sanchez did not comply with the programming orders to some extent.
   4. Mr Sanchez did not express any concern to the court or to Ms Leigh about Ms Leigh not having complied with the programming orders before 17 July 2024, even though Ms Leigh wrote to Mr Sanchez's solicitors in late June and early July to discuss the issue.
   5. Ms Leigh was making genuine efforts to progress the final orders hearing by communicating with Mr Sanchez's solicitor approximately one month prior to the final orders hearing and on four occasions over the following fortnight.
   6. Mr Sanchez's solicitor replied on only one occasion on 3 July 2024 and did not then communicate any concern about non‑compliance or an inability to prepare the matter for a final orders hearing.
   7. Mr Sanchez knew that he could likely not comply with the programming orders, in particular the order that he attend in person at the final orders hearing, and he had been aware of this since April when he obtained the medical certificate to that effect. Mr Sanchez did not bring this to the attention of the court or Ms Leigh until he made the application to cancel or adjourn the final orders hearing on 17 July 2024.
   8. The magistrate focused on the application to adjourn the final orders hearing with costs and did not 'fully consider' Mr Sanchez's alternative application in light of the other factors referred to above.
   9. Mr Sanchez's counsel made various material misstatements to the magistrate.
   10. The magistrate did not consider a further alternative; to continue with the final orders hearing listed on 29 July 2024 on the basis of the evidence actually filed.
3. The primary judge in effect rejected Mr Sanchez's recusal application, holding that the issue identified in the associate's email 'was not, nor can it reasonably have been perceived to be, pre‑determined' in the circumstances.[8] The primary judge granted Ms Leigh's amendment application and 'any extension of time to the extent it is necessary'. The primary judge said that Ms Leigh's grounds were amended to include ground 1a:[9]

[T]he magistrate erred in law in granting an IVRO in favour of [Ms Leigh] on 13 July 2023 (first decision).

1. The primary judge held that the magistrate erred in law in granting an IVRO at a mention hearing for an application for an MRO when there was no power to do so.[10]
2. The primary judge then turned to consider 'whether this error can be the subject of an appeal pursuant to s 64 of the Act'. Section 64 relevantly 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) to do any of the following -

(i) make, vary or cancel a final order;

(ii) refuse to make, vary or cancel a final order;

(iii) make any other order 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 [MCCP Act.]

1. The primary judge held that the right of appeal against the making of the IVRO was conferred by s 64(1)(b)(iii) of the Act, on the following basis:[11]

In the circumstances of this case, the magistrate's first decision resulted in [Ms Leigh] losing her immediate right to a [final orders hearing] to determine her substantive application for a final MRO. Instead, she had to progress through an alternative process towards an application for a final VRO which changed the legal considerations to which the magistrate would be required to have regard in deciding whether to grant an VRO at a [final orders hearing].

The first decision was therefore an order 'in relation to a final order' and appellable pursuant to s 64 of the Act. The appeal is allowed on that basis.

1. The primary judge said that she therefore did not need to determine whether the magistrate's second decision amounted to an appellable error, by virtue of denial of procedural fairness to Ms Leigh.[12] However, the primary judge then said:[13]

In any event, [Ms Leigh] presented a compelling case to make such a finding, in circumstances where:

1. As a consequence of the magistrate's second decision, [Ms Leigh] lost her right to a [final orders hearing] to determine her substantive application for a final restraining order.
2. [Ms Leigh] was self-represented, and [Mr Sanchez] was represented by solicitor and counsel.
3. The [relevant programming orders] were never expressed by the magistrate to be springing orders, in that the potential consequences of non-compliance were not explained to either party.
4. In cancelling the IVRO due to perceived non-compliance by Ms Leigh with [relevant programming orders], the magistrate did not consider the purpose and nature of the programming orders within the context and objects of the Act.
5. Counsel for [Mr Sanchez] misstated the extent of [Ms Leigh's] non-compliance at the hearing when the magistrate made the second decision.

