Natale & Anor v Burton
[2002] WASCA 284
•18 OCTOBER 2002
NATALE & ANOR -v- BURTON [2002] WASCA 284
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 284 | |
| Case No: | SJA:1083/2002 | 15 OCTOBER 2002 | |
| Coram: | ROBERTS-SMITH J | 18/10/02 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | EDDIE NATALE TERRASE BROWN MALCOLM BURTON |
Catchwords: | Appeal Misconduct restraining orders Orders made in absence of party Party present outside court Orders set aside by Magistrate and hearing ordered Whether order setting aside valid Justices Setting aside of orders made in absence of party Whether power under section 136A Justices Act 1902 (WA) Justices Setting aside of orders made in absence of party Whether exercise of power to cancel or vary under Part 5 Restraining Orders Act 1997 (WA) Whether original orders made within jurisdiction when party in precincts of court |
Legislation: | Justices Act 1902 (WA), s 136A Restraining Orders Act 1997 (WA), s 38, s 39, s 40, s 41, s 42, s 45, s 46, s 47 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- TERRASE BROWN
Appellants
AND
MALCOLM BURTON
Respondent
Catchwords:
Appeal - Misconduct restraining orders - Orders made in absence of party - Party present outside court - Orders set aside by Magistrate and hearing ordered - Whether order setting aside valid
Justices - Setting aside of orders made in absence of party - Whether power under section 136A Justices Act 1902 (WA)
Justices - Setting aside of orders made in absence of party - Whether exercise of power to cancel or vary under Part 5 Restraining Orders Act 1997 (WA) - Whether original orders made within jurisdiction when party in precincts of court
(Page 2)
Legislation:
Justices Act 1902 (WA), s 136A
Restraining Orders Act 1997 (WA), s 38, s 39, s 40, s 41, s 42, s 45, s 46, s 47
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellants : Mr B D Havilah
Respondent : In person
Solicitors:
Appellants : Bruce Havilah & Associates
Respondent : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: On 30 May 2002 the respondent Mr Malcolm Burton was served by a police officer with two restraining order summonses (Nos PE 1293 and 1294 of 2002 respectively) issued out of the Perth Court of Petty Sessions under the Restraining Orders Act 1997 (WA) seeking a misconduct restraining order against the respondent. The first was issued on behalf of Mr Eddie Natale and the second was issued on behalf of Ms Terrase Brown. The grounds of each application alleged that the respondent was likely to behave in a manner that is intimidating or offensive to the appellant and/or behave in a manner that is, or is likely to lead to, a breach of the peace. The particulars given in support of these grounds were that:
"The respondent continually makes unfounded complainst (sic) to the local authority resulting in unnecessary disturbances to the applicants' quiet enjoyment of his (sic) property. The respondent has breached the peace by deliberately aggravating the applicants' dogs and by inciting neighbours to make complaints."
2 Each summons required the respondent to attend the Perth Court of Petty Sessions at 30 St George's Terrace, Perth on 6 June 2002 at 10 am.
3 On that date the learned Magistrate, Mr Packington SM, in the absence of the respondent, made the misconduct restraining orders sought ("the original orders"). A couple of hours later, after the appellants and their solicitor had left the court, the respondent and his wife appeared before the learned Magistrate. In light of the explanation the respondent then gave, his Worship set aside the restraining orders made earlier that morning, ordered a re-hearing and adjourned the application to a later date for mention when a hearing date would be set.
4 By letters dated 6 June 2002, the Clerk of the Perth Court of Petty Sessions ("the Clerk") advised each appellant that:
"… the respondent … today made an application for re-hearing under section 136A of the Justices Act. The application was granted and the previous orders made were set aside.
The matter has now been adjourned for mention only to 27 June 2002 at 9.30 am."
5 On 27 June 2002 the appellants filed an application for leave to appeal to this Court. The application was supported by the affidavit of Bruce Douglas Havilah sworn 28 June 2002.
(Page 4)
6 On 15 July 2002 McLure J ordered the appellants to file a copy of proof of service on the respondent of the details of the hearing on 6 June 2002. Certified copies of the summonses were subsequently annexed to affidavits of Kevin William Parsons sworn on 23 July 2002.
