SOURAKI AZAD [2025] WASCA 124 (22 August 2025)

1. It is convenient to begin by noting the following relevant statutory provisions.

1. The Magistrates Court's power to make a VRO is conferred by s 11A of the RO Act in the following terms:

(a) the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or

(b) a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit personal violence against the person seeking to be protected,

and that making a VRO is appropriate in the circumstances.

1. Section 6 of the RO Act relevantly defines 'personal violence', in relation to persons who are not in a family relationship, to include 'stalking'. 'Stalking' is defined in s 3(1) of the RO Act to include committing an offence under ch XXXIIIB of the Criminal Code (WA) (Code) against the relevant person.
2. Section 338E(2) of the Code, in ch XXXIIIB, relevantly creates an offence of pursuing a person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person. The concept of 'pursue' is defined in s 338D to include 'to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise'. The term 'intimidate' is defined in s 338D of the Code to include causing apprehension or fear in the person.
3. Section 12 of the RO Act sets out matters to which the court is to have regard in considering whether to make a VRO and the terms of the VRO. The court is relevantly to regard the following matters as being of primary importance:

(a) the need to ensure that the person seeking to be protected is protected from personal violence;

(b) the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them[.]

1. Section 13 of the RO Act provides for the restraints which the court may impose on the activities and behaviour of a respondent to an application for a VRO.

1. Section 35 of the MC Act provides that specified judicial review remedies, which include certiorari to quash a decision, may not be issued in respect of or directed to a magistrate.
2. Relevantly under s 36(1)(c) of the MC Act, a person aggrieved by an order made by a magistrate on the ground that it was made without jurisdiction or power, or on any ground that might have justified an order of certiorari, may apply to the General Division for a review order. A review order is an order that the magistrate and any person who will be affected by the order satisfy the court at a hearing that the order sought to be quashed should not be set aside.
3. It is well established that an applicant for a review order must establish, at least, an arguable case of error of a kind capable of grounding a review order under s 36 of the MC Act. The 'arguable case' must be one that has reasonable prospects of success.[3]

1. On 4 January 2024, Magistrate Dias made an interim VRO in favour of the VRO applicant against the appellant. The VRO applicant was represented by counsel at that hearing. The appellant was not present at that hearing. The interim VRO included an order that the appellant not communicate with the VRO applicant by any means whatsoever.
2. The appellant objected to the interim VRO becoming final. A final orders hearing was listed for 5 February 2024. The matter was called on before Magistrate Scutt on that day. The VRO applicant was represented by counsel and the appellant was self-represented at that hearing. Counsel for the VRO applicant indicated that the VRO applicant wanted to proceed with the application that day.[4] The appellant indicated that, subject to being able to attend a hearing in another matter, he did not have any issue with proceeding that day.[5]
3. The final orders hearing was conducted before Magistrate Webb on 5 February 2024, after the appellant had an opportunity to attend the other hearing. The VRO applicant and the appellant were the only witnesses called. Magistrate Webb reserved her decision at the conclusion of the hearing.
4. On 29 February 2024, Magistrate Webb delivered her reserved reasons for making a final VRO.
5. In her reasons, the magistrate made factual findings to the following effect. Save in one respect noted below, the factual findings were well supported by the oral and documentary evidence before her Honour.
6. The appellant was a medical doctor who had matters proceeding in the State Administrative Tribunal before the then President of the Tribunal, Pritchard P. The VRO applicant was the President's associate at the relevant time. The appellant was self-represented in the Tribunal proceedings against the Medical Board of Australia, which commenced in May 2023. The Tribunal proceedings were lengthy with a number of appearances. There was regular contact between the appellant and the VRO applicant, who were previously unknown to each other. The contact included telephone calls and emails.[6]
7. In October 2023, during a break in the proceedings, the appellant asked a personal question of the VRO applicant. The overly familiar behaviour of the appellant towards the VRO applicant subsequently increased. The VRO applicant noticed the appellant attending the Tribunal to watch other matters where she was performing her duties as an associate.[7]
8. The appellant's behaviour towards the VRO applicant increased around this time, and it became apparent that he was searching her social media accounts and the internet to obtain information about her. Notwithstanding that the VRO applicant did not use her full name on Facebook, the appellant also accessed her Facebook page. It appeared he also searched her LinkedIn account, Snapchat and Instagram. On realising the appellant's access or attempted access to her social media accounts, the VRO applicant blocked the appellant from those accounts.[8]
9. The VRO applicant took screenshots of the messages the appellant had sent on her social media accounts. The VRO applicant was becoming concerned about this behaviour and, given these concerns, there was a direction that she would no longer be required to take the appellant's phone calls at the Tribunal. The VRO applicant made a complaint to police about the appellant's behaviour.[9]
10. Magistrate Webb made the following finding which the primary judge found to involve a factual error:[10]

