MATTER : In the matter of an application under the Magistrates Court Act 2004, s 36, for a review order against Steven Alex Heath, Chief Magistrate of the Magistrates Court at Perth, ex parte Benjamin William Ives, Applicant

Application for review of magistrate's order - Issue of arrest warrant - Whether an abuse of process - Turns on own facts

Magistrates Court Act 2004 (WA), s 36

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Rayney v AW [2009] WASCA 203

Rogers v The Queen (1994) 181 CLR 251

Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

1 This was an application for a review order under the Magistrates Court Act 2004 (WA) (MCA), s 36. By the Rules of the Supreme Court 1971 (WA), O 56A r 2, such an application is made ex parte and must be supported by affidavit.

2 MCA, s 35, provides that the ancient prerogative writs of mandamus, prohibition and certiorari may not be issued in respect of, or directed to, the Magistrates Court. However, a procedure for review of acts, orders and directions refused, proposed to be done or in fact done by such a court, is provided in MCA, s 36, upon application to this court for a review order directed against the magistrate or court officer involved.

3 It is evident that a ground for review may not only be a ground upon which, at common law, the remedies of mandamus, prohibition or certiorari might have issued, but may be a ground shorn of the technicalities surrounding those remedies, but which nonetheless challenges the refusal by a magistrate to exercise a power which it was his or her duty to do, or challenges an act, order or direction which is proposed, or which has been done, on the ground of a lack of jurisdiction or power or that such an act would constitute, 'an abuse of process'.

4 The decision of this application requires no definitive statement about what might constitute an abuse of process within the meaning of s 36. Nonetheless, it is important in this case to remember that this court's power to make a review order, or a final order, under s 36(4) is only enlivened if a ground upon which relief may be granted is established: Rayney v AW [2009] WASCA 203 [27] - [31] (McLure JA, Buss and Newnes JJA agreeing).

5 As her Honour there pointed out, s 36(3) provides that on an application for a review order this court, 'may make any review order that is just'. But it will not be 'just' to make a review order unless an arguable case of reviewable error has been made out by the applicant.

6 The affidavit upon which Mr Ives relied did not set out clearly the nature of the circumstances said by him to have given rise to reviewable error in this case. But I accept what he said in answer to my questions at the hearing of the application.

7 The facts are as follows. Mr Ives apparently had a busy day in relation to various court proceedings on 17 May 2010. He had an application to be heard by the Court of Appeal. He knew about that appointment. He also had an application in the Magistrates Court at Perth for 'costs' in respect of a prosecution for breach of an apprehended violence order which had apparently been discontinued. For mention in the same court was a charge that he had breached an apprehended violence order, for which, it appears, he had been arrested, but in respect of which he had been released on bail.

8 He must have been aware of the nature of his commitments to both courts. In addition, he says that when he attended at the Supreme Court there were further documents which he proposed to file to avoid a springing order. It seems that he did not give thought to how all these commitments were to be accommodated until the morning of 17 May, although he says he was 'unaware' of the extent of the clash of commitments.

9 Early in the morning of 17 May, Mr Ives sent an email to the Court of Appeal office. It referred to the number of the matter before the court and simply said, 'Unavailable for today's hearing.' Unsurprisingly, the response from the coordinator of the Court of Appeal office asked him to telephone that person to discuss the contents of the email.

10 It seems that he did not immediately telephone, but sent emails advising that he was using the internet at the State Library, and later, that he was required to attend the Magistrates Court to plead to criminal charges in respect of which he was currently on bail. 17 May was a Monday. In that email he said that he only became aware of the clash of commitments on checking his diary late on Friday afternoon.

11 Although it is not completely clear from the affidavit, it seems that he was advised that he was required to attend the Supreme Court and the judges would be available to hear his application.

12 Mr Ives went to the Magistrates Court which, in relation to the particular list in which his matters appeared, was presided over by his Honour the Chief Magistrate. It seems to have been a busy list. Mr Ives said that he was told that his matters would be called first, but that did not happen. He does not say who gave him that information. His matters were not called during the morning.

13 He says that on three occasions he approached court officers and told them that he had 'urgent business to attend to'. He mentioned the Supreme Court. He says that Chief Magistrate Heath knew him and must have seen that he was present. But whether or not his Honour did so is immaterial.

14 When his matters had not been called on by the luncheon adjournment, Mr Ives said that he was told that, 'I could do whatever I liked and I was free to go.' It appears that he had not surrendered from bail and so, no doubt, that advice, by whomever it was given, was accurate enough, provided he was at the court when his cases were called, particularly because of the bail.

