Appeal - Application to vary a final violence restraining order - Notice not given to person bound by the order - Magistrate had no power to deal with the application to vary final violence restraining order ex parte - Jurisdictional error - Section 36 Magistrates Court Act 2004 - Breach of natural justice - Appeal allowed

Appeal allowed matter remitted to Magistrates Court

Eastman v Director of Public Prosecutions (ACT) (2003) 140 A Crim R 472

Gallo v Dawson [1990] HCA 30

Girando v Girando (1997) 18 WAR 450

Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460

McWaters v Shirley [2005] WASC 188

Pillage v Coyne [2000] WASCA 135

R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216

Re Burton; Ex parte Lowe [2003] WASCA 306

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56

Simonsen v Legge [2010] WASCA 238

Sims v Suda Ltd [2015] WASCA 65

1 BOWDEN DCJ: On 13 May 2016 I allowed Mr Bindai's appeal. These are my reasons.

2 On 13 December 2012 Ms Jugarie was granted an interim violence restraining order against Mr Bindai. On 12 February 2013 that interim violence restraining order was made final.

3 On 24 August 2014 a variation to that violence restraining order was granted (the amended violence restraining order). That order was served on Mr Bindai on 26 August 2014.

4 On 30 September 2014 Ms Jugarie made an application to vary the amended violence restraining order. The Restraining Orders Act 1997 (WA) (the Act) required the registrar to notify, by summons, Mr Bindai of the date for hearing of the variation application. This did not occur. The Act required the court to satisfy itself that the summons had been served before proceeding to hear the matter. That did not occur. The application was dealt with ex parte and granted by her Honour on the same day it was filed and a new final violence restraining order made against Mr Bindai (the varied final violence restraining order). That order was served on Mr Bindai on 9 October 2014.

5 On 5 April 2016 Mr Bindai filed an appeal notice appealing the issuing of the varied final violence restraining order.

6 Mr Bindai requires an extension of time within which to appeal and seeks to introduce additional evidence by way of an affidavit from Ms Cerqiu sworn 11 February 2016.

7 Pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) an appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so. The appeal is to be conducted in accordance with (pt IV of the Magistrates Court (Civil Proceedings) Act 2004 (WA) and the rules made by the District Court (s 40(3)(b)(c)).

9 The granting of an extension of time, notwithstanding the court has leave to do so, is not automatic. The principles applicable to an extension of time within which to appeal were reviewed in Simonsen v Legge [2010] WASCA 238. The discretion to extend time is for the sole purpose of enabling the court to do justice between the parties: Simonsen v Legge; Gallo v Dawson [1990] HCA 30.

10 In order to justify an extension of time the reasons for, and the length of, the delay must be addressed and there must be some material upon which the court can exercise its discretion. The cogency of an explanation required for the delay increases as a period of extension sought increases: Simonsen v Legge; Girando v Girando (1997) 18 WAR 450.

11 The four major factors to be considered, although they are not necessarily exhaustive, are:

1. the length of the delay;
2. the reason for the delay;
3. the prospects of the appellant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

12 Extensions of time are not and cannot be there simply for the taking: Sims v Suda Ltd [2015] WASCA 65.

13 It is important that parties comply with the rules of the court relating to time limits for lodging an appeal. The public interest in the effective utilisation of the public resources of the court and the interests of the other party in an expeditious and cost effective resolution of the appeal require that the rules be complied with.

14 However, Mr Bindai is an aboriginal man of limited education who lives at a remote community and has limited understanding of legal issues. He does not have ready access to legal advice. He was not aware of potential grounds of appeal until they were bought to his attention by his lawyers. Notwithstanding the lengthy delay, it has been adequately explained.

15 Ms Jugarie's lawyers filed a notice saying she did not intend to take part in this appeal and would accept any order made by the court.

