MR LIETZAU -v- BERRY [2025] WASC 56

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION : MR LIETZAU -v- BERRY [2025] WASC 56

CORAM : TOTTLE J

HEARD : 28 JANUARY 2025

DELIVERED : 26 FEBRUARY 2025

FILE NO/S : CIV 1010 of 2024

BETWEEN : MR LIETZAU
Applicant

    AND

    MICHAEL BERRY
    First Respondent

    CATHERINE CRAWFORD
    Second Respondent

    MS LIETZAU 
    First Other Party

    SAMANTHA BAILY
    Second Other Party

    LEGAL AID COMMISSION OF WESTERN AUSTRALIA
    Third Other Party

    ANN KORZENIECKA
    Fourth Other Party

    RACHEL MILTON
    Fifth Other Party

Catchwords:

Administrative law – Judicial review – Where parenting proceedings in Family Court and restraining order proceedings in the Magistrates Court – Where Family Court judge dismissed application for anti-suit injunction – Whether error of law made in application of the principles governing the grant of anti-suit injunctions – Whether asserted error of law a jurisdictional error – Where no error of law established – Where asserted error not a jurisdictional error – Turns on own facts

Administrative law – Judicial review – Where parenting proceedings in Family Court and restraining order proceedings in the Magistrates Court – Where magistrate dismissed application for stay of restraining order proceedings – Whether error of law made in application of principles governing the grant of stay – Whether asserted error of law a jurisdictional error – Where no error of law established – Where asserted error of law not a jurisdictional error – Turns on own facts

Administrative law – Judicial review – Where relief sought included orders of a disciplinary nature in respect of judicial officers – Judicial independence – Judicial immunity from suit – Application for relief sought scandalous and vexatious

Legal practitioners – Judicial review – Where relief sought included orders that legal practitioners be referred to the Supreme Court to show cause why names should not be removed from Supreme Court roll – Application scandalous and vexatious

Legislation:

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Legal Profession Uniform Law 2022 (WA)
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : In Person
First Respondent : A Shuy & G Mullins
Second Respondent : A Shuy & G Mullins
First Other Party : No appearance
Second Other Party : BW Ashdown
Third Other Party : A Shuy & G Mullins
Fourth Other Party : RS Hooper SC
Fifth Other Party : BW Ashdown

Solicitors:

Applicant : In Person
First Respondent : State Solicitor’s Office
Second Respondent : State Solicitor’s Office
First Other Party : In Person
Second Other Party : In Person
Third Other Party : State Solicitor’s Office
Fourth Other Party : In Person
Fifth Other Party : In Person


Cases referred to in decision:

AA v BB [2013] VSC 120; (2013) 296 ALR 353
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285 FCR 447
De Angelis v De Angelis [2000] VSC 409; (2000) 158 FLR 331
Dunne v P [2004] WASCA 239; (2004) 29 WAR 232
Fightvision Pty Ltd v Tszyu [2000] NSWSC 899
Genesalio & Genesalio [2020] FamCAFC 113; (2020) 61 Fam LR 1
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
Herron v McGregor (1986) 6 NSWLR 246
Juries Against Illegal Laws Incorporated v The State of Tasmania [2010] FCA 578
Kushing and Kushing [2008] FamCA 555
Lederer v Hunt [2007] FamCA 55
Lin v Yew [2020] FamCA 1102
Moore v Inglis (1976) 50 ALJR 589
Nootkamp & Brulja [2023] FedCFamC1A 90
Queensland v Mr Stradford (a pseudonym) [2025] HCA 3
Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294; (2021) 106 NSWLR 154
Spears & Caro [2020] FamCA 985
Stanley v DPP (NSW) [2023] HCA 3; (2023) 278 CLR 1
Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341
Teo v Guan [2015] FamCAFC 94
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