1. On 12 September 2025, Mr Sanchez instituted an appeal to this court against the primary orders. The appeal notice to this court identifies s 64(5) of the Act as conferring the relevant right of appeal, and states that leave to appeal is required and sought under s 79(1) of the District Court of Western Australia Act 1969 (WA) (District Court Act).
2. The right of appeal to this court from the primary judge's orders is, in our view, conferred by s 79(1)(b) of the District Court Act rather than s 64(5) of the Act. In that respect:
   1. Section 64(5) of the Act confers a right of appeal to this court against an order of the kind referred to in s 64(1) of the Act which is made by the District Court. For example, s 64 provides for an appeal to this court against a decision of the District Court making, or refusing to make, a final order. However, an order made by the District Court determining an appeal against a decision of the Magistrates Court to make, or refuse to make, a final order is not itself an order of the District Court of the kind referred to in s 64(1) of the Act. Therefore, s 64(5) of the Act does not confer a right of appeal to this court from a decision of the District Court determining an appeal to the District Court under s 64 of the Act.
   2. Section 42(1) of the MCCP Act gives a right of appeal to this court, without leave, against the District Court's judgment in an appeal 'made to the District Court under' s 40 of the MCCP Act. Section 64(2) of the Act provides that, subject to a presently immaterial exception, an appeal under s 64(1) against a decision made by the Magistrates Court 'is to be made in accordance with Part 7 of the' MCCP Act, in which both s 40 and s 42 of the MCCP Act are contained. Section 64(2) of the Act stipulates the procedure for an appeal against a decision made by the Magistrates Court where a right of appeal is conferred by s 64(1) of the Act.[14] However, s 64 confers an exhaustive right of appeal so as to exclude the general right of appeal conferred by s 40(1) of the MCCP Act against orders made in the course of proceedings in the Magistrates Court.[15] As an appeal to the District Court under s 64 of the Act is not made 'under' s 40 of the MCCP Act for the purposes of s 42(1) of the MCCP Act, s 42(1) does not confer a right of appeal in this case.[16]
   3. Section 79(1)(b) of the District Court Act provides for an appeal to this court, with leave, from a judgment of the District Court that is not a final judgment. As discussed above, no other statutory provision deals with rights of appeal from a judgment of the District Court in an appeal under s 64 of the Act in a way that might exclude the operation of s 79 of the District Court Act. As the primary orders do not finally determine the rights of the parties in a principal cause pending between them, they are not final orders which may be the subject of an appeal as of right under s 79(1)(a) of the District Court Act.[17] Subject to the grant of leave to appeal, Mr Sanchez may appeal against the primary orders under s 79(1)(b) of the District Court Act.
3. Therefore, while the appeal notice in this case misidentifies the statutory source of the right of appeal to this court, it correctly states that leave to appeal is required under s 79 of the District Court Act.
4. Mr Sanchez seeks to appeal against the primary orders on nine grounds of appeal. Grounds 1 - 3 in effect contend that the primary judge ought to have recused herself for reasonable apprehension of bias arising from the associate's email and the suggestion of an additional ground of appeal to the District Court. Ground 4 contends that the finding as to Ms Leigh's health issues noted at [18.1] above was made in the absence of admissible evidence. Ground 5 contends that the primary judge erred in finding that s 64 of the Act conferred a right of appeal against the orders made on 13 July 2023. Ground 6 contends that the primary judge's reasons for decision were inadequate. Ground 7 contends that the primary judge erred in granting an extension of time to appeal against the orders made on 13 July 2023. Ground 8 contends that the primary judge erred in granting Ms Leigh leave to amend her grounds of appeal. Ground 9 contends that the primary judge erred in failing to provide Mr Sanchez an opportunity to apply for costs incurred from granting Ms Leigh leave to amend her grounds of appeal and an extension of time to appeal against the orders made on 13 July 2023.

1. The general principles governing applications for leave to appeal were summarised by this court in Mineralogy Pty Ltd v CITIC Limited.[18] Ordinarily, while not being rigid or exhaustive criteria, the considerations to be taken into account by this court upon an exercise of the discretion to grant or refuse leave to appeal are:

(a) whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; and

(b) whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong.

It is, however, well established that leave to appeal may be granted whenever the interests of justice require it.

1. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.

1. It is convenient to begin by considering the allegation of reasonable apprehension of bias, which if made out goes to the heart of the proceedings.[19]
2. Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The reasonableness of the apprehension may then be assessed.[20] The test is objective and the fair‑minded lay observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[21] However, the fair-minded lay observer is cognisant of human frailty and understands that information and attitudes consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-makers.[22]
3. In the present case, the reasonable apprehension of bias is said to arise from the primary judge causing her associate to send the email referred to at [10] above and indicating the need for Ms Leigh to amend her grounds of appeal in the manner referred to at [13] above.
4. In our view, there is no merit in this contention. In considering her decision, the primary judge identified an issue which a self‑represented litigant had not raised that appeared to the judge to possibly have merit. Her Honour identified the issue in terms which did not suggest she had reached any final view on the matter, and sought written submissions from the parties. At Mr Sanchez's request, the parties were provided with a further opportunity to make oral submissions on the question. The fact that the primary judge pointed out the perceived need for Ms Leigh to amend her grounds of appeal if she wished to rely on the point was simply to identify a procedural requirement to a litigant who might not otherwise appreciate the requirement. Nothing in the primary judge's approach suggested that her Honour had predetermined the issue, that the primary judge did not have a mind open to persuasion or that the primary judge would determine the appeal otherwise than on its legal and factual merits. No reasonable apprehension of bias is established in these circumstances.
5. In our view, the grounds of appeal alleging reasonable apprehension of bias are not reasonably arguable, and do not justify the grant of leave to appeal.