7 On 5 August 2002, Pullin J granted the application for leave to appeal on a number of grounds, the substance of which was that the learned Magistrate erred in ordering pursuant to s 136A of the Justices Act 1902 (WA), that the original orders be set aside and the applications be re-listed for hearing. His Honour also made certain procedural directions including directions as to the service of that order on the respondent and the filing of appeal books seven days before the date fixed for the hearing of the appeal.
8 On 12 September 2002, Barker J granted an application by the appellants for a variation of the orders made by Pullin J extending the time for service and for entry of the appeal for hearing. It appears that order was made necessary because it had proved not possible to extract a sealed copy of the order for service upon the respondent within the time set. No point is taken about that.
9 By Monday 14 October 2002, the day before the appeal was to be heard, no appeal book, outline of submissions, nor list of authorities had been filed. When my Associate queried this with Mr Havilah he advised that the solicitor from his office who had been handling the matter had been hospitalised the previous Wednesday and was then recuperating at home after surgery. He advised he would be seeking an adjournment.
10 When the appeal came on for hearing as listed, on 15 October, counsel for the appellants applied for an adjournment. That application was strongly opposed by the respondent. The application was refused for reasons which I then gave. I then heard argument on the appeal, notwithstanding the appellant's failure to file the appeal book.
The appeal
11 The appellant's grounds of appeal are:
"(a) The learned Magistrate erred in permitting the Respondent to re-hear the applications 1293 / 02 and 1294 /02 pursuant to section 136A of the Justices Act 1902; and / or accordingly
(Page 5)
- (b) The learned Magistrate erred in failing to direct the Clerk to prepare and serve the Misconduct Restraining Orders after hearing the matter in the absence of the Respondent under section 40(2)(a) of the Restraining Orders Act 1996; and / or alternatively
(c) The learned Magistrate misdirected himself in (sic) that he had the power under section 136A of the Justices Act 1902 to reverse his decision made pursuant to section 40(3)(a) of the Restraining Orders Act 1996; and / or alternatively
(d) The learned Magistrate erred in his application of section 136A of the Justices Act, in that he set aside his previous decision in default of the Respondent's appearance without requiring the Respondent to make a written application served on the Clerk of Petty Sessions in accordance with section 136(A)(1) of the Justices Act 1902; and / or alternatively
(e) The learned Magistrate erred in his application of section 136A of the Justices Act 1902, in that he set aside his previous decision in default of the Respondent's appearance without requiring the Respondent to follow the correct procedure in section 136A(2), (3) and (4) of the Justices Act 1902; and/ or alternatively
(f) The learned Magistrate erred in not requiring the Respondent to make an application to vary or cancel the Misconduct Restraining Orders pursuant to Part V (sic) of the Restraining Orders Act 1996 for variation of an Order,
(g) The learned Magistrate erred in not directing the aggrieved party to follow the correct appeal procedure prescribed under section 64 of the Restraining Orders Act 1996 for appealing a decision already issued."
12 In his affidavit sworn 28 June 2002, Mr Havilah deposes that on 6 June 2002 at 9.30 am he attended the ninth floor of the Perth Court of Petty Sessions with his clients. He states that the respondent was not at the court at 9.30 am and was not present when the matter was called. He does not say what time that was. He states the matter was called on after at least one other matter before it. He deposes that he then moved the
(Page 6)
- court for issue of the misconduct restraining orders and the learned Magistrate granted that application. He then spoke to his clients for several minutes outside the court explaining the significance of the orders. As he walked with his clients towards the elevator, they pointed out two people whom they identified as being the respondent and his wife. The appellants and Mr Havilah were able to avoid them.
13 Mr Havilah then deposes that subsequently his clients received advice from the Clerk of Court in the form of the letters to which I have already referred. In addition to those letters, he annexed to his affidavit a copy of the transcript of the proceedings when the misconduct restraining orders were made ("the first proceedings") and also a copy of the transcript of the later proceedings when the learned Magistrate set aside those orders ("the second proceedings").
14 The transcript of the first proceedings began in the following way:
"MR HAVILAH: Good morning, your Worship. May it please you, Mr Havilah for the applicants, both of whom are here before the court.
HIS WORSHIP: Yes, Mr Havilah. I'm sorry, what was their names?