TOTTLE J:
Introduction
1 In these proceedings the applicant has applied for judicial review of two decisions, one made by the first respondent, a judge of the Family Court of Western Australia, dismissing an application for an injunction restraining the first other party from pursuing an application for a family violence restraining order in the Magistrates Court of Western Australia and 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 first other party’s application for a family violence restraining order.
2 For the reasons given below the application must be dismissed.
Background
3 The applicant and the first other party were married in 2007. They had three children. They separated in July 2016 and were divorced in May 2018. Both the applicant and the first other party are legal practitioners.
4 In March 2017 the first other party commenced parenting proceedings in the Family Court of Western Australia under pt VII of the Family Law Act 1975 (Cth). An independent children’s lawyer was appointed to represent the interests of the children. The parenting proceedings were heard before the first respondent over five days in February 2023 and the first respondent reserved his judgment.
5 On 29 May 2023, whilst the first respondent’s judgment was reserved, the first other party made an application for a family violence restraining order in the Magistrates Court of Western Australia. The circumstances that were the catalyst for the first other party’s application are described later. A magistrate made an interim family violence order under the Restraining Orders Act 1997 (WA). On 20 June 2023 the first other party’s solicitor filed a copy of the interim family violence restraining order in the Family Court as required by the Family Court Rules 2021 (WA).
6 On 27 June 2023 the applicant applied to the Family Court for an anti‑suit injunction restraining the first other party 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. In his written submissions to the Family Court the applicant described the essential question raised by the injunction application as follows:
Should this Court grant an anti-suit injunction restraining the Mother from proceeding with her application to the Magistrates Court for a restraining order, essentially on the basis that she should have made, and did not make, any such application, if at all, to this Court at trial?
7 The application was opposed by the first other party who was represented by the fourth other party and by the independent children’s lawyer, the fifth other party (the second other party was the principal of the law firm that employed the fifth other party).
8 The injunction application was heard on 28 September 2023. At the conclusion of the hearing the first respondent dismissed the application. His Honour published reasons for dismissing the application on 10 November 2023.
9 On 27 November 2023 the applicant applied to the Magistrates Court for an order staying the first other party’s application for a family violence restraining order. The application was heard by the second respondent. Her Honour reserved her decision and on 12 December 2023 delivered oral reasons for refusing to grant a stay. The substantive application was adjourned to 14 February 2024 for mention.
10 The first respondent delivered judgment in the parenting proceedings on 23 January 2024 and made orders that provided, among other matters, that the first other party should have sole parental responsibility for the children but that the children should spend time with and communicate with the applicant in accordance with their wishes and as agreed between the applicant and the first other party.
Procedural matters
11 On 9 February 2024 orders were made to the effect that the identities of the applicant and the first other party be kept confidential and that they be referred to by the pseudonyms Mr Lietzau and Ms Lietzau respectively.
12 On 22 March 2024 the Attorney-General for Western Australia was granted leave to intervene. The intervenor filed comprehensive and helpful written submissions and appeared at the hearing by counsel.
13 On 22 July 2024 this court made orders that:
(a) the application for judicial review against the second respondent proceed as an application for a review order pursuant to Order 56A of the Rules of the Supreme Court 1971 (WA) (the RSC) as between the applicant, the second respondent, the first other party and the intervener;
(b) the requirement in RSC O 56A r 2(1)(a) for the application for a review order to be made ex parte be dispensed with;
(c) the application for a review order and the final order be heard at the same time; and
(d) the application for judicial review against the first respondent be heard together with the application for a review order against the second respondent.
The Family Court proceedings
14 In the Family Court the first other party sought parenting orders that included orders to the effect of the orders ultimately made by the first respondent described in [10]. The Independent Children’s Lawyer sought orders that included the orders sought by the first other party. The applicant sought orders including orders that he be granted sole parental responsibility, the children live with him and they spend time with the first other party on alternate weekends.
15 One of the issues that required determination in the parenting proceedings was whether either party was at risk of family violence perpetrated by the other and the nature of the violence and risk. In outlining the legal principles applicable to the parenting proceedings the first respondent explained the context in which the issue of family violence arose:
Section 60CA of the Act requires that a Court must regard the best interests of the child as the paramount consideration, when deciding whether to make particular parenting orders in relation to a child. The primary and additional considerations that are necessary to take into account in determining what is in a child’s best interests are listed in Section 60CC.
In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence. The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
By application of Section 65D(l), the Court may make such a parenting order as it thinks proper, relevantly subject to Section 61DA. Section 61DA(l) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if, relevantly, there are reasonable grounds to believe that a parent of the child has engaged in family violence. The presumption may otherwise be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include, but are not limited to, repeated derogatory taunts, preventing a member of the person’s family from making or keeping connections with his or her family, and unlawfully depriving a family member of his or her liberty. The determination of what constitutes behaviour that ‘coerces or controls’ must be considered in the context in which the conduct occurred. (footnotes omitted)
16 It is apparent from the first respondent’s findings that evidence was led at trial about the applicant’s conduct which might constitute family violence. Reference to his Honour’s findings is necessary to indicate the scope of the issues raised at trial. His Honour found the applicant had engaged in (non-physical) family violence against the first other party. His Honour divided the violence into categories. Two categories were described respectively as: subjecting the first other party to complaints to the Legal Profession Complaints Committee and subjecting the first other party’s legal practitioners to complaints to the Legal Profession Complaints Committee. As to complaints about the first other party, the first respondent described the history of a complaint made by the applicant about the first other party and recounted that when the complaint was dismissed, the applicant applied for internal review of the decision dismissing the complaint. His Honour found:
The father’s complaint, and his engagement with the statutory internal review processes, is coercive behaviour by the father against the mother, and is properly characterised as family violence against the mother. Given the Court’s findings about the subject matter of the father’s complaint, there is no proper basis on which this complaint can any longer be pursued in any Court or tribunal.
17 As to the complaints about the first other party’s legal practitioners, after describing the substance of the complaints, the first respondent found:
The Court finds that the father’s behaviour in making these complaints about these three legal practitioners was coercive and controlling of the mother, and likely to create additional stress and further issues for the mother to consider with her legal representatives.
18 The orders made by the first respondent recited:
The Family Violence Restraining Order between the parties in matter number MC/CIV/PER/RO/2898/2023 relevantly prohibits the Respondent from communicating with the Applicant except through an Australian legal practitioner;
and included the following order:
These Orders are orders to which Section 68Q of the Family Law Act 1975 (Cth) applies and to the extent that any of these Orders are inconsistent with any Family Violence Restraining Order between the parties, including in matter number MC/CIV/PER/RO/2898/2023, the Family Violence Restraining Order is invalid to the extent of any inconsistency.
19 Section 63 of the Restraining Orders Act confers power on the Family Court to make a restraining order against a party to the proceedings or any other person who gives evidence in proceedings. The first other party did not apply for a restraining order under the Restraining Orders Act against the applicant in the parenting proceedings.
20 The applicant appealed against the first respondent’s orders and the appeal was dismissed as was a subsequent application to the High Court for special leave to appeal.
The application in the Magistrates Court for a family violence restraining order
21 On 29 May 2023 the first other party commenced an application for a family violence restraining order by completing and filing a pre‑printed application form and a pre-printed affidavit. Both the application form and the affidavit contain questions designed to elicit information from applicants. In response to a prompt to set out the evidence to be given in support of her application, the first other party wrote:
Psychological and Emotional abuse and Coercive control perpetrated through a third party (in particular, the Legal Practice Board, Legal Services Complaints Committee).
22 In her affidavit in support sworn on 29 May 2023 the first other party stated that she had not previously applied for a restraining order against the applicant and provided the following general description of the applicant’s behaviour:
I left the marriage following coercive control, emotional and psychological abuse against me and physical and emotional abuse of our children.
I commenced Family Court Children’s proceedings in 2017. [The applicant] reported my lawyers and proposed mediator to the then LPCC to try to stop them from acting for me on the basis that I didn’t have mental capacity to give instructions.
I divorced [the applicant] in 2018.
Between around 2017 and 2020 [the applicant] made complaints to AHPRA about my doctors, alleging they had brain­washed me into leaving him, that they were ‘evil witchdoctors’, had ‘failed to diagnose me with a borderline personality disorder’ and were ‘conspirators to kidnapping’, among other things.
He has also articulated his theories about me to anyone who would listen since 2017 – including many members of the legal profession, the Principals of my children’s schools.
I was told by the Department of Human Services that an order for him to pay child support was appealed on the basis that child support is not payable to a ‘kidnapper’, though I was not a party to those proceedings.
From 2017 until the present [the applicant] has made complaints about me, my family court lawyers and other lawyers and judicial officers to the Legal Practice Board. Until recently, I anticipated there may have been around 10 – 20 complaints. I suspected that all of the complaints centre around me. In particular, his fixation that I have an undiagnosed personality disorder and have kidnapped our children.
We finally reached a Family Court trial in February of this year where [the applicant] continued to articulate these views despite considerable expert evidence to the contrary – subject of course to findings by the Court yet to be delivered.
Since then, he has continued to make complaints to the Legal Practice Board. I found out approximately 2 weeks ago that the number of complaints made to date is 55 and I am at the centre of every one of those complaints. This shocked and distressed me.
I find it extremely distressing that he is saying all of these things (and appears to genuinely believe them) repeatedly and so broadly across my profession.
This protracted behaviour has caused me emotional trauma and it affects my mental health.
After finding out (in writing from the LPB which I am prepared to provide to the court in confidence) approximately 2 weeks ago the number of complaints, I don’t want to go to work at my office in the city based on how many people must know about these derogatory claims about me.
His fixation on me 7 years after leaving him is also frightening.
I have not previously applied for a restraining order because (a) I feared it may push him ‘over the edge’ and he could hurt me or my children, and (b) he might get tired of pursuing me. However, it has continued for 7 years since I left him.
I would like [the applicant] to be restrained from making any complaints to any third parties that have anything to do with me in their subject matter and he be restrained from coming within a certain distance of me other than in a court.
23 On 29 May 2023 the first other party gave oral evidence at the hearing of her application for the interim family violence restraining order. The magistrate questioned the first other party closely. In response to that questioning the first other party gave evidence that she received a telephone call from a member of the staff of the Legal Practice Complaints Committee on 21 April 2023 about a complaint made by the applicant. She explained the complaint related to:
a conversation I had with [a very senior member of the judiciary] in 2006 that [the applicant] has been trawling through his mind to find anything and anyone he can complain about, disclosing my personal information. It’s a relentless campaign, I would submit, in trying to denigrate me amongst my peers in the profession. I do have the Legal Practice Board’s support in applying for these orders.
24 The first other party also recounted to the magistrate that she had recently exchanged emails with the applicant’s parents. On 25 May 2023 the applicant’s parents sent the first other party an email as follows:
[first other party], we have been in discussion with [the applicant] as you requested, and you have lit a bonfire!!!
25 The magistrate made an interim family violence restraining order. The operative parts of the order were as follows:
PART A: ORDERS. EXCEPT AS SET OUT IN PART B YOU MUST NOT:
be in possession of a firearm item, a firearms authorisation or obtain a firearms authorisation,
cause or attempt to cause damage to any property in the possession of the Person Protected,
communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means,
behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected,
harass the Person Protected by any electronic means, including by using the internet and any social network application (such as ‘facebook’) to depict or refer in any offensive manner to the Person Protected,
enter or remain upon [redacted] or any other premises where the Person Protected lives or works or is educated or be within 100 metres of the nearest external boundary of those premises,
enter upon the grounds of [redacted], and/or [redacted] College and/or [redacted] Primary School or be within 25 metres of any of those places;
approach or remain within 25 metres of the Protected Person or any property (including vehicles) of, or under the control of, the Person Protected,
monitor the movement or communications of the Protected Person,
cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on your behalf.
PART B. YOU WILL NOT BREACH THE ORDERS IN PART A IF YOU:
communicate with the Person Protected through an Australian Legal Practitioner as defined in the Legal Profession Uniform Law Application Act 2022 or a person acting under section 48 defined of the Aboriginal Affairs Planning Authority Act 1972,
instruct a process server or bailiff or other person to serve any legal process requiring service on the Person Protected,
participate in or attend court events in proceedings in which the Person Protected and you are parties or witnesses, and to comply with any order or direction of a Court,
26 The interim order was served on the applicant on 9 June 2023.
27 On 15 June 2023 the Magistrates Court set 27 November 2023 as the date for the final hearing of the application.
The application for the anti-suit injunction in the Family Court
28 On 27 June 2023 the applicant applied to the Family Court for an anti‑suit injunction in the following terms:

