Jones v Pennuto - [2020] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JONES -v- PENNUTO [2020] WASC 416
CORAM:   TOTTLE J
HEARD:   15 JUNE 2020 & FURTHER SUBMISSIONS ON 29 JUNE 2020 & 14 SEPTEMBER 2020
DELIVERED          :   19 NOVEMBER 2020
FILE NO/S:   SJA 1124 of 2019
BETWEEN:   VERA LYNN JONES
Appellant
AND
TARYN PENNUTO
Respondent

FILE NO/S: SJA 1126 of 2019
BETWEEN: VERA LYNN JONES
Appellant
AND
THOMAS PROCTOR
First Respondent
JOHN WINTER
Second Respondent

ON APPEAL FROM:
For File No:   SJA 1124 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R HUSTON
File Number            :   EX 38 of 2019
For File No:   SJA 1126 of 2019
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J SCUTT
File Number            :   CA 707 of 2018, CA 1098 of 2018

Catchwords:

Criminal law - Appeal against conviction - Where conviction entered following plea of guilty - Where appellant convicted of breach of violence restraining order in breach of s 61(1) of the Restraining Orders Act 1997 (WA) - Where underlying violence restraining order subsequently set aside for invalidity - Whether violence restraining order had to be obeyed until set aside - Whether conviction should be set aside

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 5, s 6, s 8, s 10
Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 43, s 47, s 48, s 49, s 61, s 64

Result:

Extension of time to bring the appeal granted
Leave to appeal granted
Appeal dismissed

Category: B

Representation:

SJA 1124 of 2019

Counsel:

Appellant	:	K Gorski
Respondent	:	J F Bennett

Solicitors:

Appellant	:	Legal Aid Perth - Criminal Appeals
Respondent	:	State Solicitor for Western Australia

SJA 1126 of 2019

Counsel:

Appellant	:	K Gorski
First Respondent	:	J F Bennett
Second Respondent	:	J F Bennett

Solicitors:

Appellant	:	Legal Aid Perth - Criminal Appeals
First Respondent	:	State Solicitor for Western Australia
Second Respondent	:	State Solicitor for Western Australia

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

Appleyard v Walker [2009] WASCA 141
Bindai v Armstrong [2016] WASC 341
Bindai v Jugarie [2016] WADC 68
Boddington v British Transport Police [1999] 2 AC 143
Borsa v The Queen [2003] WASCA 254
Director of Public Prosecutions v Edwards [2012] VSCA 293
J & F Stone Lighting & Radio Ltd v Levitt [1947] AC 209
Jadwan v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1
Jones v Johnston [No 2] [2020] WASC 190
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Pelechowski v Registrar of the NSW Court of Appeal [1999] HCA 19; (1999) 198 CLR 435
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
R v Gregory [2002] NSWCCA 199
Re Magistrate R Johnston; Ex parte Jones [2020] WASC 107
Russell v RCR Tomilinson [No 2] [2016] WASC 240
Scott v Bennett (1871) LR 5 HL 234
The State of New South Wales v Kable [No 2] [2013] HCA 26; (2013) 252 CLR 118
Tulloh v CEO of the Department of Corrective Services [2020] WASCA 10
Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105
Vella v The State of Western Australia [2006] WASCA 129
Welch v Nagy [1950] 1 KB 455
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; [2013] 252 CLR 480

TOTTLE J:

Introduction

The appellant pleaded guilty to three charges of breaching a violence restraining order in contravention of s 61(1) of the Restraining Orders Act 1997 (WA) (the RO Act). The violence restraining order was subsequently set aside pursuant to an order of this court on the basis that it was made without jurisdiction. In the two applications presently before the court the appellant seeks leave to appeal against the convictions for breaching the violence restraining order.
The central issue concerns the legal effect of a violence restraining order made without jurisdiction, specifically whether breach of such an order is capable of constituting an offence under s 61(1) of the RO Act. The issue may be expressed in simple terms but it involves some legal difficulty. Following the hearing, at my invitation, the parties made further written submissions on two occasions. I am indebted to both counsel for the assistance derived from their respective submissions.
As will become clear from my summary of the background, the appellant requires an extension of time within which to bring her applications. The delay in bringing the applications has been explained and I will grant leave to bring the applications out of time.