The [VRO applicant's] concern about this behaviour was also raised with court security. Court security sent a warning letter to the [appellant] about his behaviour and contact with the [VRO applicant] on 22 December 2023.

1. On 31 December 2023, after being blocked from the VRO applicant's social media accounts and being unable to make contact at her place of employment, the appellant sent an email to the VRO applicant's father. The email appeared to be primarily concerned with whether or not the VRO applicant had received a letter he had sent to her care of the Tribunal.[11]
2. By email dated 3 January 2024 to the appellant, another associate to the President informed the appellant that the President had directed her to tell the appellant to stop all communications, including by social media sites, with the VRO applicant. The email from the President's chambers was in effect an order to cease and desist the appellant's contact with the VRO applicant.[12]
3. Notwithstanding this email, the appellant then sent a number of emails addressed to the President which, amongst other things, expressed the depth of his love and regard for the VRO applicant. Three of these emails have court dates stamped 11 January 2024, 12 January 2024 and 24 January 2024. All of these documents were sent after the interim VRO had been granted and served upon the appellant.[13]
4. It was apparent in the appellant's cross-examination of the VRO applicant that the appellant believed the VRO applicant had 'mutual regard for him'. In his evidence-in-chief, the appellant spoke of his admiration, love and deep regard for the VRO applicant. It was not contentious that the appellant believed he loved the VRO applicant, and he relied upon these feelings to justify his contact with the Tribunal and the VRO applicant's father. The appellant maintained his belief that he had done nothing wrong, and did not recognise or accept how his behaviour towards the VRO applicant had caused extreme distress and fear to her.[14]
5. After making the above factual findings, and referring to the relevant statutory provisions, the magistrate concluded:[15]

I have no difficulty in accepting the [VRO applicant's] oral evidence in its entirety, and I am satisfied on all of the evidence that prior to the [interim VRO] being served upon the [appellant] that his conduct satisfied the definition of personal violence, and that he had committed personal violence against the [VRO applicant].

Further, I have no difficulty in being satisfied on the evidence that there are reasonable grounds to apprehend that the [appellant] would continue to commit personal violence against the [VRO applicant] unless restrained by an order of the court. I base this finding on the fact that, notwithstanding that a VRO had been made and served upon the [appellant] on 4 January, he continued his correspondence to the [Tribunal] via Pritchard J to express his feelings, love and regard of the [VRO applicant].

Amongst the voluminous correspondence from the [appellant] either to Pritchard J, the [VRO applicant's] father or herself pertaining to his deep feelings for the [VRO applicant], this type of correspondence continued notwithstanding the service of the restraining order. On three separate occasions subsequent to the restraining order being granted and served, as I've indicated, the [appellant] sent voluminous letters regarding the applicant to Pritchard J...