16 The court record reveals she did not oppose the granting of the stay application.

17 An extension of time will not be granted unless there is some prospect of success but that does not mean time must be extended if the appeal has any prospect of success: Simonsen v Legge. The mere fact that the appellant demonstrates an arguable case or a strongly arguable case, even in the absence of significant prejudice shown by the respondent, does not mean necessarily that an extension of time should be granted.

18 There are other factors to consider including the need for finality in litigation. Restraining orders form a significant part of Magistrates Court's workload dealt with on a daily basis and the issues raised in the appeal in connection with the manner in which the variation application are of importance.

20 Additional evidence cannot be adduced without leave of the court and the court is not to grant leave unless it is satisfied there are special grounds for doing so: see r 50 of the District Court Rules 2005 (WA).

21 No invariable rule concerning the admission of additional evidence should be laid down; however, the discretion to admit further evidence is to ensure the overall interests of justice. If the needs of justice in the particular case require the reception of additional evidence, then special grounds are made out: Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460.

22 Ms Cerqiu's affidavit sworn 11 February 2016 was sworn primarily for the stay application. It attaches various documents that are, in any event, on the court file and includes details of charges against Mr Bindai for breach of the varied final violence restraining order and Mr Bindai's criminal record. It explains when Aboriginal Legal Service was first instructed and the steps they took to obtain the court file. The affidavit is relevant to both the questions of an extension of time and the appeal, although it contains some inadmissible material as to the merits of the appeal (parts of pars 18, 19, 20) although such material is admissible in relation to why Mr Bindai, after a 17 month delay, seeks to appeal. I grant leave to admit the affidavit.

23 The affidavit reveals that on 10 October 2014 Mr Bindai allegedly committed the offence of breaching the varied further violence restraining order and on 17 October 2014 was sentenced to 8 months' imprisonment for that offence.

24 On 31 October 2015 Mr Bindai was charged with a further offence of breach of the varied violence restraining order allegedly committed on that date. That charge is pending.

25 On 6 January 2016 Mr Bindai was charged with a further offence of breach of the varied violence restraining order allegedly committed on 6 January 2016. That charge is also pending.

1. The final violence restraining order made by Webb M at the Magistrates Court at Kununurra on 30 September 2014 'the restraining order' is invalid as it was made without jurisdictional power.

1.1 Under s 49 of the Restraining Orders Act 1987 ('the RO Act') is an essential condition precedent to the exercise of the court's jurisdiction (or power) to vary or cancel a restraining order upon application by a person protected under s 45 of the RO Act that the registrar fix a hearing of the application and summons a person as bound by the order to the hearing under s 47 of the RO Act.

1.2 On 30 September 2014 the respondent filed an application to vary the restraining order dated 14 December 2012, as amended on 20 August 2014 ('the variation application').

1.3 On 30 September 2014 the learned Magistrate heard the variation application, in the absence of the appellant;

1.4 On 30 September 2014 the learned Magistrate made the restraining order, in the absence of the appellant;

1.5 A hearing of the variation application was not fixed under s 47 of the RO Act as the appellant was not summonsed to the hearing of the application.

1. In the alternative, the learned Magistrate erred in law by making the restraining order without affording the appellant procedural fairness by way of a right to be heard in relation to the variation application.

27 The Magistrates Court Act 2004 (WA) provides:

(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.

...

(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.

...

(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -

(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or

(b) adjourn the appeal to enable an application to be made to the Supreme Court -

(ii) under the District Court of Western Australia Act 1969 section 76.

(1) If a registrar is to fix a hearing and summons a person to the hearing, the registrar is to -

(c) cause the summons to be served on the person; and

(1) An application to vary or cancel a restraining order may be made by -

(b) a police officer on behalf of the person protected by the order; or

(1) If an application is made under section 45(1)(a) or (b), (2) or (3) the registrar is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing.

...