The background

On 10 September 2015 the appellant was served with a violence restraining order made under s 43 of the RO Act.
On 29 September 2017 the order was varied by extending its operation for two years purportedly under s 49 of the RO Act (Extended VRO). The period of two years was expressed to commence on 10 September 2017.
The appellant was served with the Extended VRO in March 2018.
By three prosecution notices it was alleged that the appellant breached the Extended VRO on 17 June 2018, 7 October 2018, and again in the period between 16 and 23 August 2019 and thereby committed offences under s 61(1) of the RO Act.
On 17 December 2018 in the Magistrates Court at Carnarvon the appellant was convicted on her plea of the breaches of the Extended VRO on 17 June and 7 October 2018. These convictions are the subject of the application in SJA 1126 of 2019. At the same hearing the appellant was convicted of certain other offences. The appellant was sentenced to a total effective term of imprisonment of 12 months with eligibility for parole. Eight months of the total sentence related to the breaches of the Extended VRO.
On 8 May 2019 in the Magistrates Court at Exmouth the appellant was convicted on her plea of the breach of the Extended VRO that took place between 16 and 23 August 2019 and a fine of $300 was imposed. This conviction is the subject of the application in SJA 1124 of 2019. When sentenced the appellant was serving the term of imprisonment imposed on 17 December 2018.
On 4 October 2019 the appellant filed notices of appeal in each matter.
On 16 October 2019 the appellant commenced proceedings in this court under s 36 of the Magistrates Court Act 2004 (WA) for a review order in respect of the Extended VRO. A review order was granted on 2 April 2020,[1] and an order setting aside the Extended VRO was made on 15 May 2020.[2]
[1] Re Magistrate R Johnston; Ex parte Jones [2020] WASC 107.
[2] Jones v Johnston [No 2] [2020] WASC 190.
It is helpful to summarise the reasons that led to the order setting aside the Extended VRO. I will begin by outlining the statutory regime that governed the application for the Extended VRO:
(a)Section 47(1) of the RO Act provides that if an application to vary a restraining order is made, the registrar of the Magistrates Court is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing.
(b)Section 48 of the RO Act governs what is to occur if a person summonsed to attend a hearing under s 47(1) does not attend. It provides, relevantly, that if the court is satisfied the summonsed person was served with a summons, the court is to hear the matter in the absence of the summonsed person, otherwise the court is to adjourn the hearing.
(c)Section 49 of the RO Act provides that at a hearing fixed under s 47 of an application to vary or cancel a restraining order, the court 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'.
At the hearing of the application to vary the restraining order on 29 September 2017, the magistrate proceeded to hear the application on the basis that the appellant had been served with a summons to attend the hearing, but there was no evidence before the court upon which the magistrate could have been satisfied of this fact. On this basis it was held the magistrate committed a jurisdictional error.[3] The order of 15 May 2020 giving effect to the court's reasons was expressed as follows:
Pursuant to s 36(4) of the Magistrates Court Act 2004 (WA) the order of Magistrate Raelene Johnston dated 29 September 2017 extending restraining order CA RO 97 of 2015 be set aside.
[3] 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).

Grounds of appeal

The grounds of appeal on which each application is based are identical. They are that the appellant's convictions on her own pleas each constitute a miscarriage of justice as the appellant could not in law have been guilty of the offence of breaching the Extended VRO.[4] The grounds are supported by particulars which assert the Extended Order was made without power or jurisdiction. The particulars also allege that the appellant was denied procedural fairness as she was not afforded the right to be heard in relation to the application for the Extended Order. In the course of the hearing of the application counsel for the appellant said that the denial of procedural fairness particular should more properly be treated as a separate ground of appeal but ultimately nothing turns on this.
[4] See Vella v The State of Western Australia [2006] WASCA 129 [26].