When I consider all of the evidence in its entirety, and when I consider that I have to be satisfied, essentially, on the balance of probabilities, that if not restrained, the conduct will continue, and when I consider the conduct of the [appellant] both before and after the service of the violence restraining order on him, and given his sworn evidence at trial, and given the significant distress, fear and apprehension this contact has caused to the [VRO applicant], I have no difficulty being satisfied, and satisfied to the requisite standard, that a violence restraining should be made to protect the [VRO applicant]. So accordingly, I am satisfied that a violence restraining order is appropriate.

1. After these reasons were delivered, counsel for the VRO applicant applied for an order that the appellant pay the VRO applicant's costs of the proceedings fixed in the sum of $9,000. He noted that the scale rate was $10,293 and that the hearing on 5 February 2023 had gone the whole day. Magistrate Webb granted this application.[16]

1. In the General Division, the appellant sought review of Magistrate Webb's decision to make the VRO and the costs order in favour of the VRO applicant. The primary judge observed that the appellant advanced 12 grounds in support of the review order application, but withdrew four of those grounds at the hearing of the application.
2. After summarising the general principles applying on a review application, identified in this court's decision in Rayney v AW,[17] the primary judge dealt with each of the remaining grounds. His Honour concluded that none of those grounds disclosed any arguable reviewable error by the magistrate and dismissed the application for a review order under s 36(1) of the MC Act.
3. We will address the way in which the primary judge dealt with the review grounds so far as is necessary when dealing with the grounds of appeal to this court.

1. Before turning to consider the merit of the appellant's individual grounds of appeal, it is convenient to consider the extent to which the evidence before the Magistrates Court supported the decision to make a VRO.
2. The VRO applicant's evidence as to the primary facts concerning her interactions with the appellant was not seriously challenged in cross-examination or contradicted by the appellant's evidence. The VRO applicant was a public officer working in the Tribunal in a professional role which required her to interact with the appellant. During the course of the Tribunal proceedings, the appellant engaged or attempted to engage in communications about personal matters with the VRO applicant. The appellant investigated the VRO applicant's personal life and tried to make contact with her through her personal social media accounts. When the VRO applicant blocked his access to those accounts, the appellant persisted in attempting to communicate with her through her father and the judge for whom she worked, even after being told by the Tribunal that he should not do so and after an interim VRO had been made.
3. The appellant's evidence and correspondence to the President confirmed that he had become fixated on the VRO applicant, who had done nothing to indicate that the appellant's feelings towards her were reciprocated in any way. It was clear from his evidence and correspondence with the President that the appellant had no insight into the inappropriate nature of his conduct. For example, in a letter written to the President on 23 December 2023, the appellant said:[18]

I maintain there is no wrongdoing in loving someone of true value. I openly declare my love for the [VRO applicant] and take pride in this feeling. Should the [VRO applicant] no longer be a part of the chamber at the time this letter is filed, I request that it be forwarded to her, as it directly pertains to her. I believe it is her right to read and be aware of the contents of this letter.

1. The appellant repeatedly communicated with the VRO applicant both directly and indirectly. The disclosure of his investigation into the VRO applicant's personal life and his expression of his fixated 'love' for her could reasonably be expected to intimidate, in the sense of cause apprehension and fear in, a person in the VRO applicant's position. The uncontradicted evidence of the VRO applicant, accepted by the magistrate, indicated that the appellant's unrelenting pursuit and intrusions into her personal affairs did cause her to become fearful and apprehensive. The appellant's conduct constituted pursuing (in the sense of repeatedly communicating with) the VRO applicant in a manner that could reasonably be expected to intimidate, and that did in fact intimidate, her, so as to constitute 'stalking' and therefore 'personal violence' for the purposes of the RO Act.
2. Having regard to this evidence, it was well open to the magistrate to be satisfied that the appellant committed 'personal violence', as defined in the RO Act, against the VRO applicant and was likely to do so again. It was also well open to the magistrate to be satisfied that the VRO applicant had reasonable grounds to apprehend that the appellant would commit personal violence by stalking her. In the face of the appellant's ongoing obsessive fixation with the VRO applicant, and his lack of insight into the inappropriateness of his conduct and the distress that conduct was causing the VRO applicant, it was plainly appropriate for the court to grant a VRO to protect the VRO applicant from personal violence, as defined in the RO Act, and hopefully deter the appellant from continuing to engage in that conduct.
3. The compelling nature of the case for the making of a VRO to protect the VRO applicant informs the assessment of the merit of the appellant's claim for review on the ground of jurisdictional error. It is established that in most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[19] The compelling case for the grant of a VRO makes this hurdle more difficult to overcome in the present appeal.