2. Until further order, and subject to par 3, the Mother be restrained by injunction and an injunction is hereby granted restraining her from:
   a. continuing with proceeding MC/CIV/PER/RO/2898/2023 in the Magistrates Court at Perth, and in particular from asking the Magistrates Court to make a final order in that proceeding; and
   b. commencing or proceeding with any other similar proceeding, or seeking any relief similar to the relief sought in that proceeding, in any Court other than this Court.
3. The Mother is directed to apply to the Magistrates Court within 7 days for an order cancelling the interim order made in proceeding MC/CIV/PER/RO/2898/2023 on 29 May 2023 and to obtain an order cancelling that interim order.
   29 The applicant sought a further order as follows:
   The Mother is refused leave to apply to this Court for any orders in terms of or similar to the interim order of the Magistrates Court at Perth made on 29 May 2023, in proceeding MC/CIV /PER/RO/2898/2023, on either an interim or final basis, on the grounds that the Mother could and should have made any such application at the trial in this Court in February 2023 and did not do so.
   30 In addition to the anti-suit injunction the applicant sought interim parenting orders.
   31 The applicant supported the application with two affidavits sworn by him to which he attached copies of the documents filed in the Magistrates Court proceedings, the transcript of the hearing of the first other party’s application for an interim family violence restraining order, and copies of correspondence exchanged with the Legal Practitioners Complaints Committee and related documents.
   32 The first other party swore an affidavit in opposition to the application in which she gave the following evidence about the events leading up to her application for the interim family violence restraining order:
   9 In late April 2023, I was contacted by the Legal Services and Complaints Committee (LSCC) and advised that [the applicant] had made a complaint dating back to 2006, relating to a current member of the Judiciary, with me as the victim at the centre of the complaint.
4. The LSCC also advised me I could not discuss the complaint with anyone, save to obtain legal advice. I do not intend to address the complaint in this affidavit.
5. Learning of the complaint distressed me immensely for numerous reasons.
6. I note that [the applicant] deposes to the complaint, most significantly at paragraphs:
   (a) 204, 217 to 220 of [the applicant]’s First Affidavit; and
   (b) 24 to 29 of [the applicant]’s Second Affidavit.
7. Then on 10 May 2023, I received correspondence from Mr John-Paul Colella, Manager – Investigations and Legal, Legal Services and Complaints Committee, Legal Practice Board (LSCC letter).
8. The LSCC letter related to a complaint against me of unsatisfactory professional conduct and / or professional misconduct made some years ago to the LSCC by a third party to a matter I had conduct of in 2016.
9. I have chosen not to annex the LSCC letter to this affidavit as I do not wish [the applicant] to have a copy. I fear that if [the applicant] is given a copy it will lead him to making further complaints and providing copies to third parties. I am able to provide a copy of the LSCC letter to the Court and the [Independent Children’s Lawyer], if directed.
10. Two parts of the LSCC letter distressed me.
11. The first, was that the LSCC indicated that [the applicant] appeared to be a very difficult individual who had made 55 complaints against legal practitioners and that all of those complaints in some way related to me and our dispute over parental rights.
12. The second, was that the LSCC was concerned that there was a ‘real risk’ that a public reprimand (for me) would be ‘weaponised by’ [the applicant] for ‘a perceived benefit in acrimonious Family Court proceedings that may cause psychological harm to either or both you and your children’. The LSCC ultimately determined that the personal risk to me in a public reprimand outweighed any benefit.
13. When reading the LSCC letter I was shocked and distressed to read that [the applicant] had made 55 complaints against legal practitioners that in some way related to me and these proceedings. I was, and still am, deeply troubled about how many of my colleagues in the profession have heard the things [the applicant] has been saying about me for all this time. I was also distressed to read that the LSCC were concerned about the impact on me and our children.
    20 I had been under the impression that [the applicant] had made under 20 complaints against lawyers that in some way related to me.
    33 In a later part of her affidavit, the first other party addressed a complaint raised by the applicant to the effect that the interim family violence restraining order restricted his ability to interact with the children. The first other party deposed:
14. I have not discouraged the children from contacting [the applicant] through Facebook.
15. I am content to communicate with [the applicant] in relation to the children, as was my evidence during the trial.
16. My position remains that I will not stand in the way of the children having a relationship with [the applicant] in a manner that is in accordance with their wishes.
17. I simply want [the applicant] to leave me alone and to cease using third parties, systems and agencies to disparage me, harass me and to perpetuate his unfounded allegations about my mental health.
    34 In her written outline of submissions the second other party, in her capacity as the Independent Children’s Lawyer, contended that the principles to be applied to an anti-suit injunction application to restrain proceedings before another Australian court were the same as those applied to an application to restrain proceedings before a foreign court and cited the Full Court of the Family Court’s decision in Lederer v Hunt as authority for that contention. In Lederer v Hunt, the Full Court cited the High Court’s decision in CSR Ltd v Cigna Insurance Australia Ltd as the leading authority on anti-suit injunctions. The second other party also cited CSR Ltd v Cigna Insurance Australia Ltd in her written outline of submissions.
    35 In written submissions filed in support of the application for an injunction the applicant articulated his case as follows:
18. The question raised by this part of the application is very simple, has been completely misrepresented by the [Independent Children’s Lawyer], and is this: Should this Court grant an anti‑suit injunction restraining the Mother from proceeding with her application to the Magistrates Court for a restraining order, essentially on the basis that she should have made, and did not make, any such application, if at all, to this Court at trial?
19. In essence, the dispute between the parties to these proceedings and the parties to the Mother’s claim in the Magistrates Court is a ‘controversy with respect to [their] marital relationship’. As such, it relevantly has two primary limbs, as follows:
    a. who should have parental responsibility?
    b. should any restraining orders be made, and if so, what restraining orders?
20. This Court has federal jurisdiction to resolve the first limb, and jurisdiction both to resolve the second limb and to override any orders made by the Magistrates Court in relation to the second limb. By contrast, the Magistrates Court has no jurisdiction to resolve the first limb, and although it has State jurisdiction to resolve the second limb, that jurisdiction is subject to the overriding jurisdiction of this Court referred to earlier in this paragraph. This Court, the Family Court of Western Australia, also has jurisdiction to grant an anti-suit injunction, against either a foreign or Australian court. Sometimes that jurisdiction is described as ‘inherent’, but a more accurate description is that it is ‘implied’. (Case law suggests that this Court’s federal counterpart’s jurisdiction to grant such an injunction is equitable as well, but this Court is bound to conclude that it has no equity jurisdiction.)
21. There are two limbs to this Court’s implied jurisdiction to grant an anti-suit injunction:
    a. ‘an implied power to make orders to prevent [the Court’s] processes being abused and to protect the integrity of its processes once set in motion’;
    b. ‘the traditional [implied] power to stay proceedings … on inappropriate forum grounds [which] is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process’.
22. In the present case, the Court’s power:
    a. to exercise the first limb exists merely because both parties have regularly invoked the Court’s statutory substantive jurisdictions, as described above;
    b. to exercise the second limb is contingent upon a preliminary finding that this Court is not a clearly inappropriate forum for resolution of the dispute presently before it.
23. The contingency that must be satisfied before the second limb can be exercised clearly exists in the present proceedings. The parties were married to each other, and the children are all children of the marriage. Both parties are resident in Western Australia, and the Court’s originating process was served on the Father here. Before the Mother even commenced her application to the Magistrates Court for a restraining order, the parties took the present proceedings to trial, at which both parties asked the Court to exercise its regularly invoked federal parenting jurisdiction, and the Father also asked the Court to exercise its State restraining order jurisdiction. The Court reserved its decision at trial.
24. In the present case:
    a. the first limb of the anti-suit injunction jurisdiction is focused on whether such an injunction is required to protect the integrity of this Court’s processes, as already set in motion in these proceedings, which have already gone to trial;
    b. that limb is clearly enlivened:
    i. not only because the interim order made by the Magistrates Court very substantially interferes with the Father’s parental responsibility, and with the decision of Magistrate Monaghan not to interfere with that parental responsibility on an interim basis, and of Justice Moncrieff to order the Mother to make the children available to be reunited with the Father, but
    ii. also because the Mother did not ask this Court at trial to make any restraining order (interim or final) against the Father, and the parties have already closed their cases at trial and the Court’s trial decision is reserved:
    c. the second limb of the anti-suit injunction jurisdiction is focused on whether the Mother’s claim in the Magistrates Court is ‘oppressive, vexatious or an abuse of process’, and is clearly enlivened on the basis set out in the next two paragraphs.