Overview of the parties' submissions

The appellant's submissions

The appellant submits she could not in law have been guilty of the offences of breaching the Extended VRO because it was not made within jurisdiction and had no legal force. She contends this is recognised as a circumstance which may result in a plea of guilty being set aside on appeal.[5]
[5] Borsa v The Queen [2003] WASCA 254 [20]; Vella v The State of Western Australia [26].
In support of her submission that the Extended VRO had no legal force the appellant relied on the observations made by Gageler J in The State of New South Wales v Kable [No 2],[6] and the decision of Martino J in Bindai v Armstrong.[7]The appellant contends that the convictions constitute miscarriages of justice and she is entitled to appeal on that basis: s 8(1)(b) of the Criminal Appeals Act 2004 (WA).
[6] The State of New South Wales v Kable [No 2] [2013] HCA 26; (2013) 252 CLR 118 [56].
[7] Bindai v Armstrong [2016] WASC 341 [17], [28] and [29].
In support of her procedural fairness contention the appellant referred to the decision of Bindai v Jugarie,[8] a decision of Bowden DCJ allowing an appeal in respect of a decision to grant a restraining order on the basis that the appellant had not received notice of the application. Bowden DCJ considered the fact that magistrate had made the order without the appellant having received notice of the application was an error made by the magistrate within jurisdiction.
[8] Bindai v Jugarie [2016] WADC 68.
In response to an argument raised by the respondents, the appellant submitted that the effect of the order setting aside the decision to grant the Extended VRO was that the decision was set aside ab initio and not merely from the date of the order, that is, 15 May 2020. The appellant acknowledged that the expression 'set aside' can have different meanings but submitted that in the context in which the 15 May 2020 order had been made, it connoted set aside ab initio. The appellant pointed to the fact the Extended VRO had expired by effluxion of time when the order was made and that the court was aware of this and aware that the present applications were on foot.

The respondent's submissions

The proposition central to the respondents' submissions was that even if the Extended VRO was vitiated by jurisdictional error, it was an order of the Magistrates Court with which the appellant was required to comply until it was set aside.
The respondents submitted that the order made on 15 May 2020 setting aside the Extended VRO was to be construed as an order which operated prospectively and not retrospectively and that this was so even though the Extended VRO had expired. The respondents relied on the observations of Pullin JA in Dreja v The State of Western Australia,[9] to the effect that the meaning of the expression 'setting aside' in an order will depend upon what is 'express or implicit in the particular order made'. I refer to Dreja in greater detail later in these reasons. The respondents relied also on the decision in Edwards v Simpson,[10] in which Jenkins J applied the ratio in Dreja.
[9] Dreja v The State of Western Australia [2012] WASCA 151 [17].
[10] Edwards v Simpson [2018] WASC 119 [67] - [68] upheld on appeal Simpson v Edwards [2018] WASCA 177.
The respondents accepted that, generally speaking, at common law an order of an inferior court made without jurisdiction is a nullity that lacks legal effectiveness for most, if not all, purposes. They contended, however, that a statute may confer some legal effect on an inferior court order vitiated by jurisdictional error, and supported that contention by reference to the reasons of the majority (Weinberg JA and Williams AJA) in the decision of the Victorian Court of Appeal in Director of Public Prosecutions v Edwards,[11] and the decision of the Court of Appeal in this State of Tulloh v CEO of the Department of Corrective Services.[12]
[11] Director of Public Prosecutions v Edwards [2012] VSCA 293; (2012) 44 VR 114.
[12] Tulloh v CEO of the Department of Corrective Services [2020] WASCA 10.
The respondents argued that an examination of the statutory context in which the decision to make the Extended VRO was made is required in order to determine whether the order was of some legal effect. The respondents contended that the overall purpose of the Act, being the protection of victims of violence or threatened violence, formed the basis of an implied presumption that orders made under the Act are valid unless and until they are set aside. Invoking s 18 of the Interpretation Act 1984 (WA), the respondents argued that interpreting the RO Act as containing such an implied presumption promoted the objects of the Act and should be preferred. They argued the protective purposes of the legislation would not be advanced if the validity of orders could not be known with certainty before review.
The respondents reinforced their submissions that the decision had some legal effect by reference to the existence of the right to appeal against restraining orders and variations to restraining orders conferred by s 64 of the RO Act.
The respondents raised a practical point and submitted that unless the interpretation of the Act contended for by them was accepted, protected people who had sought and obtained a restraining order from a court in good faith might, due to a court oversight, not in fact be protected. Moreover, such protected persons would have no notice of the lack of protection. The respondents argued that the alternative interpretation - that is the order made without jurisdiction had no effect - would encourage persons bound by restraining orders to ignore the orders if they believed that there was some procedural irregularity in the making of the order.