(a) a person summonsed under section 47(1) or 47(2) does not attend; or

(b) where the Commissioner of Police was notified under section 47(3), no police officer nominated under that section attends,

a hearing fixed under that section and the person who made the application does attend, the court -

(c) if it is satisfied the summonsed person was served with the summons, or that the Commissioner of Police was notified of the hearing, is to hear the matter in the absence of the summonsed person or a nominated police officer; or

(1) Subject to section 48, at a hearing fixed under section 47 of an application made under section 45 the court may -

(b) if it decides to vary an interim order or a final order -

(i) cancel the original order and make a replacement order that contains the variations; or

(ii) make an additional interim order or final order, to be read with the original order, that states the variations;

(c) if it decides to cancel an interim order or a final order, cancel the order.

(2) The registrar is to prepare and serve an order made under subsection (1) or (1a).

...

(4) The cancellation of an order under subsection (1) has effect -

(a) if another order is made when the original order is cancelled, at the time the new order comes into force; or

(b) otherwise, at the conclusion of the hearing at which the order was cancelled.

(5) The cancellation of an order under subsection (1a) has effect at the conclusion of the hearing at which the order is cancelled.

(1) A summons relating to a restraining order is to be served -

(a) personally, at least 7 days before the hearing date; or

(b) by post in accordance with subsection (2), at least 14 days before the hearing date.

(b) to the person to whom it is directed at the person's last known place of residence or business; and

(c) by the registrar, a police officer or a person authorised by the registrar.

28 Mr Bindai's principal argument is that the court must be satisfied the person bound by the order has been properly summonsed and has failed to attend the hearing before the court's power to hear the variation application under s 49 are engaged and the court has the power under s 48 to proceed in absentia.

29 Mr Bindai says that the requirement to hear the variation application only after the court is satisfied of service of the summons is to ensure natural justice by way of procedural fairness and that requirement is the core, objective and jurisdictional fact necessary for the conferral of the court's power to hear the variation application.

30 Mr Bindai says that as those jurisdictional facts did not exist at the time the magistrate made the violence restraining order of 30 September 2014, the magistrate committed a jurisdictional error and was acting without power or jurisdiction and accordingly the violence restraining order is a nullity.

31 In addition Mr Bindai submits that jurisdictional error is also established by the failure of the court to afford procedural fairness to Mr Bindai. The submission is the magistrate failed to afford Mr Bindai the opportunity to be heard and thereby failed to afford him procedural fairness. It is said that the requirement for procedural fairness could only be displaced by clear words in the Act indicating that was the legislature's intent and there is nothing in the Act showing a legislative intent to displace the normal rules of procedural fairness.

32 Accordingly, it is submitted the failure to give Mr Bindai an opportunity to be heard before making the orders went beyond an error within jurisdiction and was a jurisdictional error in that the magistrate departed from the limits of the exercise of her powers and the restraining order is therefore a nullity.

33 It is not necessary for me to determine these issues because the appeal is allowed in respect of ground 2.

34 In any event, pursuant to s 36(1)(c) of the Magistrates Court Act 2004 (WA) a person aggrieved by an order made by the Magistrates Court on a ground that the order was without jurisdiction or on a ground that might have justified an order of certiorari may apply to the Supreme Court for a review of that order.

35 Section 36 clearly envisages the legislative intent to vest the Supreme Court with exclusive jurisdiction, inter alia, on matters that would otherwise ground the prerogative writs of mandamus, prohibition and certiorari.

36 Section 36(5)(b) enables the Supreme Court where it considers an appeal in the matter would lie under the Magistrates Court (Civil Proceedings) Act 2004 (WA) to remit the matter to the District Court.

37 Section 36(7) enables the District Court when deciding an appeal under the Magistrates Court (Civil Proceedings) Act 2004 (WA) to adjourn the appeal to enable an application to be made to the Supreme Court.

38 In my view, a ground of appeal alleging jurisdictional error in the issue of a restraining order and in effect seeking a declaration as to the nullity or invalidity of that order must be made to the Supreme Court. I have not adjourned to enable application to be made to the Supreme Court because I have allowed the appeal on ground 2.