25. ‘It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue.’ Also relevant is the stage at which the first of the two proceedings to be commenced has reached; the present proceedings have gone to trial, and judgment stands reserved. Further, and as submitted above, this Court has jurisdiction to resolve the whole controversy between the parties, whereas the Magistrates Court can resolve only part of it, subject to this Court’s overriding concurrent jurisdiction.
26. Thus, and bearing in mind that both jurisdictions have been regularly invoked and are being pursued, there is a strong (indeed it is submitted overwhelming) prima facie basis to conclude that the Magistrates Court is a clearly inappropriate forum to resolve any part of the overall controversy. That would be so even if the Magistrates Court jurisdiction had been invoked first, which is why it was right and proper that in 2017 the Father discontinued his own Magistrates Court application after the Mother had later commenced the present proceedings in this Court. It follows that both limbs disclose a very strong case for an anti­suit injunction, which should therefore be granted in the terms sought by the Father. (footnotes omitted)
    36 The applicant explained the basis of his application for an injunction in oral submissions as follows:
    I’m seeking it on two primary bases. One is that this court is bound by Henry v Henry, in which the High Court said that where you have a dispute between two parties, and one of those parties commenced proceedings in another Australia court, seeking the same relief that could have been sought in the first proceedings, the second proceedings are prima facie vexatious and oppressive. And my submission is that the court is bound by the Henry v Henry case to proceed on that basis.
    It must proceed on the basis that the second proceeding commenced by my ex-wife after she had closed her case in this court and this court had reserved its judgment at trial, it’s prima facie, vexatious and oppressive. And then I go on to say it’s all the more vexatious and oppressive because of the stage at which this court’s proceedings had achieved. Most importantly, she had closed her case at trial.
    37 This explanation was followed by an exchange with the first respondent as follows:
    HIS HONOUR: Yes. The evidence in the Magistrates Court is a lot more extensive, it would seem than the matters that were dealt with in the trial before me.
    [THE APPLICANT]: And she chose not to raise those matters in the trial before you, even though you had jurisdiction to deal with them.
    HIS HONOUR: And the matters in the Magistrates Court are well within the qualifications of the Magistrates Court to deal with, and they regularly deal with restraining order matters, [Mr Applicant].
    [THE APPLICANT]: Your Honour, this court is bound by Henry v Henry and therefore required to proceed on the basis that where, as here, this court had jurisdiction to deal with those matters at trial and she chose not to raise them, this court must proceed on the basis that the proceedings in the Magistrates Court are prima facie, vexatious and oppressive. That’s what Henry v Henry said. And both this court and the Magistrates Court are bound by Henry v Henry. The way the Magistrates Court should have dealt with the application is it should have raised Henry v Henry and said to my ex-wife, ‘Why did you bring these proceedings in this court when you could and should have brought them as part of your case at trial in the Family Court? And when you could apply to the Family Court for leave to reopen your case at trial so as to raise these matters that you chose not to raise at trial and haven’t done so.’
    38 The first respondent’s reasons for dismissing the application for an injunction were published on 10 November 2023 and, relevantly, were as follows:
    The father contends that the question raised by this application is very simple: Should this Court grant an anti-suit injunction restraining the mother proceeding with her application to the Magistrates Court for a restraining order, essentially on the basis that she should have made, and did not make, any such application, if at all, to this Court at trial?
    The question posed by the father is based upon the incorrect premise that the mother should have made this application at trial. The mother was under no obligation to make this application at trial. The trial properly focused on identifying the form and content of parenting and other orders to be made, pursuant to Part VII of the Family Law Act 1975 (‘the Act’), which were in the best interests of the children.
    The mother was not required to bring her application for an interim Family Violence Restraining Order in this Court, or otherwise apply to re-open her case, in circumstances where:
    (1) Some of the material circumstances she deposes to, which give rise to the application, occurred after the trial was adjourned.
    (2) The Magistrates Court has jurisdiction to determine the application and is the usual Court in which such applications are brought.
    (3) By operation of Section 114AB(1) of the Act, Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of Parts 1 to 6 of the Restraining Orders Act 1997, which is a prescribed law and is capable of operating concurrently with Sections 68B, 68C, 114 and 114AA for the purpose of Section 114AB(1).
    (4) This Court is required to take into account, by operation of Section 60CC(3)(j) and (k), any family violence involving the child or a member of the child’s family and any relevant inferences that can be drawn from any family violence order that applies, or has applied to the child or a member of the child’s family, based upon a number of enumerated considerations, irrespective of the identity of the Court which makes the order.
    Given the circumstances just outlined, the Court does not accept the father’s submission that the mother applying for and obtaining an interim Family Violence Restraining Order in the Magistrates Court compromises the integrity of this Court’s processes or is otherwise oppressive, vexatious or an abuse of process.
    39 Brief explanations of the provisions of the Family Law Act referred to in the extract from the first respondent’s judgment are required. In outline:
    (a) Section 60CC sets out the considerations applied to determine what is in a child’s best interests. The section divides the considerations into Primary considerations and Additional considerations. The latter include: any family violence involving the child or a member of the child’s family (s 60CC(3)(j)) and if a family violence order applies any relevant inferences that can be drawn from the order taking into account a number of circumstances specified in s 60CC(3)(k).
    (b) Section 68B confers power on the Family Court, if proceedings are issued under pt VII of the Family Law Act, to grant an injunction for the personal protection of a child or, relevantly, a parent of a child.
    (c) Section 68C confers power of arrest on police officers if an injunction granted for the personal protection of a person under s 68B is in force and the police officers believes, on reasonable grounds, that the person against whom the injunction is granted has breached the injunction by causing, or threatening to cause, bodily harm to the person intended to be protected by the injunction or by harassing, molesting or stalking that person.
    (d) Section 114 confers power on the Family Court to grant injunctions in proceedings of the nature specified in the section.
    (e) Section 114AA confers a power of arrest on police officers if an injunction granted for the personal protection of a person under s 114 in terms substantially the same as the power of arrest conferred by s 68C.
    (f) Section 114AB(1) provides sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.
    40 The Restraining Orders Act is a prescribed law for the purposes of s 114AB of the Family Law Act. There is ample authority for the proposition that the jurisdiction conferred by the Restraining Orders Act is capable of operating concurrently with that conferred by the Family Law Act. The intervenor cited the cases in which the Restraining Orders Act or equivalent interstate legislation have been described as separate statutory regimes capable of operating concurrently. Although the applicant contended those cases did not set out the principles that are to be applied in determining the anti-suit injunction application or the stay application, he did not contend that jurisdictions conferred by the Restraining Orders Act and its interstate equivalents could not operate concurrently with the Family Law Act.
    Application for a stay of the proceedings in the Magistrates Court
    41 On 27 November 2023 the applicant and the first other party appeared before the second respondent for the ‘final order hearing’ of the application for a family violence restraining order. The applicant applied for orders staying the proceedings permanently and cancelling the interim order on the ground that the proceedings were vexatious, oppressive and an abuse of process.
    42 The substance of the applicant’s submissions in support of the stay application reflected the submissions that he had made to the Family Court in support of the application for an injunction. The following passages of the transcript encapsulate the contentions advanced by the applicant:
    And I will refer, in particular, to the case of CSR Limited v Cigna Insurance, which I say makes abundantly clear – it’s a seven-member judgment. All seven members of the court made abundantly clear that where someone brings proceedings simultaneously and concurrently in two different courts, one of those proceedings is regarded as vexatious and oppressive because the defendant to the proceedings must not be subjected to two court cases simultaneously in circumstances where one of the courts has jurisdiction to resolve the whole dispute.
    . . .
    So what I say is, in circumstances where there’s the proceeding in the Family Court on foot and the proceeding in this court on foot, in essence, the dispute between the parties is – and I’m quoting here from the High Court case of Henry v Henry – a controversy with respect to our marital relationship has two primary limbs, namely, first, who shall have – should have parental responsibility, and the Family Court has jurisdiction to resolve that issue.
    And, secondly, should any restraining orders be made and, if so, what restraining orders? And both courts have jurisdiction to resolve that dispute. And then I quote Henry v Henry again, and I say – this is what Henry v Henry said:
    It’s prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue.