Consideration

The statutory framework

The civil jurisdiction of the Magistrates Court is governed by Pt 2 of the Magistrates Court (Civil Proceedings) Act 2004.The relevant provisions may be summarised as follows:
(a)Section 5 provides that the Magistrates Court's civil jurisdiction is as set out in the Act.
(b)Section 6 specifies various categories of 'claim' that fall within the civil jurisdiction of the Magistrates Court and specify those claims that the court does not have jurisdiction to deal with, for example, claims in which the title of land is in question and claims that the Building Commissioner or the State Administrative Tribunal have jurisdiction to deal with under the Building Services (Complaint Resolution and Administration) Act 2011.
(c) Section 8 provides that the Magistrates Court's civil jurisdiction includes any jurisdiction conferred on the court by a written law other than the Magistrates Court (Civil Proceedings) Act 2004, other than jurisdiction conferred on the court as a court of summary jurisdiction.
(d)Section 10(1) provides:
The Court has jurisdiction to decide whether a claim is or is not within the jurisdiction conferred by section 6 or the jurisdiction referred to in section 8.
Section 7A of the RO Act provides that an order imposing restraints may be made under the RO Act by a Magistrates Court hearing an application under, among other sections, s 45.

Did the order of 15 May 2020 set aside the Extended VRO retrospectively or only prospectively?

In Dreja, Pullin JA (with whom Newnes and Mazza JJA agreed) held that an order setting aside a suspended sentence order operated prospectively and that while the order was in force it still had to be obeyed. In the course of reaching this conclusion Pullin JA observed that the expression 'set aside', like the word 'quash' could mean set aside ab initio (in the sense of rendered null and void) or it could have the more limited meaning of set aside prospectively. When the expression was used in an order, the meaning depended upon what was 'express or implicit in the particular order made'.[13] His Honour held that as an order imposing a sentence of suspended imprisonment had an ongoing effect - it was executory or partly so until it was spent. Thus, ordinarily, an order made by an appeal court setting aside a suspended sentence order takes effect only to nullify the sentence from the date of the order.[14]
[13] Dreja v The State of Western Australia [17].
[14] Dreja v The State of Western Australia [15].
In my view the order of 15 May 2020 should be construed as setting aside the Extended VRO retrospectively. This conclusion flows from the combination of the following matters. By the time the 15 May 2020 order was made the Extended VRO had expired by effluxion of time. Courts will not grant relief in the form of judicial review if the relief would be inutile.[15] Setting aside the Extended VRO prospectively would have constituted relief that would have been inutile and the construction of the order should be approached on the basis the court would not make an order that was inutile. Conversely, the appellant's purpose of seeking to set aside the Extended VRO, and the utility in the court making such an order, is to be found in the present applications to which reference was made at [14] of the reasons for judgment,[16] (reference to the reasons for judgment being permissible when construing an order giving effect to the judgment).[17]
[15] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; [2013] 252 CLR 480 [25] (French CJ, Crennan, Bell, Gageler & Keane JJ).
[16] Jones v Johnston (No 2) [14].
[17] Russell v RCR Tomilinson [No 2] [2016] WASC 240 [55] - [63].
In expressing my conclusion as to the correct construction of the 15 May 2020 order I have not used the expression 'set aside ab initio' because it carries with it the connotation of 'null and void' of which Pullin JA spoke in Dreja. 'Null and void' and nullity express conclusions.[18] The expression of such conclusions tends to obscure the nature of the inquiry to be undertaken as to the consequences flowing from decisions to which the label of null and void is applied.
[18] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 [101] - [108] (Kirby J).
It was submitted on the appellant's behalf that, in effect, the appeal turned on the question of whether the 15 May 2020 order set the Extended VRO aside retrospectively. I do not agree. While it may seem anomalous that an order set aside retrospectively is capable of having any legal effect, setting aside an order leaves unresolved the question of what legal consequences, if any, flow from the fact the order was made. Setting the Extended VRO aside retrospectively does not mean it is to be treated as if it had never existed in fact. In this case the conclusion that the order of 15 May 2020 set aside the Extended VRO retrospectively does not provide an answer to the question of what legal consequences flow from the existence of the Extended VRO as a matter of fact. That is the question to which I now turn.

