PENFOLD -v- WATSON [2026] WASC 269

[2026] WASC 269 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PENFOLD -v- WATSON [2026] WASC 269 CORAM : LUNDBERG J HEARD : 2 JULY 2026 DELIVERED : 2 JULY 2026 FILE NO/S : CIV 1662 of 2026 BETWEEN : JAMES COYLE PENFOLD Applicant AND MAGISTRATE HEIDI WATSON Respondent PAUL WHITE First Other Party ADAM WRIGHT Second Other Party MAGISTRATE RUTH DINEEN Third Other Party Catchwords: Criminal law - Application treated as brought pursuant to s 36 of the Magistrates Court Act 2004 (WA) for review orders - Applicant aggrieved by interlocutory determinations made by Magistrates in pending criminal proceedings - Applications made to adjourn trial - Applications made by -- 1 of 26 -- [2026] WASC 269 Page 2 prosecution to call witnesses by video link - Application made by defendant to give evidence at trial by video link - No basis for relief sought - Review order refused - Principles as to interference by appellant court in practice and procedure of lower court - Importance of avoiding the fragmentation of criminal proceedings - Whether any utility in relief sought - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA), pt 2 Criminal Procedure Act 2004 (WA), s 88, 141 Evidence Act 1906 (WA), s 121 Magistrates Court Act 2004 (WA), s 35, s 36 Rules of the Supreme Court 1971 (WA), O 56, O 56A Result: Application dismissed. Category: B Representation: Counsel: Applicant : In Person Respondent : No Appearance First Other Party : J Kirke Second Other Party : J Kirke Third Other Party : No Appearance Solicitors: Applicant : In Person Respondent : State Solicitor's Office First Other Party : State Solicitor's Office Second Other Party : State Solicitor's Office Third Other Party : State Solicitor's Office Case(s) referred to in decision(s): Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 -- 2 of 26 -- [2026] WASC 269 Page 3 Bajaj v Magistrate Trevor Darge [2021] WASCA 218 Bennett v Councillor [2001] WASCA 342 Blum v Boothman [2014] WASC 452 Courtney (a pseudonyum) v The State of Western Australia [2026] WASCA 86 Director of Public Prosecutions (WA) v Peters [2010] WASC 139; (2010) 55 MVR 443 Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 263 CLR 120 Greer (1992) 62 A Crim R 442 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 Le v Magistrate Barbara Lane [2014] WASC 494 Lyster v Kemp [2010] WASC 47 Myers v Myers [1969] WAR 19 Pallett v Paul [2007] WASC 290 Penfold v Director of Public Prosecutions [2026] WASC 172 R v Elliott [1996] HCA 21; (1996) 185 CLR 250 R v Iorlano [1983] HCA 43; (1983) 151 CLR 678 Re Fortescue Metals Group Ltd; Ex Parte Fortescue Metals Group Ltd [2010] WASC 88 Re Her Honour Magistrate Woods; Ex parte Golestani [2017] WASC 86 Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318 Sankey v Whitlam (1978) 142 CLR 1 Yates v Wilson [1989] HCA 68;(1989) 168 CLR 338 -- 3 of 26 -- [2026] WASC 269 Page 4 Table of Contents Introduction ................................................................................................................................ 5 The parties .................................................................................................................................. 6 The proceedings in the Magistrates Court .................................................................................. 7 The procedural determinations challenged by the applicant ...................................................... 9 Legislative framework and relevant principles .......................................................................... 9 Sections 35 and 36 of the MCA ............................................................................................. 9 Fragmentation of criminal proceedings ................................................................................ 13 Appellate review of matters of practice and procedure ........................................................ 15 Disposition ................................................................................................................................ 16 Grounds 1, 2 and 3 – the proceedings on 5 January 2026 .................................................... 16 Ground 4 – the applicant's video link application ................................................................ 19 Grounds 5 and 6 – the adjournment on 11 May 2026 .......................................................... 20 Conclusion and orders .............................................................................................................. 24 -- 4 of 26 -- [2026] WASC 269 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 On 20 May 2026, the applicant filed an application for judicial review pursuant to O 56 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). The applicant filed a short affidavit in support of the application, sworn on 3 June 2026. The applicant, Mr James Penfold, is not legally represented. 2 It was apparent from the materials filed by the applicant that he was aggrieved by certain interlocutory determinations which had been made in the course of managing pending criminal proceedings in the Magistrates Court sitting in Exmouth and Carnarvon, in which he is the defendant.1 3 The criminal charges allege the applicant engaged in disorderly conduct contrary to s 74A of the Criminal Code (WA) (Criminal Code), and was armed with a dangerous instrument in circumstances likely to cause fear, contrary to s 68(1) of the Criminal Code. These charges are listed for a trial which will commence on 16 September 2026, having initially been listed for a trial on 14 January 2026. 4 The applicant's initial affidavit provided little context for the application. I accordingly ordered, at the first directions hearing on 11 June 2026, that the applicant file a 'statement setting out the decisions of the Magistrates Court which are being challenged, the basis on which those decisions are challenged and the relief which is sought', together with any further affidavits. 