    And so what I say is prima facie these proceedings, which were commenced second, are vexatious and oppressive. And Henry v Henry referred there to an earlier case in which it was also held that it was an abuse of process – abuse of process of the second court. Now, also relevant to this question is the stage at which – and this is paragraph 3 of the outline – the stage at which the first of the two proceedings to be commenced is reached.
    In this case, the Family Court proceedings have gone to trial, but there’s a reserved judgment. And my ex-wife has the right to apply to reopen if her case if she wants to – her case if she wants to. Further, the Family Court has jurisdiction to resolve the whole controversy, whereas this court can resolve only part of it subject to the Family Court’s overriding concurrent jurisdiction. And as your Honour knows, the Family Court can make orders overriding restraining orders made by this court.
    43 At the request of the applicant and with the consent of the first other party the second respondent made some minor amendments to the terms of the interim order to overcome practical problems raised by the applicant and otherwise reserved her decision on the application for a stay. Her Honour delivered oral reasons for refusing the application on 12 December 2023. Her Honour addressed the applicant’s reliance on Henry v Henry as follows:
    Now, I note the primary authority that the respondent relied upon, Henry v Henry, held that where proceedings are pending both in an Australian court and a court of another country it’s necessary for the Australian court to have regard to the existence of the foreign proceedings in determining whether to stay its own proceedings on forum non-convenience grounds. In reaching that conclusion, the majority pointed out that although it’s not necessarily vexatious or oppressive to bring proceedings in different countries, quote:
    … the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such … that prima facie the continuation of one or the other should be seen as vexatious or oppressive within the rough sense of the words.
    Now, perhaps the key error in the respondent’s analysis of the authorities is to assert that there is one controversy. The respondent did acknowledge in his oral submissions that there were several elements. I simply do not accept the submission that there is one controversy. In dealing with the respondent’s application, the statutory scheme is the starting point.
    The authorities cited by the respondent are distinguishable from the factual circumstances and the legal framework applicable in this case. As the court raised with the respondent when he was making oral submissions, there are two relevant Acts of the West Australian Parliament: the Family Court Act; the Restraining Orders Act 1997 as amended; and, indeed, there’s a third Act which is the Commonwealth legislation which I will refer to as the Family Law Act. The Family Court is dealing with parenting issues.
    . . .
    To some extent the jurisdiction of the Magistrates Court with respect to family violence is concurrent with the jurisdiction of the Family Court with respect to family violence; however, the applicant is not required as a matter of law to seek a remedy in respect of family violence in the Family Court. In effect, applicants in the position of the applicant in this case have a discretion about whether they utilise the Magistrates Court to seek protection where there has been or is a risk of or likely to be family violence rather than seeking to have the Family Court exercise its jurisdiction in that regard.
    Now, I accept the submission that, in effect, was made by the respondent that he was not -that he did not seek orders in the Family Court based on abuse of process in the Magistrates Court as that is not a matter for the Family Court to determine; however, for all practical purposes, the application made by the respondent in this court was on all fours with the one made in the Family Court and, frankly, the respondent’s application in this court is without merit and a waste of time and resources.
    44 The application for a final order was adjourned pending the outcome of these proceedings.
    Principles applicable to anti-suit injunctions and stay applications
    45 An anti-suit injunction is a court order restraining a person from pursuing proceedings in another jurisdiction. They are usually categorised as follows: injunctions to protect the court’s procedures and processes, injunctions to restrain vexatious or oppressive proceedings in another jurisdiction (most usually a foreign jurisdiction) and injunctions in aid of legal or equitable rights.
    46 The applicable principles were stated by the High Court in CSR Ltd v Cigna Insurance Australia Ltd. The case involved parallel proceedings in New South Wales and New Jersey. The majority (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) began their analysis as follows:
    The question whether a dispute as to legal rights should be litigated in the courts of one country or those of another is one that permits of resolution, if resolution is possible, by one court staying its proceedings in favour of the other or by it granting an anti-suit injunction restraining a person amenable to its jurisdiction from commencing or continuing proceedings in that other country. The phrase ‘anti-suit injunction’ is now in common use and, at least in some instances, resembles an injunction granted to protect the legal or equitable rights of the plaintiff or a common injunction to protect the processes of the Chancery Court against interference by the processes of other courts. (footnotes omitted)
    47 The majority stated that although stay orders and anti‑suit injunctions are not governed by the same principles, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. Their Honours noted that the test which governs whether proceedings should be stayed in favour of proceedings of another country is that stated in Voth v Manildra Flour Mills Pty Ltd, that is, a stay is only to be granted if the Australian court is a clearly inappropriate forum.
    48 The majority observed the power to order a stay is an aspect of the inherent or implied power, which in the absence of some statutory provision to the same effect, every court must have power to prevent its own processes being used to bring about injustice.
    49 As to the power to grant anti-suit injunctions the majority stated:
    The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if ‘an estate is being administered . . . or a petition in bankruptcy has been presented … or winding up proceedings have been commenced … an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets’. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
    The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes. (italics added)
    50 The majority explained that in addition to the inherent power to protect its own processes a court may exercise its equitable jurisdiction to grant injunctions restraining the bringing of legal proceedings if such proceedings involve unconscionable conduct or the unconscientious exercise of legal rights. Within the scope of this equitable jurisdiction the majority drew a distinction between the exercise of the jurisdiction to restrain unconscionable conduct in aid of legal rights, for example restraining proceedings brought in breach of a contract not to sue and the exercise of the jurisdiction to restrain proceedings in another court which, according to the principles of equity, are vexatious or oppressive. The majority developed the analysis of this latter aspect of the equitable jurisdiction with references to ‘double litigation’ cases as follows:
    In Societe Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that ‘double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]’ does not amount to vexation or oppression.
    More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to the underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if ‘complete relief’ is available in the local proceedings.
    Given that, in England, the power to grant injunctions has for many years been conferred by statute, it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Societe Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity.
    Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. (footnotes omitted)
    51 Later paragraphs of the majority’s judgment addressed forum non conveniens considerations when there are proceedings pending in Australia and abroad. In that context the majority referred to Henry v Henry and drew a distinction between the factual situation in Henry v Henry and the factual situation in the appeal under consideration observing:
    The situation involved in the present case is not precisely the same as that considered in Henry v Henry. In that case, the parties were identical and the same subject matter, namely, the parties’ marital relationship, was involved in both proceedings. There is not the same correspondence of subject matter in this case. As already indicated, the NSW proceedings, but not the US proceedings, extend to the Australian asbestos claims as well as the American asbestos claims. More importantly, the US proceedings, but not the NSW proceedings, involve claims for damages against Cigna Corporation. And the parties accept that one of those claims, namely, the claim for statutory treble damages under the Sherman Act, cannot be pursued in the NSW proceedings.
    . . .
    In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are ‘productive of serious and unjustified trouble and harassment’ or ‘seriously and unfairly burdensome, prejudicial or damaging’.
    52 Henry v Henry was not an anti-suit injunction case but rather a case where parallel divorce proceedings had been commenced in Monaco and Australia and the wife applied to have the Australian proceedings stayed on grounds which included forum non conveniens. The majority (Dawson, Gaudron, McHugh and Gummow JJ) observed:
    Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co of New Zealand Ltd v The Caradale, Dixon J observed of that latter situation that ‘[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration’. From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
    It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
    It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of ‘seriously and unfairly burdensome, prejudicial or damaging’, or, vexatious, in the sense of ‘productive of serious and unjustified trouble and harassment’. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.
    . . .