What legal consequences, if any, attached to the Extended VRO?

It is convenient to begin by referring to the statement of principle by Gageler J in The State of New South Wales v Kable [No 2] upon which the appellant relies. In the context of a discussion about the legal effect of judicial orders made without jurisdiction his Honour referred to the distinction between an order made by a superior court and one made by an inferior court and stated:[19]
... A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order 'must always remain an outstanding question' unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction. In contrast:
It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside.
[19] The State of New South Wales v Kable [No 2] [2013] HCA 26; (2013) 252 CLR 118 [56] (Gageler J).
The plurality in Kable [No 2] addressed what were described as the 'More fundamental considerations' bearing upon the validity of a relevant order made by a judge of the Supreme Court of New South Wales, and in doing so observed:[20]
There must come a point in any developed legal system where decisions made in the exercise of judicial power are given effect despite the particular decision later being set aside or reversed. That point may be marked in a number of ways. One way in which it is marked, in Australian law, is by treating the orders of a superior court of record as valid until set aside.
Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.
In this case, if the detention order made by Levine J was not effective until set aside, those apparently bound by the order were obliged to disobey it, lest they be held responsible for false imprisonment. On Mr Kable's argument, the order was without legal effect and should not have been obeyed. The decision to disobey the order would have required both the individual gaoler and the Executive Government of New South Wales to predict whether this Court would accept what were then novel constitutional arguments. More fundamentally, as the legal philosopher Hans Kelsen wrote, '[a] status where everybody is authorized to declare every norm, that is to say, everything which presents itself as a norm, as nul, is almost a status of anarchy'. (footnotes omitted)
[20] Kable [No 2] [38] – [40] (French CJ, Hayne, Crennan, Kiefel, Bell & Keane JJ).
Leeming JA, writing extra-curially,[21] cautioned against the superficial attraction of concluding that a decision affected by jurisdictional error is void or a nullity or no decision at all and observed:[22]
There is, necessarily more at stake merely than consideration of whether the court's order was wrongly made. The interests of justice include also those of the administration of law, 'there are many factors relevant to those matters, including the powerful considerations supporting the finality of judicial decisions'.
[21] Leeming MJ, Leeming Authority to Decide - The Law of Jurisdiction in Australia (2^nd ed, 2020) [3.7].
[22] Leeming MJ, Leeming Authority to Decide - The Law of Jurisdiction in Australia (2^nd ed, 2020) [3.7] citing R v Gregory [2002] NSWCCA 199 [41] (Hodgson JA, Levine & Simpson JJ agreeing).
In Appleyard v Walker[23] the Court of Appeal was concerned with the validity of a decision of a magistrate that determined a building dispute. The appellant, who had consented to the magistrate hearing and determining the building dispute, contended that the Magistrates Court did not have jurisdiction because the building dispute was a claim that fell within the jurisdiction of the Building Commissioner or the State Administrative Tribunal under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The respondent contended the appellant was estopped from challenging the jurisdiction of the Magistrates Court. In the course of dealing with the estoppel argument, McLure JA (as her Honour then was), with whom Pullin and Newnes JJA agreed, said:[24]
There are also authorities to the effect that if the jurisdiction of the court is limited by statute, it cannot be enlarged by estoppel: Welch v Nagy [1950] 1 KB 455; J & F Stone Lighting & Radio Ltd v Levitt [1947] AC 209. However, caution is required when considering statements in the authorities about estoppel. For example, in J & F Stone Lighting, which was relied on in Welch v Nagy, the court was referring to issue estoppel (and res judicata). The doctrines of res judicata and issue estoppel do not apply to a decision of an inferior court made without jurisdiction because, unless the statute conferring jurisdiction otherwise provides, the decision is a nullity: Bower GS, Turner AK and Handley KR, The Doctrine of Res Judicata (3rd ed, 1996) [110] ‑ [115]. The same is not true of a decision of a superior court of general jurisdiction. As Martin B said in Scott v Bennett (1871) LR 5 HL 234 at 245:
The Court of Common Pleas is one of the superior Courts of Record. It may be that the Act of Parliament did not justify it, but nevertheless the judges had perfect jurisdiction to make it; and the [order] being made by them, it is binding and conclusive on all the world unless it can be altered by appeal or error.
However, a decision of the Magistrates Court made without jurisdiction is not a nullity because it has statutory jurisdiction to make a binding decision on jurisdiction. Section 10(1) of the Magistrates Court Act provides:
The Court has jurisdiction to decide whether a claim is or is not within the jurisdiction conferred on it by section 6 or the jurisdiction referred to in section 8.
Thus, the magistrate's orders are valid and binding unless and until they are set aside. It follows that the principles of res judicata and issue estoppel apply to the magistrate's decision. The application of those principles would prevent the appellant from re‑litigating the issues in the Building Disputes Tribunal.
[23] Appleyard v Walker [2009] WASCA 141.
[24] Appleyard v Walker [20] - [21].
At [24] of McLure JA's reasons in Appleyard v Walker her Honour noted that the observations quoted in the preceding paragraph went to the merits of the appeal. Her Honour determined the application for leave to appeal on the basis that the appellant had not demonstrated that substantial injustice would be done by leaving the decision under appeal unreversed. On this basis McLure JA's observations on the effect of s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004 are obiter dicta.
