Re Magistrate G Benn; Ex parte Gething
[2019] WASC 380
•15 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE MAGISTRATE G BENN; EX PARTE GETHIN [2019] WASC 380
CORAM: ARCHER J
HEARD: 15 OCTOBER 2019
DELIVERED : 15 OCTOBER 2019
FILE NO/S: CIV 2760 of 2019
MATTER: An application under s 36 of the Magistrates Court Act 2004 for a review order against Gregory Andrew Benn, a magistrate of the Magistrates Court at Joondalup
EX PARTE
GENEVIEVE GETHIN
Applicant
Catchwords:
Review order - Interim family violence restraining order - Turns on its own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application for review order dismissed
Category: B
Representation:
Counsel:
| Applicant | : | S J H Gethin |
Solicitors:
| Applicant | : | Fortuna Legal |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Laurent v Fates [2015] WASCA 226
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357
Re Magistrate Roth; Ex parte Yahiya [2016] WASC 284
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Strahan v Brennan [2014] WASC 190
ARCHER J:
(This judgment was delivered extemporaneously on 15 October 2019 and has been edited from the transcript.)
Introduction
This is an application for a review order under s 36(1)(c) of the Magistrates Court Act 2004 (WA) and O 56A r 2 of the Rules of the Supreme Court 1971 (WA).
The applicant seeks a review of an interim family violence restraining order made by his Honour Magistrate Benn on 2 July 2019 against the applicant for the benefit of her brother, Agustin Ramos, under the Restraining Orders Act 1997 (WA).
Mr Ramos sought the restraining order because he claimed that his sister (the applicant in these proceedings) was communicating with him in an intimidating and abusive manner by phone calls, text messages and emails. The communications related to the way in which he was caring for their father, who was then in a nursing home.
The applicant initially sought a review order on the ground that the magistrate made an error of law on the face of the record. The error was alleged to be that the magistrate applied the wrong meaning of the expression 'family violence' when making the review order in giving his reasons.
The applicant filed her submissions in support of the application on the morning of the original hearing date.[1] In those submissions, the applicant indicated that she intended to seek to amend her application to include an allegation that the magistrate acted without jurisdiction. It was alleged that Mr Ramos' application for a restraining order did not identify any act which could arguably constitute 'family violence' and that he had not given evidence of any act that could arguably constitute 'family violence'.
[1] The hearing was adjourned for one day after the submissions were received.
Legal framework
Section 36 of the Magistrates Court Act is a statutory judicial review power.[2] It relevantly provides:
[2] Rayney v AW [2009] WASCA 203 [27].
(1)If a person is or would be aggrieved by one or more of the following ‑
(a)the failure of a Court officer to do any act or make any order or direction ‑
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make ‑
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer ‑
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may ‑
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may ‑
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
…
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)(a), (b) or (c) was made. To fall within s 36(1), the error must be either a jurisdictional error[3] or an error of law on the face of the record.[4]
[3] As to which, see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163] and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[4] Re Magistrate D Temby; Ex parte Stanton [2015] WASC 357 [33], [35], [39] ‑ [53]. See also Rayney [27] ‑ [34] and Ashwin v Housing Authority [2019] WASC 144 [3] ‑ [9].
In Re Magistrate D Temby; Ex parte Stanton,[5] Beech J (as his Honour then was) said that 'the record' generally does not include the reasons for decision (and did not in the case before him).
The Restraining Orders Act
[5] Stanton [39].
Family violence is defined in s 5A of the Restraining Orders Act. Section 5A relevantly provides:
(1)A reference in this Act to family violence is a reference to -
(a)violence, or a threat of violence, by a person towards a family member of the person; or
(b)any other behaviour by the person that coerces or controls the family member or causes the member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) the following -
…
(c)stalking or cyber‑stalking the family member;
(d)repeated derogatory remarks against the family member;
…
Cyber‑stalking is defined in s 3(1) to mean:
… stalking, monitoring the movement or communications of, or repeatedly communicating with or harassing, the person using electronic means.