    If separate proceedings are commenced between husband and wife in different countries, differences in procedure, in available remedies and in the substantive law with respect to marriage and divorce will ordinarily ensure that the proceedings are different in significant respects. However, the proceedings will ordinarily be concerned with the same controversy. And that will be so even if the initiating party is not the same and even if the proceedings seek inconsistent remedies or outcomes. The marital relationship lies at the heart of all proceedings between husband and wife with respect to their marital status, especially proceedings for the dissolution of marriage. In such cases, it is the marital relationship itself which is the subject of controversy. And if the marriage is still subsisting, disputes with respect to property, maintenance and the custody of children will ordinarily be but aspects of an underlying controversy with respect to the marital relationship. (italics added)
    53 In CSR Ltd v Cigna Insurance Australia Ltd the principles governing anti-suit injunctions were analysed in the context of parallel proceedings in a foreign jurisdiction and an Australian jurisdiction. As the second other party noted in her written outline of submissions in the anti-suit injunction application, the principles have been held to apply to an application to an Australian court to restrain proceedings in another local forum, though, the principles cannot be applied without qualification to the Family Court because it is a statutory court on which equitable jurisdiction has not been conferred. In Teo v Guan, the Full Court of the Family Court held that the Family Court of Western Australia had an implied power to make orders to prevent its processes from being abused and to protect the integrity of its processes once set in motion and the power did not depend on the court having equitable jurisdiction.
    The central issue
    54 Before turning to the grounds of the application it is convenient to address the central contention raised by the applicant. Though it is expressed in a variety of ways the essence of the contention is that each of the first and second respondents erred in law by failing to hold that it was prima facie vexatious and oppressive for the applicant to seek a restraining order from the Magistrates Court when it was open to her to have sought such an order from the Family Court in the parenting proceedings. The applicant placed particular reliance on statements made by Mason J (as his Honour then was) in Moore v Inglis, cited with approval by the majority in Henry v Henry, in the italicised passage of judgment reproduced at [52] to the effect that it was prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second and subsequent action if an action was already pending with respect to the matter in issue.
    55 The applicant placed considerable reliance on the identification by the majority in Henry v Henry of the ‘marital relationship’ as the subject matter of the controversy and the characterisation of disputes about property, maintenance, and the custody of children as ‘ordinarily [being] but aspects of an underlying controversy with respect to the marital relationship’.
    56 In my view, the applicant’s argument does not attach sufficient weight to the qualification inherent in the word ordinarily in the majority’s observation and elevates it to an inflexible statement of principle to be applied without regard to the relevant factual context. In this case the parenting proceedings and the restraining order proceedings should not be characterised as separate proceedings with respect to ‘the matter in issue’ or ‘the identical issue or same controversy’ (to use the language of the majority in Henry v Henry). My reasons for this view are as follows.
    57 First, the central issue in the parenting proceedings was what parenting orders were in the best interests of the children, s 60CA of the Family Law Act as determined by reference to the considerations in s 60CC of the Family Law Act.
    58 Second, the central issue in the restraining order proceedings was whether the first other party had experienced family violence or was at risk of family violence committed by the applicant. The Restraining Orders Act does not deal with parenting orders. The object of applications under the Restraining Orders Act for family violence restraining orders is to ensure the safety of persons who have experienced or are at the risk of family violence, and this is reflected in the principles and provisions governing the making of such orders, see s 10B(1)(a), s 10D(1), s 10F(1)(a) and s 10G(1). A family relationship under the Restraining Orders Act is a concept that is wider than a ‘marital relationship’. The definition of ‘family relationship’ in the Restraining Orders Act includes the relationship between two persons who were but are no longer married to each other.
    59 Third, the first other party sought different relief in the restraining order proceedings from that sought by her in the parenting proceedings. In the parenting proceedings the relief sought by the first other party was limited to parenting orders. In the restraining order proceedings the relief sought by the first other party was limited to a family violence restraining order. There was no overlap in the relief. Further, in response to the applicant’s concerns to the effect the interim order compromised his ability to maintain a relationship with the children, the first other party made it clear in her evidence in the anti-suit injunction proceedings that her concern was not to discourage the children from having a relationship with the applicant but to restrain him from ‘using third parties, systems and agencies to disparage [her], harass [her] and to perpetuate his unfounded allegations about [her] mental health’.
    60 Fourth, having regard to the factual findings contained in the first respondent’s judgment and the evidence relied on by the first other party in support of the interim order application, it is clear there was an overlap in the evidence adduced in the two proceedings but an overlap in the evidence adduced in separate proceedings is not sufficient to sustain the proposition that the proceedings are with respect to the same controversy.
    61 It follows from both from this analysis and from what was said in CSR Ltd v Cigna Insurance Australia Ltd about the difference in the principles governing anti-suit injunctions and stay applications that the first respondent was not required by the authority of Henry v Henry to deal with the anti-suit injunction application on the basis that the restraining order proceedings in the Magistrates Court were prima facie vexatious and oppressive as contended by the applicant.
    Grounds of the application
    Ground 1
    62 The first ground is as follows:
    The First Respondent committed jurisdictional error by failing or refusing, without explanation, to follow authority of the High Court and other Australian appeal courts binding on him (unless, in the latter case, it was submitted to him, which it was not, that he could choose not to follow the relevant latter authority if satisfied that it was ‘plainly wrong’, which he did not find, and which it was not open to him to find), including, in particular, authority to which the Applicant in his submissions had expressly referred and quoted to him, to the effect that he was required to consider and determine the Applicant’s applications to the Family Court as follows:
    a. the Applicant and the First Other Party were involved in a single ‘controversy with respect to [their] marital relationship’ that, relevantly, had two primary limbs, as follows:
    i. who should have parental responsibility?
    ii. should any restraining orders be made, and if so, what restraining orders?
    b. the issue raised by the Applicant’s applications was whether, in all the relevant circumstances, including the written laws and case law referred to above, the Magistrates Court was a ‘clearly inappropriate forum’ for the commencement and prosecution of the specific application the First Other Party had made to that court, with the consequence that the First Other Party’s proceedings against the Applicant in that court were vexatious and oppressive to him;
    c. the main starting point for considering that issue, according to binding High Court authority the Applicant cited and quoted to him, was that:
    ‘It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue.’
    d. a further starting point was that the existence of proceedings in two courts in the one country, or of two proceedings in two divisions of the one court, is considered prima facie vexatious, and the court will generally, as of course, put the plaintiff to his or her election and stay one of the proceedings, or it may stay the proceedings which it considers to be inappropriate;
    e. the prima facie starting point was clearly not displaced, as:
    i even before the First Other Party commenced the Magistrates Court proceedings, the Family Court proceedings had progressed very substantially, over more than six years, to a trial in which judgment was reserved;
    ii. in 1997, after the High Court had created its binding authority referred to above, State Parliament had enacted the Restraining Orders Act, section 63(2), specifically to confer jurisdiction on the Family Court, inter alia, to grant a restraining order to a party to a single ‘controversy with respect to [a] marital relationship’ before that court that involved both an issue as to parental responsibility and an issue as to whether a restraining order against a party to that single controversy should be granted;
    iii. consequently, the Family Court had jurisdiction to resolve the whole of the ‘controversy with respect to [the Applicant’s and the First Other Party’s] marital relationship’, whereas the Magistrates Court did not have jurisdiction to resolve the whole of that controversy;
    iv. in any event, the Other Parties (including the Second Other Party as Independent Childrens Lawyer, the Fourth Other Party as counsel for the First Other Party, and the Fifth Other Party as counsel for the Second Other Party, and the Third Other Party as funder of the remaining Other Parties and seeker of costs against the Applicant) had not suggested that there was any matter that displaced the prima facie starting point, but, rather, had submitted, in effect, that the First Respondent should refuse to follow the case law binding on him, dismiss the Applicant’s application on that basis, and order him to pay costs to the Third Other Party;