Appleyard v Walker was not cited by either party and I invited the parties to make submissions on the relevance of the decision to the disposition of these applications.
The principal points that I distil from the appellant's submissions on Appleyard v Walker are threefold. First, Appleyard v Walker was concerned with the Magistrates Court's civil jurisdiction and care should be taken in applying McLure JA's statement when considering criminal liability for orders made without jurisdiction. The appellant submitted that when considering criminal liability, this court should apply the principle stated in the contempt cases (to which I refer below). Second, though, Appleyard v Walker suggests that an order made by the Magistrates Court without jurisdiction is valid and binding, s 10 of the Magistrates Court (Civil Proceedings) Act 2004 does not preclude an appeal in the event that an incorrect decision is made about jurisdiction nor does it prevent an application for judicial review. The appellant relied on the principle stated by Lord Irvine in Boddington v British Transport Police to the effect that the proper starting point must be a presumption that an accused should be able to challenge, on any ground the lawfulness of an order the breach of which constitutes an alleged criminal offence.[25] Third, ultimately the question remains whether the order of 15 May 2020 setting aside the Extended VRO was to act retrospectively (for the reasons given earlier, I do not accept that this is the ultimate question).
[25] Boddington v British Transport Police [1999] 2 AC 143, 162.
The respondents filed written submissions on Appleyard v Walker that canvassed the principles comprehensively (noting, amongst other matters, that no comparable interstate legislation contained a provision equivalent to s 10(1) of Magistrates Court (Civil Proceedings) Act 2004).The respondents noted that McLure JA's remarks were obiter but acknowledged that on the basis of her Honour's interpretation of s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004, it was open to this court to conclude that a decision of a magistrate as to the jurisdiction of the Magistrates Court in proceedings to which the MCCPA applies, is binding until set aside. The respondents posed the question of whether it could be said that the magistrate, in the course of making the Extended VRO, had exercised her jurisdiction under s 10(1). In answering this question the respondents acknowledged that it was arguably implicit in the magistrate's making of the Extended VRO that she had determined she had jurisdiction to do so (Re Macks; Ex parte Saint).[26]
[26] Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 [151] - [152], [341].
In Director of Public Prosecutions v Edwards the issue was whether a sentencing order of a judge of the County Court in Victoria made in excess of jurisdiction was null and void. If it was null and void (as Warren CJ held) the judge was not functus officio and could recall the order and re-sentence. Alternatively, if the order had some legal effect (as Weinberg JA and Williams AJA held) the judge was functus officio once the sentence had been entered into the record and it was not open to the judge to resentence.
Weinberg JA and Williams AJA drew on the reasoning of the High Court in Bhardwaj which, as described by Gleeson CJ in his judgment in that case, was concerned with:[27]
[A]n administrative tribunal's capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function.
[27] Director of Public Prosecutions v Edwards [178].
Their Honours noted the analysis of the judgments in Bhardwaj undertaken by Gray and Downes JJ in Jadwan v Secretary, Department of Health and Aged Care.[28] In Jadwan Gray and Downes JJ noted that only three of the seven judges in Bhardwaj had relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gray and Downes JJ identified the issue in Bhardwaj as one of statutory interpretation and that the legal consequences of a decision affected by jurisdictional error are to be determined by reference to the legislation creating the decision-making power.
[28] Jadwan v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1.
Weinberg JA and Williams AJA applied Bhardwaj, as interpreted by Gray and Downes JJ in Jadwan, and, from statutory provisions which enabled a judge to amend judgments or orders in (limited) specified circumstances (such provisions being comparable in nature to the slip rule), discerned:[29]
[A] legislative assumption that a court exercising criminal jurisdiction (at least, the County Court) cannot reopen matters and make new orders where, given that the first orders have entered into the record, the court is functus officio.
[29] Director of Public Prosecutions v Edwards [221].
Warren CJ undertook a review of the relevant High Court and intermediate appellate court authorities, including the decision in Appleyard v Walker, and stated:[30]
It follows from these authorities that, at common law an inferior court order made without jurisdiction is a nullity that lacks legal effectiveness for most, if not, all purposes. The principle applies to any kind of order, including sentencing orders.
From a practical and also a policy viewpoint the principles may be thought to be somewhat unsatisfactory. Its undesirable consequences are obvious. It potentially creates uncertainty for parties and other affected persons in the conduct of their affairs in reliance on an order. First, the principle means that an inferior court order is not only liable to be set aside on appeal or judicial review but that it may lack legal effectiveness ab initio. Thus, for example, in a particular instance a person to whom the order is directed may be able to disregard it with impunity. Secondly, the principal may open an inferior court order to collateral challenge outside of the time limits for judicial review.
…
In my view, there is much to be said for the proposition that the orderly administration of justice would be enhanced if inferior court orders were valid and effective until set aside. However, the contrary position is firmly entrenched in Australian law. It is recognised in the decisions of the High Court that are binding on this court. Furthermore, as a matter of comity, it is not possible to disregard the decisions of other intermediate appellate courts. If the position is to be re-considered, it could only be done by the High Court, or possibly by legislative amendment. (footnotes omitted)