The word 'fearful' is not defined in the Restraining Orders Act. The Concise Oxford English Dictionary (12th ed, 2011) defines fearful as '1. showing or causing fear 2. (informal) very great'. The Oxford English Dictionary (2nd ed, 1989) defines fearful as '1. Causing fear; inspiring terror, reverence or awe, terrible, awful. 2. Applied to bad or annoying things in intensive sense. 3. Frightened, timorous, timid, apprehensive. 4. Of looks, words etc … indicating or giving signs of fear or terror. 5. Cautious, wary. 6. Full of awe or reverence'.
Mr Ramos' application for a restraining order
Mr Ramos' application for a restraining order was not attached to the applicant's affidavit in support of her application for a review order, but was attached to her submissions filed the morning of the original hearing. When I raised this with counsel for the applicant, he offered to provide an affidavit formally proving that application. However, this is not necessary. I will assume for present purposes that the document I have been given is Mr Ramos' application.
Mr Ramos' application for the restraining order is in the prescribed form, and appears to have been completed on 26 June 2019.[6] In it, Mr Ramos alleged that his sister had repeatedly breached a mutual undertaking they had filed in 2013, and had 'continued with her threats, intimidation, harassment, emotional abuse and defamatory allegations'. He alleged that he had moved home and blocked her mobile number to try to prevent her from contacting him.
[6] See page 5 of his application.
Mr Ramos alleged his sister had, among other things, 'left several abusive voice mails', including one the morning he completed the application, which he described as 'abusive, intimidating and threatening'.
The acts described in Mr Ramos' application were capable of meeting the definition of family violence. What he described was, in effect, repeated communications to him by electronic means, falling within the definition of cyber-stalking. Cyber‑stalking is an example of conduct that may constitute 'family violence' as defined. Although Mr Ramos did not use the word 'fear' in his application, the tenor of his complaint was that his sister's conduct had caused him fear.
The evidence before the magistrate
On 28 June 2019, Mr Ramos swore an affidavit in support of his application for a family violence restraining order and attested to its accuracy in his oral evidence.
In that affidavit, Mr Ramos said he was asking for the order because of his sister's 'ongoing acts of intimidation, emotional abuse, harassment, fear and threats' which she had made against him and his family. He said that he wanted 'me and my family to be allowed to live our lives without the fear of being subjected to the respondent's conduct'.
Mr Ramos outlined in his affidavit several specific incidents by way of example. He alleged that he had received voicemail messages which were 'horrible, verbally abusive, defamatory, intimidating and threatening'. He alleged that his sister had done this most recently on 26 June 2019, two days before he swore his affidavit, leaving an intimidating and threatening message on his mobile's voicemail and also on his elderly mother‑in‑law's voicemail.
Mr Ramos said that his sister had also attempted, on numerous occasions, to contact him on his mobile by using a private number which showed no caller ID. He said that as soon as he answered the phone and recognised her voice, he would hang up immediately.
Mr Ramos also complained about communications made by his sister to his elderly mother‑in‑law, his father's nursing home, the police and the RSPCA. He said that his sister's actions made him and his family feel, among other things, intimidated, fearful and threatened.
In his oral evidence, Mr Ramos referred to a voice message he had received the morning of the hearing. The recording was played in court. The magistrate described that voicemail in the following terms:[7]
On the one hand, it might be interpreted as something fairly innocuous, apart from the comments at the end about your father haunting you, and noting that the phone call came in at 1 am in the morning.
[7] ts 8, 2 July 2019.
Mr Gethin submitted that the magistrate was wrong to find that the voicemail was left at 1.00 am. The transcript of the hearing before the magistrate suggests that the recording indicated that it was made at 7.51 am. Assuming that the magistrate erred in finding it was made at 1.00 am, this would, of course, be an error within jurisdiction. It was not suggested otherwise.
In his evidence, Mr Ramos claimed he could provide a hundred SMSs and a hundred emails. He gave evidence that he and his family had blocked his sister from their mobile phones but she defeated that measure by calling from a different telephone so that the call was not blocked and no caller ID was displayed.