    f. there had been no suggestion by the First Other Party that she had any intention of voluntarily discontinuing or pausing her claim in the parenting proceedings in the Family Court, with the consequence that her simultaneous concurrent claims against the Applicant, including her claim in the prima facie vexatious and oppressive proceedings in the Magistrates Court, would both continue unless the Family Court granted the Applicant an anti-suit injunction or the Magistrates Court cancelled the interim order in the proceedings in that court and stayed those proceedings;
    g. there had been no suggestion by any of the Other Parties that there was any extraordinary circumstance that should lead to, or might justify, a conclusion that the injunction the Applicant was seeking should be refused even if or though the prima facie starting point was not displaced.
    Ground 1 disposition
    63 Ground 1 is not established for the following reasons.
    64 First, for the reasons given between [57] and [61] above the parenting proceedings and the restraining order proceedings were not proceedings with respect to the same controversy. That being so, and as already stated, the contention that the first respondent failed or refused to follow binding authority is without merit.
    65 Second, the clearly inappropriate forum test was applied in Henry v Henry because the High Court was concerned with an application for a stay. As the High Court stated in CSR Ltd v Cigna Insurance Australia Ltd, and as already noted, the principles governing anti‑suit injunction applications are not the same as those governing stay applications. Thus, the principles stated in Henry v Henry did not govern the application before the first respondent in any event.
    66 Third, the first respondent’s reasoning for refusing to grant an anti-suit injunction was consistent with the principles stated in CSR Ltd v Cigna Insurance Australia Ltd. It is clear from the first respondent’s reasons that his Honour was guided by the principle that an anti-suit injunction should be granted when necessary for the protection of the court’s own proceedings or processes, in other words when the administration of justice so demands. It is apparent from the concluding paragraph of his Honour’s reasons addressing the anti‑suit injunction:
    Given the circumstances just outlined, the Court does not accept the father’s submission that the mother applying for and obtaining an interim Family Violence Restraining Order in the Magistrates Court compromises the integrity of this Court’s processes or is otherwise oppressive, vexatious or an abuse of process.
    that his Honour was focussed on whether an injunction was necessary to protect the integrity of the parenting proceedings from being undermined by the restraining order proceedings. Further, the reference to ‘otherwise oppressive, vexatious or an abuse of process’ is consistent with the first respondent approaching the application in the manner described in CSR Ltd v Cigna Insurance Australia Ltd as one concerned with two proceedings involving different issues arising out of the same factual substratum.
    67 Fourth, even if it were assumed in the applicant’s favour that the Magistrates Court proceedings were prima facie vexatious and oppressive, it is apparent from the passage of the first respondent’s reasons quoted in the preceding paragraph that the first respondent did not accept that the Magistrates Court proceedings were oppressive or vexatious, and that finding was based on matters enumerated by his Honour in the reasons. Put another way, whatever the prima facie position, after considering the relevant circumstances, the first respondent concluded the Magistrates Court proceedings were not vexatious and oppressive.
    68 Fifth, the focus in judicial review is on jurisdictional errors. The authorities make it plain that an error of law made by a court within jurisdiction is not a jurisdictional error. As explained by Leeming JA in Quinn v Commonwealth Director of Public Prosecutions:
    It is important to bear steadily in mind that a court may be, and very commonly is, authorised to decide questions of law wrongly, while bodies which are not courts are ordinarily not authorised to decide questions of law wrongly. This distinction has a sharp impact on the identification of jurisdictional error. A body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision. On the other hand, a court which decides a question of law wrongly will ordinarily not thereby fall into jurisdictional error.
    69 In his submissions the applicant relied on dicta to the effect that the categories of jurisdictional error are not closed. He contended the error he alleged was made by the first respondent was a jurisdictional error on one or more of the following bases:
    (a) The first respondent had departed from the required consideration of the issues. The applicant supported his contentions under this heading by referring to the decision of the Full Court of the Federal Court in CZA19 v Federal Circuit Court of Australia.
    (b) The first respondent committed jurisdictional error by refusing to follow binding High Court precedent in dealing with the anti‑suit injunction application and thereby challenged the rule of law.
    (c) The applicant did not have a hearing in accordance with law because the first respondent heard and determined an application the applicant had not made and failed to consider the application the applicant had made.
    (d) Any error of law leading to a continuation of an abuse of process is jurisdictional.
    The first respondent did not depart from the required consideration of the issues
    70 In CZA19 the Full Court of the Federal Court (Allsop CJ, Markovic and Colvin JJ) considered whether a judge of the Federal Circuit Court had committed a jurisdictional error when dismissing an application for an extension of time within which to file an application to review a decision of the Administrative Appeals Tribunal under s 477(2) of the Migration Act 1958 (Cth). When discussing the nature of jurisdictional error the court said:
    Significantly, the extent of the authority of a Federal Circuit Court judge is not established by a description of the kind of matters that may be brought before the Court by reference to their subject matter. Rather, its original jurisdiction is confined to that which is vested in the Court by laws made by Parliament by express provision: s 10(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and by any necessary implication provided for by s 10(1)(b). As a result, the extent of the authority of a judge of the Federal Circuit Court is a question of statutory construction. In the present case, the authority of the Federal Circuit Court judge was to extend the time within which to undertake a review where ‘it is necessary in the interests of the administration of justice’ for such an order to be made.
    Therefore, although the authority of the Federal Circuit Court judge was invoked when an application was made seeking an extension of time, the jurisdiction of the Federal Circuit Court was confined by the terms of the statutory provision conferring its jurisdiction. In consequence, an error by the Federal Circuit Court judge as to the scope of such a provision is different to an error as to the law to be applied in the course of the exercise of judicial authority. As s 477(2) confers jurisdiction, it was not for the Federal Circuit Court judge finally to adjudicate on the limits of the Federal Circuit Court’s authority on the application. If the decision that was made was guided by a misunderstanding as to the nature and extent of the jurisdiction conferred by s 477(2) then that error could be jurisdictional. It would be jurisdictional if it caused the Federal Circuit Court judge to extend time in circumstances that were not authorised by the provision. It would be jurisdictional if it caused the Federal Circuit Court judge to deny the existence of any authority to extend time in circumstances where there was such authority. It would be jurisdictional if it caused the Federal Circuit Court judge to undertake a consideration of a kind that departed from the nature of the consideration that was required. It would be jurisdictional if the Federal Circuit Court judge concluded that it would be in the interests of justice to extend time, but nevertheless did not do so. (italics added)
    71 In CZA19 the court held that the Federal Circuit Court judge had so fundamentally misunderstood the nature and character of the application that it should be concluded that he was not dealing with the matter as placed before the court. This was because the Federal Circuit Court judge thought he was dealing with an oral application for a 34 day extension of time when the application had been made in writing and was for an extension of four days.
    72 The applicant contended the first respondent committed a jurisdictional error of the nature described in the italicised passage of the judgment in CZA19 in [70] above because, so the applicant contended, the first respondent refused to follow ‘binding applicable principles’ set out in Henry v Henry when considering the anti-suit injunction application. I do not accept the applicant’s contention. Putting to one side the conclusion I have already expressed that no such error was made, and assuming for the sake of argument the existence of the error of law asserted by the applicant, it was not a jurisdictional error because the first respondent did not deny the existence of the implied power to grant an anti-suit injunction, nor, did his Honour undertake a consideration of a kind that departed from the nature of the consideration that was required in the sense contemplated by the observations in CZA19 relied on by the applicant. In other words, the first respondent neither exceeded nor failed to exercise his judicial authority to decide the application.
    The first respondent did not refuse to follow binding High Court precedent and thus challenge the rule of law
    73 Again, assuming in the applicant’s favour that the first respondent made the error for which he contends, there was no refusal to follow binding High Court precedent that challenged the rule of law. At best from the applicant’s perspective, there was an error of law made within jurisdiction.
    The applicant did have a hearing in accordance with law
    74 The applicant contended the following passage in the first respondent’s reasons misrepresented his contentions:
    The question posed by the father is based upon the incorrect premise that the mother should have made this application at trial. The mother was under no obligation to make this application at trial. The trial properly focused on identifying the form and content of parenting and other orders to be made, pursuant to Part VII of the Family Law Act 1975 (‘the Act’), which were in the best interests of the children. (italics added)
    