MR HAVILAH: The names are Natale, N-a-t-a-l-e and Brown, B-r-o-w-n versus Burton, B-u-r-t--o-n, the respondent. Two individual applications, sir.
HIS WORSHIP: Yes, I have them.
MR HAVILAH: I understand they've been served, your Worship probably has some verification of that, but I did ring the court and confirmed that was the case.
HIS WORSHIP: Yes, there is proof of service.
MR HAVILAH: May it please you, sir, in the absence of the respondent, I would seek that the interim orders that have been taken out to be made final orders. I beg your pardon, they're not interim orders - -
HIS WORSHIP: No, there hasn't been an order at all.
MR HAVILAH: - - being misconduct restraining orders, of course there are no interim orders. I'm thinking of VRO's. But
(Page 7)
- anyway, I seek that those orders be made final. I'd also make an application for costs, sir, if you'd entertain one." (My emphasis)
15 There is nothing on the transcript to indicate the time at which those proceedings commenced, nor is there anything to indicate that the name of the respondent was called.
16 Following those opening remarks, the appellants' counsel explained to the learned Magistrate the basis upon which the orders were being sought and what conduct of the respondent the appellants were seeking to restrain.
17 His Worship then simply granted the orders sought, specifically setting out the conduct which was being restrained.
18 The appellants' counsel then made submissions in support of his application for costs as a consequence of which his Worship fixed costs in the sum of $350 on each application.
19 The matter was then stood down, but again the transcript does not indicate at what time.
20 The transcript of the second proceedings begins in the following way:
"CLERK OF COURT: Apparently Mr Burton was seated outside all morning, sir. And he wasn't called for some reason and the matter was brought early.
HIS WORSHIP: Yes, all right. Mr Burton I'll just get you to go in the witness-box and take the oath, and you can tell me where you were.
MALCOLM GEORGE BURTON sworn:
HIS WORSHIP: Yes, could you state your full name, please?---My full name is Malcolm George Burton.
You live at 33 Parkwood Avenue?---33 Parkwood Avenue.
Yes. Now, you came into court this morning for the hearing of an application for a misconduct restraining order against you, is that right?---Yes, correct.
(Page 8)
- Could you just tell me where you were between say, 9.45 and 10 o'clock this morning?---At 9.45 we probably would have been entering the building at that time, we came up to level 9 and we told the lady in reception near the lift that we had arrived.
Yes?---She marked my name off.
All right?---And then we were advised that we were to go through a security check of our valuables.
Mm hm?---And I did that at about 5 to 10. sorry, about 10 to 10 and sat down at about 5 to 10, about I think it was four or five seats from Court 94, with our back towards the entrance to 94, yes.
Yes?---And we were sat down at 5 to 10 at the very latest, and we did not hear my name called or that of the applicant. We did not move from those seats, we stayed there right until 11.30 when we asked one of the court orderlies out there, would they kindly explain when we were likely to be heard. And they came on and told us that the hearing had been already finished with.
Yes. All right, thanks, Mr Burton. If you'd just like to go back down there. If we set another date then - -
WITNESS WITHDREW
MR BURTON: Excuse me, sir - -
HIS WORSHIP: Yes?
MR BURTON: I wonder if I could just point out that on this document here it says 10 am.
HIS WORSHIP: Yes, I understand that. Yes.
MR BURTON: We were told by the lady who was in here that she called for people at 9.30. And we certainly were here before 10 o'clock.
HIS WORSHIP: Yes. No, that's all right. Have you any idea how long this hearing will take if it is to be heard again. How many witnesses do you have?" (My emphasis)
(Page 9)
21 There was then some further discussion between the respondent and the learned Magistrate as to how long the hearing might take and his Worship then ordered that "the application for re-hearing" be granted, that the restraining orders issued that morning be set aside and the applications be adjourned to 27 June 2002 for mention.
22 There had of course, been no express application by the respondent for the earlier orders to be set aside, nor that the applications be re-heard. Furthermore, as the respondent pointed out in his submission to me, the learned Magistrate made no mention of s 136A of the Justices Act at all.
23 The first mention of s 136A came in the letter to the appellants from the Clerk of Court, who no doubt simply assumed that was the basis upon which the learned Magistrate had acted. In fact his Worship had made no reference to the source of his power for setting aside the earlier orders and nor did he give any reasons for doing so - no doubt because in the circumstances, he thought the reasons were obvious.