Mr Ramos' evidence, if accepted, was capable of meeting the definition of family violence. He gave evidence of a large volume of communications (cyber‑stalking), which he claimed intimidated him and caused fear.[8] What he was fearful of was not directly explored. At least in one respect, it appeared that he did not like his sister telling him how to look after his father and felt defamed by the things that his sister was saying to the parish priest and the police. Neither of those feelings would cause the conduct to constitute 'family violence'. However, Mr Ramos also gave evidence that he took steps to ensure his sister did not find out where he lived and said 'I'm always in fear, looking behind my shoulder, you know'.[9]
[8] See ts 5 and 8, 2 July 2019.
[9] ts 8, 2 July 2019.
The magistrate's reasons
The magistrate said that he was ultimately satisfied that the sister had been engaging in 'acts of family violence in the form of behaving in (indistinct) manner, having regard to [Mr Ramos'] descriptions, as being offensive and emotionally abusive' and noted the voicemail from that morning. The magistrate said that Mr Ramos had been unsuccessful in his attempts to block his sister from telephoning him and was getting a 'barrage' of communications that were having a significant impact on his welfare and wellbeing. The magistrate said that he was therefore 'satisfied that [the sister's] behaviour as a whole constitutes family violence under the broad definition of the Restraining Orders Act'.
Error of law on the face of the record
Even if the reasons do form part of the record, I would not be satisfied that the applicant had established an arguable case that the magistrate applied the wrong meaning of 'family violence'.
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[10] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[11]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[10] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[11] Strahan v Brennan [90].
The learned magistrate did not set out the definition of family violence, nor did he cast his reasons by using the words of the definition. However, he was clearly aware that it was defined in the Restraining Orders Act, noting, correctly, that it was defined broadly under the Act.
Although the learned magistrate did not actually use the word 'fearful' in his reasons, Mr Ramos said in his evidence that he was fearful as a result of his sister's conduct. In referring to the 'barrage' of communications and the significant impact on Mr Ramos' welfare and wellbeing, I would infer that the magistrate accepted Mr Ramos' evidence and concluded that the large number of communications (cyber‑stalking) had caused Mr Ramos to be fearful. This would meet the definition of family violence.
I am therefore not satisfied that the applicant has established an arguable case that the magistrate applied a meaning of 'family violence' different to the definition contained in s 5A.
Jurisdictional error
The applicant submitted that a restraining order was analogous to criminal proceedings. She referred, among other things, to the requirement that a prosecution notice must identify the alleged offence with sufficient particularity. She submitted that the analogous civil requirement was that pleadings must disclose a cause of action.
The analogy is inapt. An applicant for a restraining order may elect to have the first hearing held in the absence of the respondent,[12] as Mr Ramos did in this case. If an order is made at such a hearing, it will be an interim order.[13] The criminal law requirements are directed to ensuring that the accused knows what he or she is accused of. Such a goal has no application to an ex parte process.
[12] Section 26 of the Restraining Orders Act.
[13] Section 29(3) of the Restraining Orders Act.
The applicant points out that, if the subject of an interim restraining order (respondent) objects to a final order being made, a hearing will be listed.[14] The applicant submits that it is therefore necessary that a restraining order application identify, with some specificity, one or more events which could arguably constitute family violence. However, the purpose of the Restraining Orders Act is, among other things, to protect people from family violence. The criminal law's concern to ensure that an accused person has a proper opportunity to defend him or herself does not have the same force in this context. In my view, all that is required is that the respondent in a final order hearing knows in general terms what he or she is alleged to have done.
[14] Section 33 of the Restraining Orders Act.