5 It also became apparent at the directions hearing that the application, if it was to be brought at all, was more properly one which ought be brought pursuant to O 56A RSC. That provision deals with the procedure applicable to applications to this court for review orders under s 36 of the Magistrates Court Act 2004 (WA) (MCA). Ordinarily, such applications must be brought ex parte in the first instance, seeking 'an order that requires the Court officer, and any person who will be affected by the Court officer's act, order or direction that is in question, to satisfy the Supreme Court at a hearing that the act, 1 Exmouth charges: EX 84/2025 and EX 85/2025. -- 5 of 26 -- [2026] WASC 269 LUNDBERG J Page 6 order or direction should or should not be done or made or set aside, as the case requires'.2 6 The applicant's further statement, which was filed on 18 June 2026, expressly referred to O 56A RSC, and sought relief pursuant to s 36(3) of the MCA. That material provided some further context for the applicant's grievances. The further statement also narrowed the matters in respect of which the applicant sought relief. The applicant then filed a further affidavit on 18 June 2026 in support of his application. 7 Although there has been a procedural non-compliance on the part of the applicant, in that he initially brought the application pursuant to O 56 RSC, that should not stand in the way of determining the application. It is generally accepted that the court should approach matters involving litigants in person with a degree of flexibility beyond that which would be applied were the person to be legally represented, particularly in a criminal setting. The solicitors for the first and second other parties accepted as much, and consented to the application being treated as one for review orders under s 36 of the MCA.3 8 It is appropriate, therefore, that allowance to be given to the appellant in the conduct of the matter, and I have adopted a flexible approach to the applicant's procedural non-compliance given he is not legally represented. The parties 9 Before I address the applicant's grievance, I should clarify the role of the parties. 10 The first respondent and the third other party to the proceeding are the Magistrates in respect of which the applicant raises grievances. Those parties have indicated, quite properly, and consistent with usual practice that they do not intend to take part in the proceedings and will accept any order made by the court other than as to costs. 11 The first and second other parties are police officers.4 They are represented in the proceeding by the State Solicitor's Office. Through that office, they have indicated that they neither consent nor oppose the making of a review order, given they would not ordinarily be party to 2 RSC, O 56A r 2(1)(a) and r 2(2). 3 Submissions filed by the State Solicitor's Office dated 30 June 2026 (SSO Submissions) [3]. 4 I will refer to these parties collectively as the prosecution, for ease of reference. -- 6 of 26 -- [2026] WASC 269 LUNDBERG J Page 7 an application under s 36 of the MCA prior to the making of a review order.5 12 To assist the court, the first and second other parties have filed an affidavit which provides copies of the materials from the proceedings in the Magistrates Court, including the prosecution notices and transcripts,6 and provides a chronological overview of the matters.7 An outline of submissions has also been filed on their behalf. 13 The material from the first and second other parties was filed two to three business days late. The applicant opposed any extension of time for the other parties to rely on this material. I will grant the necessary extension. The delay, which was foreshadowed by the solicitors on 25 June 2026, has been properly explained, was not lengthy, and has occasioned no substantial prejudice to the applicant. The material addressed by the SSO is not contentious, and the submissions have been of considerable assistance to the court. It is appropriate that the court receives this material, and the submissions, so that the application may be dealt with properly. The proceedings in the Magistrates Court 14 The charges against the applicant were initially listed for a trial on 14 January 2026, but that trial was vacated following an application by the prosecution to vacate the trial date, which was made to the court on 5 January 2026. The trial date was vacated by the First Magistrate8 and relisted for 13 May 2026. 15 The above application to adjourn was supported by an affidavit sworn by a police officer on 15 December 2025.9 The affidavit explained that the adjournment was sought to enable police witnesses to be available for the trial. 16 The prosecution then lodged applications for two witnesses to appear at the trial on 13 May 2026. The applications were lodged on 3 February 2026 and 19 February 2026, although the applicant in this proceeding disputes the dates of the first of these applications. These 5 SSO Submissions [4]. 6 Being the transcript of proceedings in the Magistrates Court on 5 January 2026, 17 February 2026, 18 March 2026, and 11 May 2026. 7 Affidavit of Cathrine Maree Hale affirmed 29 June 2026 (Hale Affidavit). 8 Being the first respondent. 9 Annexure B to the applicant's affidavit sworn 18 June 2026. -- 7 of 26 -- [2026] WASC 269 LUNDBERG J Page 8 applications were granted by the Second Magistrate10 on 17 February 2026 and 18 March 2026. 17 Next in the sequence of developments, on or around 15 April 2026, the applicant himself lodged an application to appear at the trial on 13 May 2026 by video link. This application was heard and refused by the Second Magistrate on 11 May 2026. Also on that date, the Second Magistrate ordered the trial date for 13 May 2026 be vacated. The applicant describes this as a 'fictionalised' application because he says he never applied for such an adjournment, rather it was suggested by the court. The applicant agreed to the adjournment but he says he was overwhelmed at the time and later (during the same hearing) sought to withdraw his consent to the adjournment. The charges were ultimately relisted to the current trial date, which is 16 September 2026. 