24 The appellants' submissions may I think, fairly be encapsulated in the following propositions, namely that:
1. Section 136A of the Justices Act did not apply to this situation because that covers criminal prosecutions and any application to set aside or vary a misconduct restraining order can be made only under, and in accordance with, the provisions of the Restraining Orders Act.
2. Even if s 136A of the Justices Act did apply, the learned Magistrate had no power to make the re-hearing orders because the requirements of that section had not been complied with.
3. The learned Magistrate had no power to set aside the original orders under the Restraining Orders Act because the requirements of that Act had not been complied with.
Whether s 136A of the Justices Act applied
25 Section 136A(1) provides that:
"136A (1) Where, after the coming into operation of the Justices Act Amendment Act 1957, a decision is given by justices pursuant to jurisdiction conferred on them by this Act, but in default of appearance by the complainant or by the defendant, the party who did not appear may, within 21 days next after the giving of the decision, or within such further
(Page 10)
- period as the court may direct, serve on the clerk of petty sessions of the court in which the decision was given, notice in writing of his intention to apply to the court to set the decision aside, and of the grounds of the application."
26 By subs (2), on service of the applicant's notice and payment of such fee as may be required, the Clerk of Court is to appoint a time and place for the hearing of the application and is to notify the applicant in writing.
27 Subsection (3) requires the applicant to enter into a recognisance within three days of receiving the notice of hearing on the condition they appear before the court, submit to its judgment and pay such costs as may be awarded.
28 On a giving of a recognisance under subs (3), execution is stayed until the application is disposed of or the court otherwise orders.
29 Subsection (4) of s 136A provides that:
"(4) At the time and place appointed by the clerk of petty sessions for the hearing of the application, the court of petty sessions shall, if the applicant, does not appear, strike out the application and, if he does appear, proceed to hear the application and may -
(a) refuse the application to set aside the decision; or
(b) adjourn the hearing of the application to a time and place appointed by the court, and direct that the applicant give to the other party written notice of the time and place so appointed by the court and that the other party may, if he thinks fit, then and there appear to oppose the application, and the court may at the time and place appointed by the court set aside the decision in respect of which the publication is made on such terms as the court thinks fit, or the court may refuse to set aside the decision; and
(c) in any case, make such order as to cost as the court thinks fit."
(Page 11)
30 Subsection (5) sets out what is to happen if the application to set aside the decision is refused and the applicant had been released from custody on recognisance pending the decision.
31 Finally, subs (6) stipulates that the provisions of that section are in addition to, and not in derogation of, any of the provisions of Part VII of the Justices Act. That part contains provisions dealing with appeals from decisions of Courts of Petty sessions.
32 Section 136A appears in Part VI of the Justices Act.
33 Section 134 sets out the powers of the court if on the date and at the time and place appointed by a summons for hearing and determining a complaint of a simple offence "or other matter", the defendant attends but the complainant does not.
34 Section 135 sets out the options open to the court if at the time and place appointed by summons for the hearing and determining of a complaint of a simple offence, the defendant does not appear.
35 In s 136 a procedure is set out for circumstances in which a person on whom a summons for a simple offence is served may, if they wish to plead not guilty to the charge set out in the summons, endorse the summons to that effect.
36 By s 136AA it is provided that if a complaint has been made by a person who is a public officer acting in the course of that officer's duties and the court proceeds to hear and determine the complaint in the absence of the defendant, the court in so doing may take as proved any allegation in the summons served on the defendant in relation to the complaint.
37 Those sections and the sections which immediately follow s 136A of the Justices Act (s 136B - s 143) are all clearly directed to the procedure for dealing with complaints of summary offences and complaints of a like nature.
38 The initiating document for a misconduct restraining order is not a complaint under the Justices Act but an application under s 38(2) of the Restraining Orders Act (see Form 2 in Schedule 1 to the Restraining Orders Regulations 1997).