[30] Director of Public Prosecutions v Edwards [39] - [42] (Warren CJ) and the authorities cited between [19] and [38].
Warren CJ noted that the High Court had not accepted what is sometimes called the 'theory of absolute nullity' and that an order made by an inferior court in excess of jurisdiction may have some legal effect for some purposes, for example, by treating it as an order that may be appealed against. Her Honour also noted the common law position may be modified by statute.[31]
[31] Director of Public Prosecutions v Edwards, [45], [51].
Before leaving Warren CJ's judgment in Director of Public Prosecutions v Edwards, I note that among the authorities reviewed by her Honour was the decision of the High Court in Pelechowski v Registrar of the NSW Court of Appeal[32] (upon which the appellant relies) in which it was held that a person who disobeyed an injunction granted by the District Court of New South Wales, acting without jurisdiction, could not be guilty of a contempt of court. Although, in dissent in the result, McHugh J stated the principle as follows:
A long line of cases establishes that an order made by an inferior court, such as the District Court, will be null and void if that Court did not have jurisdiction to make the order. Those decisions also hold that such an order cannot found a prosecution for contempt.
[32] Pelechowski v Registrar of the NSW Court of Appeal [1999] HCA 19; (1999) 198 CLR 435.
In Bindai v Armstrong, Martino J applied the dictum of Gageler J in Kable [No 2] relied on by the appellant. Like the present case, Bindai v Armstrong involved an appeal from a conviction for breach of a restraining order affected by jurisdictional error. Martino J noted the respondent conceded that the restraining order was made without jurisdiction and was of no legal force. On that basis his Honour held the appellant could not in law have been guilty of the offence of breaching the order. It does not appear that the decision of the Court of Appeal in Appleyard v Walker or s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004 was drawn to Martino J's attention.
In Tulloh v Chief Executive Officer of the Department of Corrective Services,[33] the question was: what was the legal effect of an invalid decision to cancel an early release order made by the Prisoners Review Board? Le Miere J reviewed the decision of the High Court in Bhardwaj,[34] and the decision in Jadwan, and summarised the effect of those decisions as follows:[35]
First, an administrative decision which involves jurisdictional error is legally invalid. Secondly, an administrative decision which is legally invalid does not necessarily have no legal effect unless and until it is set aside or declared to be invalid. Thirdly, whether a legally invalid decision has any relevant legal effect before it is set aside or declared to be invalid depends upon the statutory framework under which and the context in which the decision is made.
[33] Tulloh v Chief Executive Officer of the Department of Corrective Services [2018] WASC 105.
[34] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.
[35] Tulloh (trial decision) [28].
Le Miere J's analysis of what was to be drawn from the decisions in Bhardwaj and Jadwan was ultimately not challenged on appeal and the Court of Appeal approved his Honour's reasoning. In upholding Le Miere J's decision the Court of Appeal concluded that the word 'cancelled' in the relevant statutory provision meant cancelled in fact, not validly cancelled. The Court of Appeal reached this conclusion following a consideration of the relevant provision in its statutory context.
Although Bhardwaj and Tulloh concerned decisions of administrative tribunals, in Director of Public Prosecutions v Edwards, Warren CJ expressed the view that the reasoning underlying the position in Bhardwaj applied with equal force to inferior courts,[36] and noted that Hayne J had made that plain in the course of his reasons in Bhardwaj.
[36] Director of Public Prosecutions v Edwards [69], [74] - [75] citing Hayne J in Bhardwaj.
In determining the legal effect of the Extended VRO when it was made I apply the principles stated by Le Miere J (and approved by the Court of Appeal) in Tulloh. I am required to consider the statutory framework under which, and in the context of which, the decision was made.
In this case s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004 is a notable feature of the statutory framework. It is significant in two respects: first, because it relates of the authority of Magistrates Court to make determinations as to its jurisdiction, and secondly, it is relevant to the analysis to be undertaken in accordance with the principles in Tulloh as to whether decisions of the Magistrates Court affected by jurisdictional error are effective at law and if so to what extent.
Dealing with the issue of the Magistrates Court's jurisdiction first. I accept that McLure JA's observations on the effect of s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004 cited above were obiter dicta. They were not, however, some passing remarks. They formed part of a considered line of reasoning with which Pullin and Newnes JJA agreed. They are observations of significant persuasive authority from which a judge sitting at first instance should not lightly depart. Moreover, with respect, in my view the construction of s 10(1) adopted by the Court of Appeal is the correct one. As the respondents noted in their further written submissions on Appleyard v Walker, an inferior court always has authority or jurisdiction to determine its own jurisdiction. The distinction between an inferior court and a superior court is that the latter has authority to make a binding determination as to its jurisdiction but the former does not. If s 10(1) is not read as conferring a power on the Magistrates Court to make a binding determination as to its own jurisdiction, it does no work because it would simply duplicate the implied grant of jurisdiction which every court has to determine its own jurisdiction.