18 The determination by the Second Magistrate to refuse the applicant leave to attend trial by video link is said by the applicant to be manifestly unfair, given the prosecution was granted leave for two of its witnesses to appear by video link. Those witnesses were a police officer and a medical practitioner. These are the determinations which were made on 17 February and 18 March 2026. 19 The last of these matters, that is the application to allow the medical practitioner to attend by video link, has been the subject of proceedings in this court, brought by the applicant. That proceeding was dismissed by Forrester J on 4 May 2026: Penfold v Director of Public Prosecutions.11 In summary, on 2 April 2026, the applicant lodged an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA) against the First Magistrate's decision to grant leave for a medical practitioner to give evidence by video link at trial. 20 Forrester J concluded that the appeal was not against a 'decision' as defined in s 6(1) CAA. Forrester J accordingly dismissed that appeal as incompetent by way of a provisional decision, which was served on the parties on 24 April 2026, and which became a final decision on 1 May 2026. 21 The outcome from the proceedings before her Honour appears to have led the applicant to pursue relief through an alternative pathway, pursuant to O 56 RSC. As noted above, that pathway does not assist the applicant. 10 Being the third other party. 11 Penfold v Director of Public Prosecutions [2026] WASC 172. -- 8 of 26 -- [2026] WASC 269 LUNDBERG J Page 9 The procedural determinations challenged by the applicant 22 The statement filed by the applicant on 18 June 2026 identifies six procedural determinations (or acts) which he wishes to challenge. The grounds of challenge may be summarised in the following terms: (1) Ground 1: A statement by the First Magistrate on 5 January 2026 that her Honour was not aware of the video link application made by the prosecution. (2) Ground 2: The decision of the First Magistrate to hear the adjournment application on 5 January 2026. (3) Ground 3: The decision of the First Magistrate to grant the adjournment application on 5 January 2026. (4) Ground 4: The decision of the Second Magistrate to refuse the applicant's video link application on 11 May 2026. (5) Ground 5: The decision of the Second Magistrate to hear the applicant's adjournment application on 11 May 2026. (6) Ground 6: The decision of the Second Magistrate to vacate and relist the trial on 13 May 2026 to 16 September 2026. 23 It will be immediately apparent that these decisions are the type of procedural decisions routinely made by Magistrates in criminal proceedings in the Magistrates Court, as part of the jurisdiction of those courts to manage such proceedings. Legislative framework and relevant principles 24 I should now set out the applicable legislative provisions and the principles of law I must apply in determining this matter. Sections 35 and 36 of the MCA 25 Section 35 of the MCA provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of, or directed to, a court officer. Instead, s 36 of the MCA establishes a process whereby a person aggrieved by certain conduct on the part of a court officer may challenge that conduct in this court. -- 9 of 26 -- [2026] WASC 269 LUNDBERG J Page 10 26 Section 36 of the MCA relevantly provides: 36. Supreme Court's powers to control Court (1) If a person is or would be aggrieved by one or more of the following — (a) the failure of a Court officer to do any act or make any order or direction — (i) on the ground that the officer is under a duty to do the act or make the order or direction; or (ii) on any ground that might have justified an order of mandamus; (b) an act, order or direction that a Court officer proposes to do or make — (i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or (ii) on any ground that might have justified an order of prohibition; (c) an act, order or direction done or made by a Court officer — (i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or (ii) on any ground that might have justified an order of certiorari, the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires. (2) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court. (3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not. -- 10 of 26 -- [2026] WASC 269 LUNDBERG J Page 11 (4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may — (a) order that the act, order or direction be or not be done or made or set aside, as the case requires; (b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari; (c) make any necessary consequential orders. (5) On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may — (a) if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly; (b) if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly. (6) When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4). 27 Seaward J (as her Honour then was) explained the procedure applicable to s 36 of the MCA in the following terms:12 Section 36 of the MC Act provides for an alternative statutory form of relief to the prerogative writs which are not available in relation to a decision of a Magistrate. The provisions provide for a two stage process whereby a person may apply ex parte under s 36(1) to the Supreme Court for an order requiring the court officer who made the decision (in this case the learned Magistrate) and any person who will be affected by the act, order or direction, to satisfy the Supreme Court at a later hearing that the act, order or direction made by the court officer should or should not be done or made or set aside, as the case requires. 