    75 The applicant developed his contention as follows:
    The problem with this claim is that the Applicant was not contending that the First Other Party had an obligation to apply to the Family Court at any time for a restraining order. Rather, his contention was a very different one, namely that the First Other Party should have made that application to the Family Court, at trial.
    76 In this court the applicant contended:
    True it is that it is not an error of law for a judicial officer, faced with an application made on a particular basis, to consider and uphold the application on a different basis, subject of course to procedural fairness to any opposing party. However, that is not what happened in the present case. Rather, both Respondents simply did not deal with the relevant application, and dismissed it on the basis of a rejection of a (non) contention that the Applicant had not raised, on which he was not relying, and with which he does not agree.
    77 The flaw in the applicant’s contention is that the passage in the first respondent’s reasons about which he complains responds to the substance of the contention he developed in support of his application. As is apparent from the extracts of the submissions made by the applicant to the first respondent referred to at [35], [36] and [37] the applicant contended the first other party could and should have applied for a restraining order in the parenting proceedings. ‘Should’ may indicate obligation or advisability. Objectively and read in context, the applicant was using ‘should’ to connote that if the first other party wanted a restraining order she was obliged or required to apply for it in the parenting proceedings.
    78 I reject the applicant’s contention the first respondent did not deal with the application made by him.
    The alleged error of law did not lead to a continuation of an abuse of process and thus did not constitute a jurisdictional error
    79 In addition to the applicant’s reliance on the court’s supervisory jurisdiction the applicant relied on the court’s jurisdiction to protect parties from abuses of the processes of the State courts and tribunals of limited jurisdiction. The applicant relied on the decisions of Herron v McGregor and Walton v Gardiner to establish the existence of the protective jurisdiction.
    80 The applicant contended:
    On that basis [that is the court has a protective jurisdiction to prevent abuse of the processes of State courts and tribunals], the Applicant also submits that this Court, in the exercise of its corrective supervisory jurisdiction, should hold that any error of law that has had the effect of causing a State court of limited jurisdiction to fail to prevent an abuse of process of a State court of limited jurisdiction (including an abuse of process of a second State court of limited jurisdiction that the first such court had jurisdiction to prevent by granting an anti-suit injunction), is properly to be characterised as a jurisdictional error.
    81 Even if the first respondent made the error of law for which the applicant contended, in my judgment the error did not permit the continuation of any abuse of process. I reject the applicant’s reliance on the court’s protective jurisdiction as a basis for elevating the alleged error of law into an error of a jurisdictional nature.
    82 This is a convenient point to refer to the applicant’s more general reliance on what he described as the court’s ‘protective jurisdiction’ to distinguish it from its ‘corrective jurisdiction’. In Judicial Review of Administrative Action and Government Liability, the jurisdiction relied on by the applicant was described as follows:
    There is a line of cases in which it is sometimes difficult to tell whether the superior court is considering an application for judicial review on the ground of an actual or threatened abuse of the process of an inferior court or tribunal, or an application for an order in the exercise of its more general jurisdiction to supervise the administration of justice in lower courts and tribunals. The more recent cases seem to favour the latter rationale. The criteria for granting superior court orders for the prevention of an abuse of the ‘process’ of an inferior court or tribunal might occasionally overlap judicial review’s criteria, but not always.
    In whatever way the jurisdiction the applicant seeks to invoke is characterised, it is not engaged by the circumstances of this case because the restraining order proceedings were not an abuse of process for the reasons given by the first respondent.
    Ground 2
    83 The second ground is as follows:
    Further or alternatively, it is to be inferred, from one or more of the following matters, that the First Respondent committed jurisdictional error in making his decision:
    a. in his reasons for decision published on 10 November 2023, the First Respondent clearly misstated the Applicant’s argument in support of his application (which, in detail, was as set out in sub-grounds (a) to (c) and (e) above), and indicated that he had wrongly taken into account the submissions made by the Other Parties in response (which, in each case, were to the effect that the First Respondent should refuse to follow the case law binding on him, dismiss the Applicant’s application on that basis, and order him to pay costs to the Third Other Party);
    b. even if, as the First Respondent asserted in his reasons for decision published on 10 November 2023, ‘… the Magistrates Court has jurisdiction to determine the application and is the usual Court in which such applications are brought …’, it is to be inferred from that assertion that the First Respondent had chosen not to apply the principle he was bound to apply, but, rather, to apply an alleged principle that erroneously:
    i. was focused on an irrelevant matter, namely whether the court in which the second proceedings had been commenced had jurisdiction (which will always be the case in applications of the type the Applicant was making, namely an application for an anti-suit injunction on ‘clearly inappropriate forum’ rather than ‘no jurisdiction’ grounds);
    ii. was and is redolent of the Spiliada principle that he was bound by High Court authority not to apply;
    iii. was and is redolent of some of the reasoning of the Full Court of the Family Court of Australia in the decision that the High Court overturned in 1996 as it was creating the binding authority quoted above;
    iv. was also focused on a non-specific matter relating to applications for restraining orders generally, rather than the specific circumstances of, and other specific matters relevant to, the First Other Party’s specific application to the Magistrates Court (on which specifics he was bound to focus).
    c. the First Respondent wrongly and/or misleadingly stated in those reasons for decision that ‘… some of the material circumstances [the First Other Party] deposes to, which give rise to [her] application [to the Magistrates Court, occurred after the trial was adjourned,’ when:
    i. on the Applicant’s affidavit evidence, on which the Other Parties had declined to cross examine the Applicant, all of those material circumstances had actually occurred, and had been ascertainable by the First Other Party in the exercise of reasonable diligence, before the trial started; and
    ii. on the First Other Party’s own evidence, the First Other Party had been aware of much of the material substance of those matters prior to the trial, and had consciously chosen, for reasons she explained, not to raise any of those matters at the trial.
    84 Ground 2(a) repeats the substance of the applicant’s argument to the effect that the first respondent did not deal with his application but misunderstood the application and dealt with a different application in support of which the applicant invoked the reasoning in CZA19. I have explained why I do not accept that the first respondent misunderstood or misstated the contentions advanced by the applicant in support of the anti‑suit injunction. Ground 2(a) is not established.
    85 Ground 2(b) repeats the substance of the applicant’s argument to the effect that the first respondent erred by not following Henry v Henry and I have explained why I do not accept the first respondent’s approach to the application did not involve any error.
    86 Ground 2(c) does not raise an error of law but alleges the first respondent ‘wrongly and/or misleadingly’ misstated the evidence. The applicant’s contentions focussed on his evidence to the effect that his complaints about the first other party and persons who had interacted with her were made before the trial of the parenting proceedings. The evidence to which the first respondent was referring in his judgment, however, was the evidence that the first other party only became aware of the number of complaints and that complaints were still under investigation in April and May 2023. Those matters were ‘material circumstances’ to which the first other party had deposed. The first respondent did not make any error as alleged in ground 2(c).
    87 Ground 2 does not establish any jurisdictional error.
    Ground 3
    88 The third ground is as follows:
    The Second Respondent committed jurisdictional error by choosing, in essence, without adequate explanation, to follow the jurisdictionally erroneous approach of the First Respondent to the issue raised by the Applicant’s application before her (namely whether the Magistrates Court was a ‘clearly inappropriate forum’ for the commencement and prosecution of the application the First Other Party had made to that court, with the consequence that the First Other Party’s proceedings against the Applicant in that court were vexatious and oppressive to him (and also an abuse of the Magistrates Court’s process)), when, regardless of the approach that had been taken by the First Respondent to that issue, she was bound by higher authority to consider and determine the Applicant’s application to the Magistrates Court in the manner set out in sub-grounds 1 (a) to (g) above.
    89 This ground repeats the substance of the matters relied on by the applicant in support of ground 1. The critical feature of the second respondent’s reasoning for dismissing the stay application was she did not accept the applicant’s submission that the proceedings in the Magistrates Court and those in the Family Court involved one controversy. For the reasons I have already given her Honour was correct to reject this submission.
    90 Ground 3 does not establish a jurisdictional error and should be dismissed.
    Ground 4
    91 The fourth ground is as follows:
    Further, or alternatively especially if one or more of the errors complained of in grounds 1 and/or 2 and/or 3 is or are (an) error(s) of law but, which is denied, not (a) jurisdictional error(s), and/or if, which is denied, there is some other reason to refuse the Applicant prerogative relief and/or an order under the Magistrates Court Act, section 36, then, on the basis that one or more error(s) of law has or have been committed, the Court should grant the Applicant relief in the form of an appropriate declaration and/or injunction as against the appropriate party or parties.
    92 In my judgment neither the first respondent nor the second respondent made any errors of law and accordingly ground 4 must be dismissed.
    Ground 5
    93 The fifth ground is as follows:
    Further or alternatively, the conduct of each of the Respondents, and that of each of the Second, Fourth and Fifth Other Parties, towards the Applicant in connection with his unsuccessful attempts to obtain protection from the vexatious and oppressive claim pursued by the First Other Party 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 Applicant, including on the grounds that that conduct was contrary to the paramount interests of the Applicant’s children that he not be exposed to such a claim.
    94 There is no merit in this ground. No error was made by the 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 respondent or against the second, fourth or fifth other parties. 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.
    95 The applicant 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 applicant 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 second, fourth and fifth other parties have been required to instruct counsel to protect those reputations.
    96 These observations may be made about the relief sought in respect of the first and second respondents:
    (a) The first and second respondents were each acting in a judicial capacity and not as legal practitioners.
    (b) In respect of judicial decisions and the reasoning employed to arrive at those decisions, the processes of appeal and judicial review administered in accordance with established principle are the mechanisms by which accountability is ensured.
    (c) Any attempt to ‘discipline’ judges in the manner proposed by the applicant strikes at the heart of the concept of judicial independence in a manner similar to a civil suit against a judicial officer. In this respect it is apposite to repeat what was said very recently by the plurality in the Queensland v Stradford:
    Although there are differences of significance between inferior courts and superior courts, there is no justification for differentiating between the scope of the immunity from civil suit afforded to judges of all courts. This is so because the purpose of the immunity is the same for judges of all courts. That purpose is to facilitate the independent performance of the judicial function free from the spectre of litigation, as well as to enhance the finality of judgments quelling legal controversies. The necessity for judicial independence, and the interests of finality of judgments, apply to the exercise of the judicial function by judges of both inferior courts and superior courts. Judicial immunity does not exist for the benefit of individual judges.
    Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer. (footnotes omitted)
    (d) For the sake of completeness only, it may be noted that both the Family Court Act 1997 (WA) and the Magistrates Court Act 2004 (WA) contain provisions for the discipline and removal from office of judges of the Family Court and the Magistrates Court respectively.
    97 As to the position of the second, fourth and fifth other parties:
    (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 second, fourth and fifth other parties, there was simply no basis for the criticisms of their professional conduct made by the applicant.
    The third other party
    98 In the application no relief is sought against the third other party. The third other party is referred to in the part of the application which describes the decision or conduct to be reviewed as follows:
    [the first respondent] dismissed a related application by the Applicant for an order that the First Other Party pay the Applicant’s costs of his applications to the Family Court, and refused to dismiss counter‑applications by the First and Second Other Parties for an order, in substance, that the Applicant pay costs to the Third Other Party, which had (it is submitted, wrongly and in a manner inconsistent with its obligation to be a model litigant) funded opposition by the First and Second Other Parties to the Applicant’s applications to the Family Court. (italics added)
    99 The outline of written submissions signed by the second other party in opposition to the anti-suit injunction foreshadowed an application for costs against the applicant. The submissions were as follows:
27. The [Independent Children’s Lawyer] seeks the application of the Father be dismissed. The [Independent Children’s Lawyer] has instructions from the Legal Aid Commission to pursue costs as against the Father in relation to the Father’s application if unsuccessful.
28. Legal Aid have approved funding of 8 hours for counsel preparation and attendance at $209 per hour plus GST. The total sought by way of costs of the Independent Children’s Lawyer is $1,839.20.
29. This hourly rate is below scale and having regard to the volume of material filed by the Father which has had to be considered, entirely reasonable. The [Independent Children’s Lawyer] intends to make further submissions in relation to the issue of costs at the hearing.
    100 On the dismissal of the applicant’s anti-suit injunction application the first respondent did not make any order for costs in favour of the second other party or the fifth other party. The final orders made by the first respondent at the conclusion of the parenting proceedings included an order that all previous proceedings be discharged and an order that any application for costs (including costs reserved) must be consolidated in a Form 2 Application with a supporting affidavit and filed and served within 28 days. No application for a costs order was made by the second or fifth other party for the purposes of recouping funding provided by the third other party.
    101 In the concluding paragraphs of applicant’s written outline of submissions on the application to this court, the applicant submitted that this court should make a costs order against the third other party on the basis that it funded ‘the inappropriate opposition’ to the anti-suit injunction application. The Independent Children’s Lawyer’s opposition to the anti-suit injunction application was not inappropriate. There is no basis for any criticism of the third other party let alone the making of any costs orders against it.
    Conclusion
    102 The application will be dismissed and I will hear the parties in relation to costs.

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

CD
Associate to the Honourable Justice Tottle

26 FEBRUARY 2025