39 Restraining orders are of two kinds, described as violence restraining orders and misconduct restraining orders.
(Page 12)
40 Misconduct restraining orders are dealt with in Part 3 of the Restraining Orders Act.
41 A misconduct restraining order is an order made under s 36 of the Restraining Orders Act. Such an order may be made by a Court of Petty Sessions on the application of the person to be protected or by certain persons acting on behalf of that person (s 38 Restraining Orders Act).
42 Section 39 stipulates that if an applicant makes an application for a misconduct restraining order, the Clerk is to fix a hearing and summons the respondents to the hearing. What is meant by "fixing a hearing" is defined in s 9 of the Restraining Orders Act, which so far as is presently relevant reads:
"9(1) If a clerk is to fix a hearing and summons a person to the hearing, the clerk is to -
(a) fix a day, time and place for the hearing;
(b) prepare a summons in the prescribed form;
(c) cause the summons to be served on the person; and
(d) notify all other parties of the hearing."
"40 (1) If an applicant does not attend a mention hearing, the court-
(a) if it is satisfied the applicant was notified of the hearing, is to dismiss the application; or
(b) otherwise, is to adjourn the hearing.
(2) If the respondent does not attend a mention hearing and the applicant does attend, the court-
(a) if it is satisfied the respondent was served with the summons requiring the respondent to attend the hearing, is to hear the matter in the absence of the respondent; or
(b) otherwise, is to adjourn the hearing.
(Page 13)
- (3) When hearing a matter in the absence of the respondent, the court is to
(a) make a restraining order;
(b) dismiss the application;
(c) direct the clerk to fix a hearing and summons the respondent to attend the hearing; or
(d) adjourn the mention hearing.
(4) The clerk is to prepare and serve an order made under subsection (3)(a)."
44 "Mention hearing" is defined in s 3 as meaning a hearing fixed under s 23(2), s 26(3), s 29(2) or s 39.
45 If at a mention hearing the respondent consents to a final order being made, the court may make that order by consent "without being satisfied there are grounds for making the order" (s 41(1)). However, if a consent order is not made at the mention hearing, the court is to direct the Clerk to fix a hearing and summons the respondent to attend that hearing. The second hearing is what is described in the Act as a "final order hearing", defined in s 3 as meaning a hearing fixed under s 33(1), s 40(3) or s 41(4).
46 Subsection (1) of s 42 deals with the situation if an applicant does not attend a final order hearing. Subsection (2) of s 42 covers the situation where a respondent does not attend such a hearing but the applicant does. It provides that the court:
"(2) (a) if it is satisfied that the respondent was -
(i) in the case of a hearing fixed under section 33, notified of the hearing; or
(ii) in the case of a hearing fixed under section 40(3)(c) or 41(4), served with a summons requiring the respondent to attend the hearing,
is to hear the matter in the absence of the respondent; or
(b) otherwise, is to adjourn the hearing.
(Page 14)
- (3) At a hearing under subsection 2 the court may receive as evidence any record of evidence given (including any affidavit filed) at a prior hearing in relation to the matter."
47 Part 5 of the Restraining Orders Act deals with variation or cancellation of restraining orders. Such an application may be made by (inter alia) the person protected by the order. An application to vary or cancel a final order is to be made in the prescribed form to the court that made the final order (s 45(4)). Sections 46 to 49 inclusive set out further provisions relating to applications for variation or cancellation of restraining orders.
48 The submission put here on behalf of the appellants is that given the terms of s 136A of the Justices Act itself, that section does not apply to orders made under the Restraining Orders Act and that in any event, the detailed procedure for cancellation or variation of restraining orders set out in Part 5 of the Restraining Orders Act, which was enacted after the Justices Act, evinces a clear legislative intent that the only procedure available for cancellation or variation of such orders is to be that in the later Act.
49 The starting point must necessarily be the terms of s 136A of the Justices Act itself. It is to be noted that the section applies to "a decision … given by Justices pursuant to jurisdiction conferred on them by this Act …"
50 The term "Justices" includes a Magistrate (s 4 of the Justices Act).
51 Section 15 of the Justices Act states that Justices shall have, and may exercise within and for their jurisdiction, the powers and authorities conferred upon them by the Justices Act or any other Act or by a General Commission of the Peace. The general jurisdiction of Justices is set out in s 20, which authorises Justices to hear and determine trials for offences made punishable under summary conviction. Stipendiary Magistrates are empowered to do alone whatever might be done by two or more Justices sitting in Petty Sessions (s 33(1)). (For convenience I shall henceforth simply refer to the "Court" or the "Court of Petty Sessions" to describe the persons exercising judicial power under the Justices Act or the Restraining Orders Act).