28 At the first stage in the process, the court is empowered to make a 'review order' requiring the decision-maker to show cause if the 12 Re Magistrate Trevor Darge; Ex parte Snook [2023] WASC 386 [28]. -- 11 of 26 -- [2026] WASC 269 LUNDBERG J Page 12 material before the court demonstrates an arguable case in relation to a ground of jurisdictional error or a denial of natural justice. 29 The question is whether the material demonstrates that the case has reasonable prospects of success. Applications under s 36 are concerned only with the legality of decisions, and not the merits.13 30 The Court of Appeal has summarised the categories of jurisdictional error in relation to a decision of an inferior court (in addition to a denial of natural justice) in the following way:14 First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied ([...] a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case. 31 In essence, to fall within s 36(1) of the MCA, the error must be either a jurisdictional error, or an error of law on the face of the record. Further, it will be more difficult to demonstrate a jurisdictional error on the part of an inferior court than in the case of an administrative decision-maker.15 There is a final point which should be made here – namely that, even where the grounds for a review order have been established, the grant of a review order remains discretionary, which I have addressed further below at [35] to [45].16 32 I should pause to mention the operation of s 36(5) of the MCA, the provisions of which are engaged where the court considers the matter 13 Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [47] ‑ [54]. 14 Bajaj v Magistrate Trevor Darge [53]. 15 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [67] - [68]. 16 Blum v Boothman [2014] WASC 452 [18] - [19]. -- 12 of 26 -- [2026] WASC 269 LUNDBERG J Page 13 about which complaint is made ought be treated as an appeal under the CAA (see s 36(5)(a)) or an appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA) (see s 36(5)(b)). 33 As to s 36(5)(b) of the MCA, the matters which are challenged by the applicant are not caught by that provision. That provision authorises this court to remit certain applications to the District Court if they could have been progressed as appeals under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The present complaints concern proceedings in the criminal jurisdiction of the Magistrates Court. 34 As to s 36(5)(a) of the MCA, no appeal presently lies to this court in respect of the matters about which the applicant complains. Forrester J explained why that is so in her recent decision. I note that the regime in s 36 of the MCA is more typically engaged in civil proceedings, than in a criminal context, but the presence of s 36(5)(a) indicates that the regime is not inapplicable in the criminal setting. Indeed, the submissions filed by the prosecution accept there is nothing inherent in the terms of s 36 of the MCA that prohibits an application for a review order being sought for a decision made in the course of criminal proceedings.17 Fragmentation of criminal proceedings 35 The point just made, as to the application of s 36 of the MCA in a criminal setting, requires closer examination. As a general rule, it is submitted by the prosecution that the court should seek to avoid fragmenting criminal proceedings.18 That proposition must be accepted. So much may be said to follow from the High Court's decision in Sankey v Whitlam.19 In that matter, Gibbs ACJ remarked that, once criminal proceedings have begun 'they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order'.20 36 More recently, the High Court has said, in its unanimous decision in Gedeon v Commissioner of the New South Wales Crime 17 SSO Submissions [19]. 18 SSO Submissions [22]. 19 Sankey v Whitlam (1978) 142 CLR 1. 20 Sankey v Whitlam (26). -- 13 of 26 -- [2026] WASC 269 LUNDBERG J Page 14 Commission, that the fragmentation of the criminal process is to be 'actively discouraged'.21 37 Closer to home, this State's intermediate appellate court reiterated the concern as to fragmentation of criminal proceedings in its decision in Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development.22 Following references to the above statements from the High Court, the Court of Appeal stated:23 Similar observations as to the need to exercise the discretion to grant declaratory relief sparingly in relation to criminal proceedings were made by Ipp J (Malcolm CJ and Owen J agreeing) in Connell v Reynolds. In our view, the same considerations apply to the exercise of the court's discretion to grant relief under s 36(4) of the Magistrates Court Act in relation to pending criminal proceedings. It has been so held in many cases in the General Division of this court. (footnotes omitted) 38 These statements, of high authority, must be borne in mind by this court in approaching the present application for relief, which in essence seeks to disturb the course of pending criminal proceedings. Such matters are appropriate for the court to consider in exercising the discretion to make a review order, even where the grounds for such an order have been established by the applicant. 39 Without wishing to lessen the force of the foregoing statements, I accept, as the prosecution here has submitted, that there may be utility in considering interlocutory challenges through the s 36 regime where that could clarify an important point of law, or allow review of a decision that would not otherwise be available through the ordinary appeal process. One clear example of this can be seen in the decision of EM Heenan J in Director of Public Prosecutions (WA) v Peters.24 In that matter, his Honour concluded that the case before him, involving a question whether to commit 'either way charges' to the District Court, was 'one of those special occasions' in which this court ought give relief by way of review, even at an early stage of the criminal process. His 21 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 263 CLR 120 [23]. See further the decisions R v Iorlano [1983] HCA 43; (1983) 151 CLR 678; Yates v Wilson [1989] HCA 68;(1989) 168 CLR 338; and R v Elliott [1996] HCA 21; (1996) 185 CLR 250. 