39 Whilst I indicated to Mr Brunello during the appeal hearing that I intended to deal with the question of jurisdictional error, on reflection, it would be an error to do so.

40 The jurisdiction error argument is of some significance to Mr Bindai as he intends to appeal the conviction for breach of the varied final restraining order which resulted in a sentence of 8 months' imprisonment. A finding of jurisdictional error would normally mean the order made was treated as if it was never made. Any finding I make would not, of course, bind a Supreme Court judge on any criminal appeal. If Mr Bindai wishes the jurisdictional error point to be determined on this civil appeal he ought to have applied to the Supreme Court pursuant to s 36 of the Magistrates Court (Civil Proceedings) Act 2004 (WA). That court can remit the matter back in their discretion and I will then deliver my reasons on that issue. If Mr Bindai wishes to raise the issue of jurisdictional error on any criminal appeal against conviction he can do so when he appeals to the Supreme Court.

41 As a result of not being served with a summons or otherwise notified of the hearing, Mr Bindai was denied natural justice by not receiving an opportunity to be heard.

42 The rules of natural justice have two substantive requirements, the first, requirement is that a decision-maker give an opportunity to be heard to a person whose interests will be affected adversely by the decision: Re Burton; Ex parte Lowe [2003] WASCA 306 [63] - [65] (Justice Barker).

43 A person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327; [2003] HCA 56 [22] (Gleeson CJ, Gummow and Heydon JJ).

44 Section 45 of the Act permits a variation application to be made. Section 47 provides that once an application is made, the registrar is to fix a hearing for that purpose and summons the person bound by the order to the hearing. Section 9 provides that the registrar in fixing the hearing must fix a day, prepare a summons and serve the summons on the person. Section 54 provides that the summons must be served in advance of the hearing. Section 48(2)(c) permits the court, if it is satisfied the summonsed person was served with the summons, to hear the matter or otherwise it must adjourn the hearing (s 48(2)(d)). Section 49 permits certain orders to be made to dismiss the application or allow the variation and make consequential order.

45 The variation application was heard the day it was applied for. No summons was served on Mr Bindai notifying him of the hearing date, in addition, the court made no inquiry to satisfy itself that the summons required to be served by the Act was served and the hearing then proceeded.

46 Restraining orders are civil matters, however, they have a quasi-criminal effect. They can curtail a person's freedom of association and communication and person's residential rights. The breach of a restraining order constitutes a criminal offence and can result, in some circumstance, in mandatory imprisonment: s 61A.

47 There is no doubt that the Act is social legislation of the utmost importance: Pillage v Coyne [2000] WASCA 135 (Miller J). However, regard must be had to the legal rights of the parties: McWaters v Shirley [2005] WASC 188 (Heenan J). Her Honour erred in proceeding ex parte on the variation application. There is no power in the Act for an application to vary the final order to be heard ex parte, the person bound by the final order must be notified of the application and the hearing date. This did not occur. Mr Bindai was denied natural justice. Ground 2 is made out.

48 Following the hearing of the appeal further submissions were made by Mr Bindai. The hearing of an appeal is a time to present arguments, after such hearing, no further arguments will be received without the leave of the court. That would only be given in exceptional circumstances: Eastman v Director of Public Prosecutions (ACT) (2003) 140 A Crim R 472; R v Theophanous [2003] VSCA 78; (2003) 141 A Crim R 216. A party has no legal right to put submissions to the court after the appeal hearing, they have a right to present their arguments at the appeal hearing.

1. The time for the appellant to file the appeal notice in this matter is extended until 11 February 2016.
2. Leave is granted to the appellant to adduce the affidavit of Ms Shelley Cerqui of 11 February 2016 in the appeal.
3. The appeal be allowed and Kununurra restraining order 1561 of 2012 dated 30 September 2014 is set aside.
4. The matter be remitted to the Kununurra Magistrates Court on Monday 7 June 2016 at 9.00 am for the variation application to be dealt with in accordance with the Act.
5. There be no order as to costs.