Jones v Johnston [No 2]

[2020] WASC 190

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   JONES -v- JOHNSTON [No 2] [2020] WASC 190

CORAM:   TOTTLE J

HEARD:   15 MAY 2020

DELIVERED          :   15 MAY 2020

PUBLISHED           :   2 JUNE 2020

FILE NO/S:   CIV 2809 of 2019

BETWEEN:   VERA LYNN JONES

Applicant

AND

HER HONOUR MAGISTRATE R JOHNSTON

First Respondent

DEBBIE DODD

Second Respondent

Catchwords:

Judicial review - Review under s 36(4) of the Magistrates Court Act 2004 (WA) - Whether magistrate committed jurisdictional error - No evidence upon which magistrate could have been satisfied - Jurisdictional error established - Relief granted

Legislation:

Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 45, s 47, s 48, s 49, s 54

Result:

Decision to extend restraining order set aside

Category:    B

Representation:

Counsel:

Applicant	:	Ms K A Gorski
First Respondent	:	No appearance
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Legal Aid - Perth
First Respondent	:	No appearance
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

Bindai v Armstrong [2016] WASC 341

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Rayney v AW [2009] WASCA 203

TOTTLE J:

Summary

1. On 15 May 2020 I made an order under s 36(4) of the Magistrates Court Act 2004 (WA) setting aside a decision of the first respondent, a magistrate of the Magistrate's Court of Western Australia, made on 29 September 2017, to extend a violence restraining order made against the applicant under the Restraining Orders Act 1997 (WA) (the Act). These are my reasons for so doing.

2. On 2 April 2020 I made a review order that the first and second respondent satisfy a judge of this Court that the order made on 29 September 2017 extending the operation of restraining order CA RO 97 of 2017 for two years should not be set aside.  The review order was made on the basis that the applicant had established an arguable case that the order extending the operation of the restraining order had been made without jurisdiction.[1]

   [1] Magistrates Court Act 2004 (WA) s 36(1)(c)(i).

3. The first respondent filed a notice of intention to abide.  There was no appearance by the second respondent.

4. The factual background and the applicable statutory provisions are set out in the reasons for making the review order.  For ease of reference I will repeat the relevant paragraphs of those reasons.

The facts

1. The following facts are drawn from the affidavit evidence filed in support of the application for the review order.[2]

   [2] Affidavit of Kerry Ann Gorski affirmed 2 October 2019; Affidavit of Laura Sweetman affirmed 20 January 2019.

2. On 4 September 2015 the second respondent applied for and was granted a restraining order against the applicant.  The application was granted on an ex parte basis.

3. On 10 September 2015 the restraining order was served on the applicant.

4. On 1 September 2017 the second respondent filed an application to extend the duration of the restraining order in the Magistrates Court at Carnarvon.

5. 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 the application) 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'. 

6. 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.

7. 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.[3] 

   [3] Affidavit of Laura Sweetman affirmed 20 January 2019.

8. 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:

   HER HONOUR:  Thank you.  All right.  So, Ms Dodd, 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?

9. On 8 March 2018 the order made by the magistrate on 29 September 2017 was served on the applicant.  There is a service certificate recording that the applicant was served with the order. 

10. The applicant was convicted of breaching the restraining order by offences that occurred during the extension period.  She has separately applied for leave to appeal against her conviction.[4]

    [4] SJA 1124 of 2019 and SJA 1126 of 2019.

The relevant statutory provisions

1. 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).

2. 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.

3. A summons under s 47 of the Act must be served in accordance with s 54 of the Act, which provides:

   54.Service of summons

   (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.

   (2)A summons served by post is to be sent -

   (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.

4. 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, if the court is satisfied that the summonsed person was served with a summons, it 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).

5. 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'.

Disposition

1. The first respondent's authority to decide to extend the restraining order was not conditional upon actual service of the summons on the applicant, but rather on the court being satisfied that the summons had been served on the applicant.[5]  Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.[6]

   [5] Bindai v Armstrong [2016] WASC 341 [22] – [23].

   [6] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (French CJ); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [130]-[137] (Gummow J); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [183] (Gummow and Hayne JJ).

2. Where a state of satisfaction is a jurisdictional fact 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‑maker commits a jurisdictional error.[7]

   [7] Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [23] - [24] (Gummow ACJ & Kiefel J); R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 432 (Latham CJ).

3. The evidence on the review order hearing was the same as it was at the hearing of the review order application.  I am satisfied that there was no evidence before the first respondent on 29 September 2017 upon which she could have been satisfied that the applicant had been served with the summons.  Accordingly, the first respondent committed a jurisdictional error. 

4. As a reviewable error was established under s 36(1), the discretion to grant relief under s 36(4) of the Magistrates Court Act 2004 (WA) was enlivened.[8]  There were no discretionary reasons for not setting aside the order of 29 September 2017.  Consequently, I made orders quashing the decision to extend the restraining order.

   [8] Rayney v AW [2009] WASCA 203 [31] (McLure JA, Buss & Newnes JJA agreeing).

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

AS
Associate to the Honourable Justice Tottle

2 JUNE 2020