22 Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [2023] WASCA 36. 23 Emanuel Exports Pty Ltd v Department of Primary Industries and Regional Development [39] (Buss P, Mitchell JA and Beech JA). 24 Director of Public Prosecutions (WA) v Peters [2010] WASC 139; (2010) 55 MVR 443. -- 14 of 26 -- [2026] WASC 269 LUNDBERG J Page 15 Honour explained that the issue might have significant consequences if not addressed:25 Proceeding with a trial on indictment in respect of an offence which is either not indictable or which may only be tried on indictment if certain prior conditions are met, in the absence of satisfaction of those conditions, it is open to challenge because, if the trial were conducted without jurisdiction then, any ensuing conviction could be quashed 40 His Honour described the point of law in issue as being 'a point of obvious practical importance and controversy not merely just for this case'. His Honour was further fortified in his opinion that the issue should be addressed on review because:26 …the determination of this point could have no bearing upon the merits of the prosecution or its eventual outcome but did involve a question of the preservation of significant procedural rights as to the mode of trial or disposition of the charge for the first respondent and for the prosecution. 41 Other circumstances in which an application for a review order in ongoing criminal proceedings may be appropriate, naturally depending on all the circumstances, include the refusal a permanent stay application27 and the refusal of a recusal application on the basis of apprehended bias.28 Appellate review of matters of practice and procedure 42 Allied to the foregoing matters, there is a further consideration to be borne in mind, which applies generally to the grievances raised in this application. 43 Specifically, appellate courts will exercise particular caution in reviewing a decision which involves the exercise of discretion on a matter of practice and procedure. 44 In a civil context, in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc,29 the High Court adopted the following 25 Director of Public Prosecutions (WA) v Peters [11]. 26 Director of Public Prosecutions (WA) v Peters [12]. 27 Re Her Honour Magistrate Woods; Ex parte Golestani [2017] WASC 86 (noting that Allanson J declined to make the review order on the basis that the Magistrate had not exceeded her jurisdiction); and Re Fortescue Metals Group Ltd; Ex Parte Fortescue Metals Group Ltd [2010] WASC 88 (McKechnie J). 28 Le v Magistrate Barbara Lane [2014] WASC 494. 29 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177. -- 15 of 26 -- [2026] WASC 269 LUNDBERG J Page 16 statement of Jordan CJ in Re the Will of FB Gilbert (Dec),30 regarding the approach to interlocutory appeals: … I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal. 45 In the present matter, the applicant makes complaints about decisions by the court below to adjourn proceedings. The principles governing the review of the grant or refusal by a court in respect of an adjournment application, to which I will make mention below, are really a species of the general rule of restraint I have just mentioned. That is, the principles are a species of the broader restraint:31 …which appellate courts observe when asked to disturb the myriad of decisions of practice and procedure which must be made every day in every courtroom of this country. 46 With these principles in mind, I now turn to an analysis of the grounds raised by the applicant. Disposition Grounds 1, 2 and 3 – the proceedings on 5 January 2026 47 These grounds are primarily directed at the proceedings on 5 January 2026. 48 The applicant criticises the First Magistrate as to whether she was aware of the prosecution's video link application concerning police officer Gooderson. The applicant describes this as an abuse of process, and asserts that the video link application had been lodged on 15 December 2025. This date appears to be found in the top corner of the application, a copy of which is included in the Hale Affidavit.32 The applicant also relies on certain email correspondence from the court staff which confirms the earlier date of the application. 30 Re the Will of FB Gilbert (Dec) (1946) 46 SR (NSW) 318. 31 Greer (449) (Kirby P). 32 Hale Affidavit, Attachment CMH 11, p 33. -- 16 of 26 -- [2026] WASC 269 LUNDBERG J Page 17 49 The applicant then challenges the First Magistrate's decision to hear, and grant, the prosecution's adjournment application. This is also said to be an abuse of process and it is suggested the First Magistrate was unable to address the application impartially. 50 The essential bases of these challenges are somewhat obscure, as a matter of law. 51 The challenge on these grounds must be rejected, in my view, for the following reasons. 52 First, I consider it is more likely than not that the video link application in question was lodged with the court around 27 January 2026 – not in December 2025. The supporting affidavit was in fact sworn on 27 January 2026. The application was then granted by the Second Magistrate on 17 February 2026. The applicant has pointed to matters which suggest the prosecution's application for the police officer to appear by video link was lodged much earlier, and invites the court to draw some inferences concerning wrongdoing on the part of the prosecution and the Magistrate. 53 There is no proper basis to accept the applicant's suggestions of wrongdoing or deliberate conduct on the part of the prosecution or the Magistrate to conceal the application in question, or somehow delay service of the material on the applicant. While the transcript reveals some confusion as to which applications were before the court, counsel for the prosecution has comfortably explained these matters at the hearing today and invited the court to draw the reasonable inference, which I do, that the inclusion of the date of 15 December 2025 on the application was an administrative error. 