The applicant has applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) in respect of a decision made on 29 September 2017 to extend a violence restraining order made against the applicant under the Restraining Orders Act 1997 (WA) (the Act).
Pursuant to O 56A r 2 of the Rules of the Supreme Court 1971 (WA) the application was heard ex parte on 18 December 2019 and further written submissions were filed on 30 January 2020.
The ground upon which the application is based is that the applicant was not served with the summons seeking the extension of the order and the magistrate made the order without having the jurisdiction to do so.
[2]
The following facts are drawn from the affidavit evidence filed in support of the application.[1]
On 4 September 2015 the protected person applied for and was granted a restraining order against the applicant. The application was granted on an ex parte basis.
On 10 September 2015 the restraining order was served on the applicant.
On 1 September 2017 the protected person filed an application to extend the duration of the restraining order in the Magistrates Court at Carnarvon.
In September 2017 the standard practice followed in the Magistrates Court at Carnarvon on the filing of an application to vary a restraining order was as follows. A summons to the respondent to attend the hearing was generated automatically by the Integrated Courts Management System. An electronic 'proof of service copy and a summonsed person's copy' was sent automatically to the Carnarvon Police Station and 'Police Information Capture'. A paper copy of the summons was placed on the court file retained by the court. Once service had been effected the 'proof of service copy' was returned to the court with an endorsement of service - 'a service certificate'.
In accordance with the standard practice described in the preceding paragraph the summons to the applicant to attend court for the hearing of the application on 29 September 2017 was sent to the Carnarvon Police Station and 'Police Information Capture' on 1 September 2017.
There is no record of the summons being served on the applicant. Inquiries with 'Police Information Capture' have been made and no service certificate can be found to show that the applicant had been served with the summons to attend the hearing on 29 September 2017.[2]
On 29 September 2017 the magistrate heard the application to extend the restraining order. The hearing lasted a matter of minutes. The magistrate established that there was no attendance by the applicant and the hearing proceeded as follows:
[3]
HER HONOUR: Thank you. All right. So, Ms [protected person], Ms Jones was summonsed to appear today. So she - the court told her that she needed to come to court today to hear your application. She's not here today. I will grant your application to extend the order.
...
HER HONOUR: So it will be extended for a period of two years to 10 September. Okay?
[4]
On 8 March 2018 the order made on 29 September 2017 was served on the applicant. There is a service certificate recording that the applicant was served with the order made on 29 September 2017.
The applicant was convicted of breaching the restraining order by offences that occurred during the extension period. She has applied for leave to appeal against her conviction.
[5]
Section 45 of the Act governs applications to vary or cancel restraining orders, including applications to vary an order by extending the duration of the order: s 45(6).
Section 47(1) of the Act provides that if an application to vary the restraining order is made, the registrar is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing.
A summons under s 47 of the Act must be served in accordance with s 54 of the Act, which provides:
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54. Service of summons
(1) A summons relating to a restraining order is to be served -
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(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.
[8]
(a) by prepaid registered post; and
(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.
[9]
Section 48 of the Act governs what is to occur if a person summonsed to attend a hearing under s 47(1) does not attend. Relevantly, the court, if it is satisfied that the summonsed person was served with a summons, is to hear the matter in the absence of the summonsed person, or otherwise the court is to adjourn the hearing: s 48(2)(d).
Section 49 of the Act provides that the court, at a hearing fixed under s 47 of an application to vary or cancel a restraining order, may dismiss the application, vary the order or cancel the order - the power to take any of these steps is expressed, however, to be 'subject to section 48'.
[10]
A review order can only be made if the applicant establishes an arguable case that an error of the type identified in s 36(1) of the Magistrates Court Act 2004 (WA) was made. The relevant classes of error include the making of an order without jurisdiction or power: s 36(1)(c)(i). An arguable case means one that has reasonable prospects of success.[3] The error must be either a jurisdictional error or an error of law on the face of the record to fall within s 36(1).[4] The grant of relief is pre-conditioned upon establishing a reviewable error under s 36(1).[5]
Where a state of satisfaction is a condition precedent to a decision‑maker's authority to decide and there is no evidence upon which the decision-maker could have achieved the necessary state of satisfaction yet a decision is made, the decision will be treated as a failure to exercise jurisdiction - a purported exercise of public power in the absence of the necessary jurisdictional fact.[6]
I am satisfied that it is reasonably arguable that satisfaction on the part of the magistrate that the applicant had been served with the summons was a condition precedent to the magistrate's authority to decide the application to vary the restraining order by extending its duration - that is that it was a jurisdictional fact.[7] The court's authority to decide was not conditional upon actual service of the summons on the applicant rather on the court being satisfied that the applicant had been served with the summons.[8]
On the evidence adduced by the applicant she has established a reasonably arguable case that there was no evidence before the court on 29 September 2017 upon which the magistrate could have been satisfied that the applicant had been served with the summons. On that basis the applicant has a reasonably arguable case that the magistrate had no authority to decide that the restraining order should be varied by extending its duration. Accordingly I will make a review order.
I will hear the applicant as to the terms of the review order.
[11]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[12]
[1] Affidavit of Kerry Ann Gorski affirmed 2 October 2019, affidavit of Laura Sweetman affirmed on 20 January 2019.
[13]
[2] Affidavit of Laura Sweetman affirmed on 20 January 2019.
[14]
[3] Re Brian Charles Gluestein; Ex parte Anthony [2014] WASC 381 [42] (Beech J).
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[4] Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380 [7] (Archer J).
[16]
[5] Rayney v AW [2009] WASCA 203 [31] (McLure JA, Buss & Newnes JJA agreeing).