Appeal ground 1: characterisation of letters to the President

1. Appeal ground 1 contends that the primary judge erred in rejecting review ground 2, which argued that the magistrate mischaracterised the appellant's letters to the President.[20] The magistrate noted that the letters indicated that the appellant believed he loved the VRO applicant, relied on his feelings to justify his contact with the Tribunal and did not understand his conduct to be inappropriate. The primary judge held that the magistrate's use and interpretation of the letters was open to her and did not involve any error.[21] Nothing in the appellant's case provides any reason for doubting the correctness of the primary judge's conclusion.

1. The primary judge found that the magistrate made a factual error in the finding, quoted at [24] above, that court security sent a warning letter to the appellant about his behaviour and contact with the VRO applicant on 22 De[22]mber 2023.22 Appeal ground 2 in effect contends that the primary judge erred in failing to find that this error constituted a jurisdictional error which could justify setting the decision to grant the VRO aside.
2. This ground of appeal is without merit. Having regard to the evidence and the magistrate's reasons for decision, there is no realistic possibility that the decision to grant the VRO could have been different if the factual error had not occurred. The immaterial factual error made by the magistrate is incapable of being viewed as a jurisdictional error that could justify setting the VRO aside.

Appeal ground 3: alleged actual and apprehended bias by the magistrate

1. Appeal ground 3 in effect alleges that the magistrate demonstrated actual or apparent partiality, and that the primary judge failed to give due regard to this.
2. The principles in relation to allegations of apprehended bias are well-established and need not be repeated here.[23]
3. Having reviewed the transcript of the Magistrates Court proceedings, we see no basis on which a fair-minded lay observer might reasonably apprehend that the magistrate might not bring an impartial mind to the resolution of the question her Honour was required to decide.
4. Before the commencement of evidence, the magistrate provided the appellant with an explanation of the nature of the proceedings and the procedure to be adopted.[24]
5. When it became apparent that, despite repeated explanations of the importance of asking questions of a witness, the appellant was unable to properly formulate a question, the magistrate intervened and put a question in proper form to the witness. While the magistrate properly ruled some of the questions to be irrelevant, her Honour did not constrain the appellant in putting relevant questions to the VRO applicant. The appellant's cross-examination of the VRO applicant concluded when he indicated that he had no further questions for her.[25]
6. Generally, the appellant was permitted to give his evidence‑in‑chief without interruption. At some points, it was explained to the appellant that he did not need to read out a letter that was in evidence but could give his evidence in relation to the letter.[26] At one point the magistrate ruled on an objection by the VRO applicant's counsel to certain evidence.[27] The magistrate listened to the appellant's closing submissions without interrupting him until he indicated that he was finished.[28] The magistrate then reserved her decision. The magistrate strived to give the appellant a fair hearing, and did nothing which could give rise to any reasonable apprehension that she may not have been impartial.
7. In these circumstances, there is no merit to the appellant's claim of apprehended or actual bias. The primary judge was correct to reject the appellant's review ground to that effect.