54 Further, a fair reading of the transcript of the proceedings on 5 January 2026 indicates that the court had before it two applications on that date. The first was the prosecution's application to vacate the trial (not the video link application), which was lodged on 15 December 2025.33 The second application was Mr Penfold's application dated 24 December 2025, which opposed the change of date request.34 55 Confusingly, the prosecutor referred to another application at the hearing, being a video link application, which may have been in prospect at the time but had not been filed with the court. The 33 Being Attachment CMH4 to the Hale Affidavit. 34 Being Attachment CMH6 to the Hale Affidavit. -- 17 of 26 -- [2026] WASC 269 LUNDBERG J Page 18 Magistrate made it clear (at ts 3) that she did not have that application before her. 56 To add to the confusion, the court staff have subsequently referred to the application for video link, in email correspondence to the applicant, as having been lodged in December 2025. I infer that is because an erroneous date was included at the top of the form which the prosecution filed. The administrative staff have simply referred to this date in the form. To further add to the confusion, the application itself states that it was signed on 27 January 2025. This is an obvious error. None of these matters provide a basis to resist the reasonable inference identified by counsel for the prosecution. 57 The attack on the knowledge of the First Magistrate, as at 5 January 2026, is thus without substance. The applicant's suggestions of bias or lack of procedural fairness are merely speculative, in my view. 58 Second, and importantly, the video link application in relation to police officer Gooderson was granted with the consent of the applicant. That is evident from the transcript of the proceedings on 17 February 2026.35 59 Third, as to the grant of the prosecution's application for an adjournment on 5 January 2026, it must be remembered that the grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made.36 Generally speaking, where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order to grant or refuse an adjournment unless there is strong reason for believing that an injustice has resulted.37 I refer to the general principles set out at [40] and [41] above. 60 There is simply no basis in the present case to even arguably conclude that an injustice has resulted. Her Honour gave comprehensive reasons for dealing with that application (at ts 5 - 7). 61 Fourth, any challenge to the decision to grant the adjournment, even if successful, would lack utility. The decision to adjourn, which 35 Hale Affidavit, Attachment CMH 11, pp 39 - 40. 36 Myers v Myers [1969] WAR 19, 21 (Jackson J); Pallett v Paul [2007] WASC 290 [52] - [55] (Hasluck J); Lyster v Kemp [2010] WASC 47 [54] - [56] (Beech J); and Greer (1992) 62 A Crim R 442, 448 (Kirby P). 37 Bennett v Councillor [2001] WASCA 342 [22]. -- 18 of 26 -- [2026] WASC 269 LUNDBERG J Page 19 involved an exercise of discretion on the part of the Magistrate, has been put into effect already. No purpose would now be served in having this court examine the exercise of the discretion in that regard. 62 Grounds 1, 2 and 3 of the application present no arguable basis for the grant of relief and the application for review orders in these respects should be dismissed. Ground 4 – the applicant's video link application 63 This ground challenges the decision of the Second Magistrate to refuse the applicant's video link application. It was refused on 11 May 2026. In articulating the application, the applicant explained that he would be on the North West Cape at the time of the trial, on his brother's boat (or perhaps on a friend's boat), and would be participating in a religious practice on his own.38 The prosecution opposed the application.39 64 The applicant asserts the decision to refuse his request was made without jurisdiction or power. That criticism is without substance and should be rejected. The Magistrate was empowered to consider the application which the applicant had himself made, as further explained below. 65 The applicant then characterises the refusal as 'unfair' because the court allowed competing applications made by the prosecution. That challenge has no substance. It is not appropriate to compare the parties' applications for evidence to be given by video link. Each application stands to be considered on its own terms. There are, of course, different considerations which apply to the exercise of discretion to permit a criminal defendant to give evidence at trial by video link, relative to an application by the prosecution for a police officer to give such evidence or for a medical practitioner to testify by video link. 66 The Second Magistrate heard the application in question on 11 May 2026, which included hearing from the applicant in support of the application, and then ultimately exercised her discretion to dismiss the video link application.40 67 It should be observed that the applicant was required to be present at his trial on 13 May 2026. That is required by s 88(3) of the Criminal 38 Hale Affidavit, Attachment CMH 16, pp 74 - 75. 39 Hale Affidavit, Attachment CMH 16, p 75. 40 Hale Affidavit, Attachment CMH 16, pp 73 - 76. -- 19 of 26 -- [2026] WASC 269 LUNDBERG J Page 20 Procedure Act 2004 (WA) (CPA). However, the court has power to permit a defendant to appear by video link. That power exists in s 88(5) and s 141(2) of the CPA, as well as s 121 of the Evidence Act 1906 (WA). The power in s 88(5) is one that may be granted at the request (and so necessarily with the consent) of the accused.41 68 The Magistrate's ultimate decision, to refuse this particular criminal defendant leave to appear by video link, from a remote and apparently uncontrolled location, in far from compelling circumstances, and given the serious allegations which appear from the pending charges which would need to be tested at trial, was not surprising. 