52 In my view the answer to the first issue raised necessarily follows from the express terms of s 136A itself: the decision made by the learned Magistrate in this case was not made pursuant to any jurisdiction conferred upon him by the Justices Act, but rather pursuant to jurisdiction
(Page 15)
- conferred upon him specifically by the Restraining Orders Act. That conclusion is sufficient to uphold the point. Beyond that however, I do accept the appellant's further submission that the provisions of Part 5 of the Restraining Orders Act do evince a legislative intention to cover the situation where an order has been made in the absence of a party under that Act. The structure of the Restraining Orders Act is clearly intended to provide a comprehensive framework for the making of restraining orders, including their variation and cancellation, in circumstances in which even final orders are made in the absence of a respondent. I accept the submission made on behalf of the appellants that s 136A of the Justices Act did not apply to the circumstances before the learned Magistrate.
Whether s 136A of the Justices Act was complied with
53 In light of the foregoing conclusion, the appellants' next submission becomes otiose. Nonetheless, it is certainly the situation that if that conclusion were wrong and s 136A did apply, then the requirements of that section had not been met in this case.
54 Where s 136A of the Justices Act applies, a party who did not appear, who had an order made against them in their absence and who wishes to have that decision set aside, must serve on the Clerk of Court within 21 days, notice of their attention to apply to the court to have the decision set aside and setting out the grounds of that application (s 136A(1)). The range of requirements set out in the following subsections as to refusal of the application by the court without the attendance of the other party, or alternatively, adjournment of the hearing and written notice to the other party of the time and place of the adjourned hearing so that party may appear to oppose the application, all make it abundantly clear that the legislature did not intend a Court of Petty Sessions to have any power to vary or cancel a decision made in the absence of a party without giving the other party notice and an opportunity to be heard. That was not the procedure followed in this case and accordingly even if s 136A did apply to the circumstances here, its requirements had not been complied with. It accordingly afforded no authority to the learned Magistrate to make the re-hearing order he did in this case.
(Page 16)
Whether a re-hearing order could properly be made under the Restraining Orders Act
55 The statutory scheme for variation or cancellation of a final order made under the Restraining Orders Act has some characteristics similar to s 136A of the Justices Act.
56 It requires the making of a written application in the prescribed form (s 45(4)). The Clerk is then to fix a hearing at which the court is to consider whether to grant leave for the person to continue the application (s 46(1)). That hearing is held in the absence of the protected person. At that hearing the court is to grant leave for the person to continue the application for variation or cancellation only if satisfied there has been a substantial change in the relevant circumstances since the final order was made (s 46(4)(a)). If leave is granted, another hearing date is to be fixed to which the protected person (or person acting on their behalf) is to be summonsed. Once again, the clear legislative intent is that no order to vary or cancel a final order made under the Restraining Orders Act is to be made unless written notice of that application is given to the protected person and they are given an opportunity to attend a hearing to oppose the making of it. Again, that was not done in this case. The procedure under Part 5 of the Restraining Orders Act accordingly afforded no power for the making of the re-hearing orders here. But that is not the end of the matter.
Whether original orders properly made
57 As observed above the learned Magistrate made no express reference to any statutory provision or power upon which he was relying to make the re-hearing orders. He simply made them on the basis of his own knowledge of what had transpired and in light of the circumstances explained to him on oath by the respondent.
58 In short compass, the salient facts were that:
• The summonses served on the respondent required him to appear at the Perth Court of Petty Sessions at 10 am on 6 June 2002.
• He and his wife did so attend and were seated immediately outside the courtroom not later than 9.55 am.
• In the meantime, and unbeknown to the respondent and his wife, the parties had been called outside the courtroom either at or shortly after 9.30 am. The respondent was not there at that time.
(Page 17)
- • The application was the second case dealt with by the learned Magistrate. The first one was apparently quite brief, having taken only a few minutes. There is no indication that the present parties' names were called in the precincts of the courtroom. The application was dealt with in the respondent's absence.