1. Appeal ground 4 alleges that the primary judge 'failed to take into account the magistrate's erroneous reliance on fraudulent evidence'. The submissions in support of that ground contain the bare assertion that the VRO applicant's evidence 'lacked credibility and was improperly admitted'. There is no merit to this ground. The evidence was plainly admissible. Whether that evidence should be believed and the weight which should be given to it were matters for the magistrate's assessment. We see nothing in the terms in which the evidence was given which provides a cogent ground for disbelieving the evidence. The primary judge correctly held that the magistrate made no arguable error in accepting the VRO applicant's evidence.[29]

Appeal ground 5: failure to take account of the President's views

1. Appeal ground 5 challenges the way in which the primary judge dealt with review ground 10, which alleged that the magistrate erred in failing to take account of the alleged fact that the President did not consider that the appellant had misconducted himself with respect to the VRO applicant. While doubting whether it could be concluded that the President held that view, the primary judge held that this was not a matter which the magistrate was required to take into account even if it were established.[30]
2. The legal question of whether the facts established by the evidence provided grounds for making a VRO was a question for the magistrate to determine. The opinions of other persons on the appropriateness of the appellant's conduct, however eminently qualified those persons might be to express legal opinions, were not relevant. There was no arguable error in the magistrate failing to have regard to any views which the President may have held about whether the appellant had misconducted himself with respect to the VRO applicant.

Appeal ground 6: reasonableness of costs assessment

1. Appeal ground 6 concerns the magistrate's costs decision. It contends that the primary judge failed to consider whether the magistrate's costs order was legally unreasonable, particularly with regard to its quantum.
2. The primary judge addressed the appellant's submission that no order should have been made as to costs, and that the amount awarded was excessive. His Honour concluded that the magistrate was entitled to make the costs order.[31] The primary judge did not fail to consider the reasonableness of the costs order.
3. Further, it is not reasonably arguable that the costs order made by the magistrate was unreasonable. Ordering the unsuccessful appellant to pay the successful VRO applicant's cost of the successful VRO application was an orthodox exercise of the magistrate's costs discretion. The hearing before Magistrate Webb lasted from 11.24 am to 3.04 pm on 5 February 2024. The parties were required to attend the earlier call-over hearing from 9.13 am to 9.24 am that day. Counsel also attended the delivery of the reserved decision on 29 February 2024. Counsel, who for the purpose of the hearing was required to consider a large volume of material generated by the appellant, claimed less than the scale amount of $9,625 for a half-day trial.[32] An allowance of $9,000 was reasonable in these circumstances. The appellant has advanced no arguable basis for impugning the exercise of the magistrate's costs discretion.

1. Appeal ground 7 concerns the way the primary judge dealt with review ground 12, which argued that the appellant was denied procedural fairness as the matter ought not to have proceeded on 5 February 2024 because the appellant was not ready for the hearing. The short answer to this ground is that the appellant indicated to Magistrate Scutt that he did not have any issue with proceeding that day, and did not seek an adjournment before Magistrate Webb. There was no arguable denial of procedural fairness in not providing the appellant with an adjournment of the hearing that he did not request or indicate he required.

Appeal ground 8: failure by the primary judge to apply the correct test

1. Appeal ground 8 contends that the primary judge failed to correctly apply 'the well-established principles distinguishing the threshold for granting leave to appeal from the standard required for determining the merits of a full appeal'. There is no arguable merit in this ground. His Honour applied the principles articulated in Rayney v AW, including that before a review order can be made the decision‑maker must have made (at least) an arguably reviewable error. The primary judge correctly concluded that none of the review grounds advanced by the appellant disclosed any arguable reviewable error. The primary judge properly refused to make a review order under s 36(1) of the MC Act in these circumstances.

Appeal ground 9: alleged denial of natural justice by the primary judge

The judge's unequivocal refusal to grant the applicant leave - even to have a simple chance to present his argument in defence of his reputation, as well as his legal and equitable rights through a proper appellate process - constitutes a clear and serious breach of the fundamental principles of natural justice.

1. This ground is without merit. The appellant does not establish a denial of natural justice by pointing to an adverse decision on the merits. In the General Division, the appellant was given and took the opportunity to adduce evidence and advance oral and written submissions in support of his claim for a review order. The application for a review order was dismissed on the basis that the appellant had not established any grounds for making a review order. The fact that the appellant does not like this result does not mean that he has been denied natural justice.