69 Quite apart from the foregoing, the present challenge lacks utility. The applicant's video link application concerned the trial which had been listed for 13 May 2026, which did not proceed. 70 Ground 4 of the application presents no arguable basis for the grant of relief and the application for a review order in this respect should be dismissed. Grounds 5 and 6 – the adjournment on 11 May 2026 71 These grounds concern the Second Magistrate's decision to vacate the trial which had been listed for 13 May 2026. The adjournment suggestion was initiated by the Magistrate, not the applicant, as a result of listing difficulties in the court meaning that the trial might not proceed on the day in question. An adjournment would also have the benefit of allowing all charges against the applicant to be heard at once (bearing in mind there is another set of charges pending against Mr Penfold). 72 At the hearing on 11 May 2026, the court made an order to vacate the trial date. 73 The applicant describes the application as 'fictionalised'. He describes the adjournment as an abuse of process because he says the First Magistrate had described him on 5 January 2026 as being 'priority one' at trial on 13 May 2026. 41 Courtney (a pseudonyum) v The State of Western Australia [2026] WASCA 86 [57], in the context of the discussion as to the forfeitable right of an accused person to be present in court throughout their trial and the applicable statutory provisions in this State. -- 20 of 26 -- [2026] WASC 269 LUNDBERG J Page 21 74 The prosecution characterise the events concerning this matter in the following way:42 The [Second Magistrate's] decision to vacate the trial was made in response to the Applicant's oral application made on 11 May 2026. This application arose following the [Second Magistrate] notifying the Applicant that his trial may not proceed on 13 May 2026 due to other matters listed in the Exmouth Magistrates Court on the same day. As a result, the Applicant applied for an adjournment of the trial, so that those two charges could run alongside other matters of his due to be listed in late 2026. 75 This summary accords with the transcript of the proceedings on 11 May 2026, which I have carefully reviewed.43 The applicant, in effect, initially agreed to the adjournment of the trial following an invitation from the Magistrate and an explanation of the busy list and the other priority matter which was due to be heard on 13 May 2026. 76 At the hearing on 2 July 2026, Mr Penfold emphasised that he was not entirely sure what was happening at the hearing on 11 May 2026, and says that he ultimately withdrew any consent to the adjournment. That is certainly correct, in part, but it ignores the full course of the hearing and the clear indication from Mr Penfold that he was, ultimately, comfortable with the adjournment. Before the hearing was concluded on 11 May 2026, Mr Penfold might have voiced his objection to the adjournment, but did not do so. 77 Following the interchange at ts 15 - 16 which reveals that Mr Penfold agreed to the adjournment, the transcript reveals the volte face by Mr Penfold and the following interchanges: ACCUSED: Your Honour, with respect to section 75 of the Criminal Procedures Act, can you please provide the good reason for the adjournment today? HER HONOUR: Because you've applied for it. ACCUSED: Can I please withdraw my application, your Honour. HER HONOUR: Certainly. ACCUSED: Thank you. 42 SSO Submissions [35]. 43 Hale Affidavit, Attachment CMH 16, pp 77 - 78. -- 21 of 26 -- [2026] WASC 269 LUNDBERG J Page 22 HER HONOUR: So you can do that, absolutely, but this Wednesday, in Exmouth, you need to understand, because you've been forewarned, that there is a trial that day that will take priority over your trial, and so I have given you the option of alternative dates so you can avoid the inconvenience of coming to court on Wednesday. So that's a matter for you. If you don't want to take that opportunity, that's fine. ACCUSED: I'm actually finding it really hard to decide on this at this time, your Honour. HER HONOUR: Finding it hard to what? ACCUSED: To actually make a decision on this right now. HER HONOUR: All right. Well, we will see you at court on Wednesday, then. In Exmouth in two days. (indistinct) HER HONOUR: You're set for trial this Wednesday on two of these charges, right? And then you're on a trial allocation date on two of the other charges. We will set a trial date for the TAD matters to a future court date, which will - - - ACCUSED: So they will all be postponed until 18 November? HER HONOUR: I will just go back to the start, so I can explain it to you. So this Wednesday, you have got —- let me just, so you're really clear - - - ACCUSED: Will I still need to appear in court on Wednesday, your Honour. HER HONOUR: Well, not if we can list them all - we can vacate the — depends what you want to do. So what I'm saying, and I'm just trying to assist you, Mr Penfold, that's all I'm trying to do, because you've indicated that coming to court - I'm getting mixed messages from you. You've indicated coming to court on Wednesday is a problem because you need to be somewhere else. I'm saying to you that it's not accepted for you to appear by audio-link or video-link, that you need to be there in person on Wednesday if your trial is due to go ahead, right? -- 22 of 26 -- [2026] WASC 269 LUNDBERG J Page 23 Now, in the court, for case management purposes, we always list more than one trial. So it's not unusual to have circumstances where a trial cannot go ahead because a certain number of factors are taken into account to prioritise who goes first in relation to their trial being heard. Very common practice in a very busy magistrates court where we have numerous matters, okay? Now, I'm forewarning you, because I've looked ahead at what's coming up on Wednesday, that there is another —- there's listed matters, which is just general matters, and then there is another trial matter as well listed that day. So it's unrealistic, if that trial goes ahead together with the other matters, it is highly unlikely, if not virtually impossible, for your — that your trial, in relation to disorderly conduct and being armed in a way that may cause fear, being Exmouth charges 84 and 85 of 2025, will proceed. In which case, we will have to adjourn it off to these dates I'm talking about, which is in September or November. 