1. The proceedings in both the Magistrates Court and the District Court appear to have been attended by a considerable degree of procedural confusion:
   1. The magistrate granted an IVRO when her Honour's power to do so was at least doubtful; but Mr Sanchez does not challenge the primary judge's finding the magistrate lacked such power in the appeal to this court.
   2. While purporting to act under s 19 of the MCCP Act, the magistrate did not give judgment in the application for a restraining order but rather merely set aside the IVRO (without following the procedure in pt 5 of the Act for doing so) and vacated the hearing dates.
   3. The orders made on 13 July 2023 were not the subject of the appeal to the District Court as only the orders made on 22 July 2024 were identified in the notice of appeal to the District Court. No order giving leave to Ms Leigh to amend her notice of appeal to include the orders made on 13 July 2023 was sought or made.
   4. The manner in which the erroneous issue of an IVRO on 13 July 2023 might have materially affected an exercise of power to set aside the order for failure to comply with procedural directions on 22 July 2024 is not obvious.
   5. While the primary judge allowed the appeal to the District Court, her Honour did not expressly set aside or vary any of the orders made in the Magistrates Court.
   6. It is not clear whether, in the passage quoted at [23] above, the primary judge finally resolved Ms Leigh's complaint that she was not provided with procedural fairness as an alternative basis for allowing the appeal to the District Court. To the extent that her Honour did so, the matters referred to in that passage seem to go more to the merits of the magistrate's decision than the fairness of the procedure by which the decision was reached.
2. However, none of the above issues are the subject of any of the grounds of appeal to this court. Mr Sanchez's grounds of appeal appear misdirected. As we have noted, grounds 1 - 3, which relate to the asserted reasonable apprehension of bias, are without merit. Ground 4 concerns a peripheral finding of fact that seems unlikely to have had a material effect of the outcome of the appeal to the District Court. Ground 6 attacks the adequacy of the primary judge's reasons which, contrary to the assertion in the ground, appear to us to sufficiently disclose her Honour's intellectual process in deciding to dismiss the appeal to the District Court. Grounds 7 - 9 challenge discretionary decisions made by primary judge on procedural matters. Ground 5, which contends there was no right of appeal against the IVRO made on 13 July 2023, is at least arguable. However, ground 5 proceeds on the false premise that a purported appeal against the orders made on 13 July 2023 was before the District Court.
3. Further, the current position is that the IVRO remains set aside and the only prejudice which Mr Sanchez faces as a result of the primary orders is that he faces an undetermined application for an MRO in the Magistrates Court which remains on foot.
4. There is no substantial injustice in Mr Sanchez now facing the prospect of Ms Leigh's MRO application being determined on its merits. That is particularly so in light of the findings noted at [18] above which, apart from the reference to Ms Leigh's health conditions, are not challenged by the grounds of appeal. While Mr Sanchez will suffer additional costs and procedural inconvenience in opposing the application for an MRO, he will be able to appeal against any MRO which may be ultimately made in the Magistrates Court.
5. In the present circumstances, there is no substantial injustice in leaving any error reflected in the primary orders uncorrected. The grant of leave to appeal has the real potential to fragment and further delay the ultimate resolution of the application for an MRO. In all of the circumstances, it is not in the interests of justice to grant leave to appeal even on the assumption that the primary orders were incorrectly made.

1. For the above reasons, at the hearing of Mr Sanchez's application for leave to appeal, we ordered that:
   1. Leave to appeal is refused.
   2. The appeal is dismissed.

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

[1] Magistrates Court, 22.07.2024, ts 11.

[4] Leigh v Sanchez [2025] WADC 53 (primary reasons).

[7] Primary reasons [95], [99] - [107].

[10] Primary reasons [119] - [120].

[11] Primary reasons [123] - [124].

[14] KSJ v GJA [2021] WASCA 98; (2021) 289 A Crim R 418 [89].

[16] This issue did not arise for determination in KSJ. While the court referred to s 64 of the Act regulating the scope of appeals under pt 7 of the MCCP Act at [88], that passage was not directed to the right of appeal to this court. The court appears to have regarded s 79 as the source of the right of appeal in Laurent v Fates [2015] WASCA 226 [25].

[17] Bienstein v Bienstien [2003] HCA 7; (2003) 195 ALR 225 [25]. See also the discussion in CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [46] - [54].

[18] Mineralogy Pty Ltd v CITIC Limited [2024] WASCA 168 [56] - [63].

[19] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289 [10].

[20] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60]; QYFM v Minister for Immigration [2023] HCA 15; (2023) 279 CLR 148 [37] - [38], [67], [162], [194], [225].

[21] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

[22] Ebner [8]; CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76 [28]; QYFM [47], [70], [171].