1. Appeal ground 10, which is described as a 'cumulative ground' contends:

Taken collectively, certain elements raised under this ground form a compelling basis for granting leave, rooted in the overarching interests of justice - particularly the fundamental importance of preserving the appearance of justice. The cumulative weight of these issues substantially strengthens the justification for permitting the applicant to proceed to a full appellate proceeding, as further elaborated within the body of Appellant's Submissions.

1. As grounds 1 - 9 are devoid of merit, this 'cumulative ground' adds nothing substantive to the appellant's argument.

1. The principles governing the grant or refusal of leave to appeal are well-established. As the court noted in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[33]

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

(b) second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. However, the requirement to show substantial injustice is no more than a guideline for the exercise of what is a broad discretion.

The two considerations bear on each other. The degree of doubt that is sufficient in one case may be different from that required in another. It will be affected by the extent of the risk of substantial injustice if leave were refused, supposing the decision to be wrong. (citations omitted)

1. In the present case the appellant's grounds of appeal are without merit. Both the decision of Magistrate Webb to grant the VRO and the decision of the primary judge to dismiss the appellant's application for a review order were plainly correct. It is not in the interests of justice to grant leave to appeal in these circumstances. While the refusal of a review order means that the VRO will continue to operate to restrain the appellant from contacting the VRO applicant until it expires in accordance with its terms, the primary judge's decision is not attended by sufficient doubt to justify the grant of leave to appeal.

1. For the above reasons, we make the following orders:
   1. The appellant's application for an extension of time to file and serve the appeal notice commencing an appeal from the orders of Howard J made on 21 November 2024 in Supreme Court of Western Australia action CIV/1446/2024 (Orders) is refused
   2. The appellant's application for leave to appeal from the Orders is refused.
   3. The appeal is dismissed.

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

[1] Schaefer v Department of Housing [No 2] [2012] WASCA 229 [35].

[2] Pursuant to r 5A and r 7(1)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA).

[3] See, for example, Re Bajaj [2024] WASCA 149 [26] - [27].

[4] Magistrates Court ts 05.02.24 (proceedings before Magistrate Scutt), 5.

[5] Magistrates Court ts 05.02.24 (proceedings before Magistrate Scutt), 6 - 7.

[6] Magistrates Court ts 29.02.24, 76 - 77.

[10] Magistrates Court ts 29.02.24, 77.

[11] Magistrates Court ts 29.02.24, 77.

[12] Magistrates Court ts 29.02.24, 79.

[13] Magistrates Court ts 29.02.24, 79.

[14] Magistrates Court ts 29.02.24, 78.

[15] Magistrates Court ts 29.02.24, 81 - 82.

[16] Magistrates Court ts 29.2.24, 82 - 83.

[17] Rayney v AW [2009] WASCA 203 [25] - [27], [31].

[18] Appellant's letter filed in the Tribunal on 23 December 2023, page 14.

[19] LPDT v Minister for Immigration [2024] HCA 12; (2024) 280 CLR 321 [2] - [7].

[20] Re Souraki Azad [2024] WASC 433 (primary decision) [21] - [34].

[23] We recently summarised the principles in Zaghloul v Bradley Bayly Holdings Pty Ltd [2025] WASCA 81 [79] - [80].

[24] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 5 - 7.

[25] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 39.

[26] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 45 - 46, 48.

[27] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 52 - 53.

[28] Magistrates Court ts 05.02.24 (proceedings before Magistrate Webb), 67 - 70.

[32] See item 15(a) of the Legal Profession (Magistrates Court) (Civil) Determination 2022. There appears to have been a small but immaterial error in counsel's statement of the scale amount.

[33] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117.4], adopted in Mineralogy Pty Ltd v CITIC Ltd [2024] WASCA 168 [59].