• The respondent waited outside the court for his name to be called. When it had not been called by about 11.30 am, he enquired when the application was likely to be heard and was told it had already been dealt with.
These circumstances were conceded by Mr Havilah as being accurate so far as he was aware. There was no dispute about them.
59 The provisions of the Restraining Orders Act set out quite detailed and specific requirements for the giving of notice by way of summons to a respondent against whom a misconduct restraining order is sought to be made. In this case the Clerk, in compliance with s 9 and s 39 of the Restraining Orders Act, fixed 6 June 2002 at 10 am at the Perth Court of Petty Sessions as the day, time and place of the hearing of the application.
60 That was a "mention hearing" within the meaning of s 40 of the Restraining Orders Act.
61 Under s 40(2), if a respondent does not attend a mention hearing and the applicant does, the court may do either of two things: If satisfied the respondent was served, the court may hear the matter in the respondent's absence; alternatively, if not so satisfied, the court is to adjourn the hearing.
62 There are two important points to be discerned here insofar as the conduct of these proceedings was concerned.
63 First, a court may make a restraining order in the absence of a respondent at a mention hearing under s 40(3) only if the respondent (who has been duly served) does not attend. In context, "attend" must mean attend in compliance with the summons. In this case whether or not the respondent's name was called outside the court between 9.30 and 9.55 am is not clear; what is clear (and seems to be common ground) is that the matter was - or at least the appellant's names were - called shortly after 9.30 am. That was some 30 minutes before the time at which the summons required the respondent's attendance. The respondent did attend in compliance with the summons. He was where he was required to be, at the time he was required to be there. The fundamental requirement for the exercise of jurisdiction for the Magistrate to proceed in the absence of the
(Page 18)
- respondent under s 40(2) (namely, that the respondent was not in attendance in accordance with the summons) therefore had not been met. The learned Magistrate accordingly had no jurisdiction to make the original orders in the first place and they were therefore invalid. His Worship in effect recognised that by formally ordering that they be set aside once the circumstances were revealed to him, and he was correct in so doing.
64 But there is another basis upon which the original orders could not stand.
65 If the respondent does not attend, but the applicant does and the court is satisfied the respondent was properly served, the court:
"… is to hear the matter in the absence of the respondent."
66 When hearing the matter, the court may (inter alia) make a restraining order. Such orders were purportedly made in the course of the first proceedings.
67 The section does not permit the court make such an order without hearing the matter. The legislative intent is made clear from the terms of s 41 which enables a court to make a final order by consent of the respondent and in those circumstances may do so "without being satisfied there are grounds for making the order". This suggests that an order can be made in the absence of a respondent only if (the court otherwise having power) the court is satisfied there are grounds for making it.
68 Thus, the court may make a final order at a mention hearing only if the respondent is present and consents. If the respondent is not present, the court may nonetheless make a restraining order under s 40(3)(a) (note, not a "final order") but is then to direct the Clerk to fix a hearing and summons the respondent to attend that hearing (s 41(4)). At that hearing - which is a "final order hearing" under s 42 - the court, if satisfied the respondent was served with a summons, must hear the matter in the absence of the respondent. In that event the court may receive as evidence any record of evidence given (including any affidavit filed) at a prior hearing.
69 The terms of s 40(2) and (3) in the context in which they appear, require a "hearing" by the court before any action may be taken under s 40(3). That connotes the placing before the court of sufficient evidentiary material to enable the court to be satisfied of the matters of which it is required to be satisfied under s 30 and s 35 of the Restraining
(Page 19)
- Orders Act. It would not necessarily require the taking of oral evidence from the applicant or his or her witnesses - although it would no doubt often, and perhaps usually, be done that way. Evidence by affidavit would no doubt suffice in the circumstances. In the present case however, no evidence at all was put before the learned Magistrate in support of the applications. There was simply a short statement from the bar table, expressed in the broadest possible terms, of what the appellant's complaints were and what conduct they were seeking to have restrained. In my view, what took place was not a "hearing" of the matter in any sense and that being so, the learned Magistrate had no power to make them for that reason also.
70 In the circumstances, the original orders were a nullity and the learned Magistrate was correct to set them aside and order the applications be listed for mention and subsequent hearing.
71 The appeal must be dismissed.
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