78 Her Honour then referred to the other pending charges against the applicant, and the other priority matter listed for 13 May 2026. Her Honour then clarified the position with Mr Penfold as follows (at ts 19): HER HONOUR: So what I'm saying to you is if you wish to avoid the inconvenience, due to the fact also that you've raised that you want to be undertaking religious practises on a boat, you've got the opportunity for me to vacate this Wednesday, which means you don't need to come and we can set your trials down for a date in September, or a date in November of this year instead, and all four matters can go to trial on the same day. Is that something you would like to do or not? It is not a matter of citing Criminal Procedure Act, I am simply trying to use case management to - in your best interest to actually assist you to avoid you being inconvenienced in any way, shape or form, Mr Penfold. 79 Mr Penfold then said he was 'questioning inside my head whether it's really in my best interest though'. He then agreed to the adjournment, and stated (at ts 20): -- 23 of 26 -- [2026] WASC 269 LUNDBERG J Page 24 …let's go for it then. Let's go 18 November, your Honour. I will apply to --- 80 Her Honour then clarified the date would be September, not November. Mr Penfold responded and confirmed he was available on 16 September 2026. 81 The Magistrate, having the power to adjourn the proceeding under s 75(2) of the CPA, exercised her discretion to do so, with the ultimate concurrence of the applicant, after his mid-hearing change of position, and without objection from the prosecution.44 The transcript records no ultimate confusion on Mr Penfold's part and evidences a patience on the part of her Honour to explain the process to the applicant in a careful manner. The criticisms levelled by the applicant at her Honour in relation to the course of the hearing and the adjournment decision which was made are without substance. It of course is to be remembered that this court is not presently assessing or revisiting the merits of that adjournment. As I have explained, the court's role on this application is far narrower. 82 In any event, there is little practical utility in undertaking a review of the exercise of the Magistrate's discretion given the trial was adjourned and is due to proceed on 16 September 2026. 83 Grounds 5 and 6 of the application present no arguable basis for the grant of relief and the application for review orders in these respects should be dismissed. Conclusion and orders 84 For the foregoing reasons, I consider the applicant has failed to demonstrate an arguable basis for any of the review orders to be made under s 36 of the MCA. In the event I had been so satisfied, I consider it would not have been appropriate to exercise the discretion to make the review orders sought, given the absence of any apparent utility in doing so and having regard to the strong need to avoid any fragmentation of these pending criminal proceedings. As to this last point, I consider there is no feature present in this case, whether identified by the applicant or which I can discern, which would justify the intervention of this court, at this pre-trial stage of the criminal process. 44 Hale Affidavit, Attachment CMH 16, p 78. -- 24 of 26 -- [2026] WASC 269 LUNDBERG J Page 25 85 To be clear, as I explained to the applicant at the hearing, nothing in these reasons should be taken as a reflection on the merits, or otherwise, of the charges against the applicant. The effect of these reasons is that the pending criminal proceedings must be allowed to take their course in the ordinary way. 86 Further, the applicant is not without an ultimate remedy. 87 The applicant will have appeal rights which he may seek to exercise at the conclusion of the criminal proceedings in the Magistrates Court, upon a 'decision' being reached by the court at first instance. I made this point to the applicant at the hearing on 2 July 2026. Those appeal rights are found in pt 2 of the CAA. The applicant will have standing to seek leave to appeal in the event a 'decision' is made by a Magistrate to convict the applicant on either or both of the charges in question, or may seek leave to appeal against any sentence imposed, or orders made, as a result of a conviction. These are merely examples. The definition of 'decision' is set out in s 6 of the CAA. 88 For these reasons, the court made orders as follows at the conclusion of the hearing on 2 July 2026: 1. The Form 67A application filed by the applicant on 20 May 2026 shall stand as an application for review orders made pursuant to s 36 of the Magistrates Court Act 2004 (WA) and O 56A of the Rules of the Supreme Court 1971 (WA). 2. The requirement in O 56A r 2(1)(a) of the Rules of the Supreme Court 1971 (WA) that an application for a review order be made ex parte be dispensed with. 3. The time by which the first and second other parties were required to file their affidavits and submissions be extended to 29 June 2026 and 30 June 2026 respectively. 4. The name of the applicant be changed to James Coyle Penfold, the name of the respondent be changed to Magistrate Heidi Watson, the name of the first other party be changed to Paul White, and the name of the third other party be changed to Magistrate Ruth Dineen. 5. The application for review orders be and is hereby dismissed. 6. There be no order as to costs. -- 25 of 26 -- [2026] WASC 269 LUNDBERG J Page 26 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 2 JULY 2026 -- 26 of 26 --