In making the Extended VRO the magistrate by necessary implication made a determination about the jurisdiction of the Magistrates Court and because the Magistrates Court has statutory jurisdiction to make a binding decision on jurisdiction, her Honour's decision was binding.
Accordingly, in my view the appellant was obliged to comply with the Extended VRO before it expired by effluxion of time. Consequently, as a matter of law, the appellant was capable of being convicted of breaches of the Extended VRO even though the order was made without jurisdiction.
In the context of this case the appellant's reliance on the fact that she was denied procedural fairness is another ground on which it was open to her to set aside the magistrate's decision as affected by jurisdictional error. It does not, however, advance the appellant's case on the critical issue of the legal effect of the Extended VRO until it was set aside. Even if the decision of the magistrate to make the Extended VRO is looked at solely from the perspective of a denial of procedural fairness, to which s 10(1) of the Magistrates Court (Civil Proceedings) Act 2004 had no direct application in the context of a consideration of the principles stated in Tulloh, s 10(1) is a strong and, in this case, sufficient indication of a legislative intention that decisions of the Magistrates Court affected by jurisdictional error are effective at law and must be obeyed until set aside.

Conclusion

In each application I will grant the appellant an extension of time within which to bring her application and will grant leave to appeal but will dismiss the appeals.

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
19 NOVEMBER 2020