15 At that time it seems that Mr Ives was living in Bassendean. He knew he would need papers for the matters to be attended to at the Supreme Court. He caught a train to Bassendean. He then had a 15-minute walk to his home. Having got there, he realised he would not be able to get back to Perth in time. He says that he had not eaten that day at all and was feeling unwell. He decided he could not return to the city, and he sent emails to the Court of Appeal office and the office of the Magistrates Court, asking that both hearings be 'vacated'. In the email he gives the reason for that request as being, 'I do not have the money to afford a train fare home if I return to the city now.'

16 By facsimile he sent an application, dated 17 May 2010, to the Magistrates Court, asking that the hearing listed for that day be adjourned, 'due to reasons stated in email to the Chief Magistrate'. Oddly, in that document he gives, as his address, what appears to be his present address in Claremont rather than the address he says he then had, which was in Bassendean.

17 Of course, it is the case, as I understand the facts as they are stated by the applicant, that by failing to attend at the Magistrates Court when the matters in respect of which he had been granted bail were called on for mention, he breached the bail undertaking and, on the admitted facts, he would appear to have committed an offence against s 51(1) of the Bail Act 1982 (WA) because he would seem to have had no 'reasonable cause' for his failure to comply. But that is not to the point.

18 It seems that when he did not appear, the magistrate issued a warrant for his arrest on the outstanding charges. A copy of that document has not been provided, and it is not completely clear to what offence or offences the charges related. In his affidavit, par 10, Mr Ives says that he was charged with breaches of a violence restraining order by sending emails, and he refers to s 38(2) of the Criminal Procedure Act 2004 (WA) (CPA), which provides that:

(2) If on a court date for an indictable charge the accused does not appear the court must either -

(i) issue a summons to the accused that states the new court date; or

(ii) make an order under the Bail Act 1982 section 31(2)(b) substituting the new court date,

as the case requires; or

(b) issue an arrest warrant for the accused.

19 I presume, therefore, that the applicant had been charged with a stalking offence under s 338E(1) of the Criminal Code (WA) committed in a circumstance of aggravation within the meaning of s 221(1)(c) of the Code in that it was alleged that the commission of the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 (WA).

20 The applicant does not contend that there was no power for the Chief Magistrate to issue an arrest warrant pursuant to s 38(2) of the CPA. But, he argues that bail could have been extended under s 38(2)(a)(ii), the hearing adjourned and a new court date substituted. As that was not done, the applicant argues that the decision to issue the arrest warrant was an abuse of process within the meaning of MCA, s 36(1)(c)(i).

21 He argues that the decision to issue the arrest warrant was so unreasonable that no decision-maker acting in the execution of the power conferred by CPA, s 38, could possibly have properly arrived at the decision. He calls in aid the doctrine of Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. I have read the other cases to which the applicant refers in his outline of submissions, but I will not refer to them because they do not seem to me to be authorities which particularly assist in advancing his argument.

22 The short question, in my view, is whether the decision to issue the arrest warrant may arguably be an abuse of process within the meaning of MCA, s 36. It is unnecessary for present purposes, as I have already said, to arrive at a definitive conclusion about the meaning of the term, but I am inclined to think that it is unnecessary to go to the length of establishing that a purported exercise of power is so unreasonable as to demonstrate that the court officer must have misconceived the nature of the power, or as to demonstrate that there has, in truth, been no exercise of the power conferred at all, although, of course, cases which are arguably of that kind would certainly make it just to make a review order.

23 It seems to me that for it to be just to make a review order, it would be sufficient to make out an arguable case that the act, order or direction proposed or impugned was an abuse of power because, although within power, it was proposed or done for an improper or collateral purpose other than that for which the power was conferred, even though what is proposed to be done or has been done would not be regarded as an improper act in itself.

24 This is the notion of abuse of process developed as a doctrine which may support an application for a stay of proceedings in such cases as Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Rogers v The Queen (1994) 181 CLR 251; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 and Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328.

25 In this matter, however, there is no evidence of any such arguable case. On the basis that his Honour Chief Magistrate Heath issued the warrant, there is nothing to indicate that it was not a bona fide measure designed to secure the attendance of the applicant upon his breach of bail. It is not to the point to observe that a less intrusive process might have been employed within the ambit of s 38(2) of the CPA.

26 In my opinion, the case presented as one where, in frustration after his matters had not been called and he had not been required to surrender from his bail during the morning, the applicant had made a deliberate decision, with little justification, to absent himself and to decline to appear. In those circumstances it was reasonably open to his Honour the magistrate to consider that merely extending the bail to a new court date would not have been an effective means of securing the attendance of the applicant, resulting in a supportable judgment that the issue of an arrest warrant was required.

27 The applicant has not made out an arguable case of abuse of process and his application for a review order is refused.