In this case, Mr Ramos' application alleged that his sister had repeatedly communicated with him by email and voicemail message. He identified a voicemail left on 26 June 2019 which he described as 'abusive, intimidating and threatening'. As noted earlier, the acts described in Mr Ramos' application were capable of meeting the definition of family violence. What he described was, in effect, cyber‑stalking and, although Mr Ramos did not use the word 'fear' in his application, the tenor of his complaint was that this had caused him fear. In my view, Mr Ramos' application sufficiently identified the conduct said to constitute family violence so as to give his sister a fair opportunity to object to a final order being made.
Further, a respondent to an interim restraining order is entitled to receive a copy of any affidavit received in evidence.[15]
[15] Section 44B of the Restraining Orders Act, subject to s 70 which prohibits the disclosure of information that may reveal the whereabouts of the applicant.
In his affidavit, Mr Ramos complained about voicemail messages, text messages, emails and telephone calls. He gave specific examples of several incidents and dated the most recent of them. Again, what he described was, in effect, cyber‑stalking. Mr Ramos said that this conduct caused, among other things, fear. Accordingly, his claims, if accepted, would permit a conclusion to be drawn that his sister had engaged in family violence. In my view, Mr Ramos' affidavit sufficiently identified the conduct said to constitute family violence so as to give his sister a fair opportunity to object to a final order being made.
The applicant also referred to s 17(1)(b) and s 17(1)(e) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) which give the court the power to strike out 'case statements' that do not disclose any reasonable grounds for the claim (s 17(1)(b)) or which is frivolous, vexatious, scandalous or improper (s 17(1)(e)). However, during the hearing, counsel for the applicant said that he did not contend that Mr Ramos' application was frivolous, vexatious, scandalous or improper, but simply contended that it did not disclose any reasonable grounds for the claim.
It is unnecessary to decide whether proceedings conducted in the Magistrates Court pursuant to the Restraining Orders Act are proceedings in which the Magistrates Court is exercising its civil jurisdiction.[16] This is because, even assuming that they are, and even assuming that an application for a restraining order in the form prescribed could be characterised as a 'case statement' as defined by the MCCP Act,[17] s 17(1)(b) would not apply. Mr Ramos' application does disclose reasonable grounds for his claim.
[16] See Laurent v Fates [2015] WASCA 226 [47], holding it was at least arguable.
[17] Case statement means a statement of a party's claim, or of a party's defence, whether as originally lodged with the court or as amended or as supplemented by additional information given voluntarily or as ordered by the court.
I am not satisfied that the applicant has established that it is arguable that the magistrate made a jurisdictional error. Each of Mr Ramos' application for a restraining order, his affidavit and his oral evidence identified acts which could constitute family violence. The magistrate clearly accepted Mr Ramos' allegations, including that his sister's conduct had caused him fear. Review proceedings do not permit an evaluation of the merits of a matter. In the hearing for final orders, it will be open to the applicant to challenge Mr Ramos' assertions as to her conduct and his assertion that it caused him fear, as distinct from irritation or anger.
Discretionary considerations
Even if I had found there to be an arguable case of error, I would not have exercised my discretion to make a review order.
The restraining order is only an interim order.
The applicant was served with it on 4 July 2019. She did not file anything in relation to this application until 17 September. Although she has explained this delay (on the basis of incorrect legal advice from her lawyer husband and a misunderstanding about the date of the substantive hearing in the Magistrates Court to determine final orders), it is a significant delay.
Further, when the application was finally filed on 4 October 2019 with a request for an urgent hearing, the court listed the matter for 9 October. The applicant asked that it be postponed for a week to enable her more time to prepare, and it was relisted to 15 October 2019. Submissions were not filed until that morning, and the matter was adjourned to the following day. Those submissions sought to add an entirely new ground of review, as I have explained.
The substantive hearing of the restraining order is listed for 22 October 2019. Even if a review order was made, it is highly unlikely that it could be heard and decided before 22 October 2019. This is particularly given that it would be necessary to give adequate notice to the magistrate and Mr Ramos of the hearing.[18] The only realistic option, if a review order was made, would be to stay the Magistrates Court proceedings, preventing the matter proceeding on the date that it was listed and then, if the interim restraining order was not set aside after the hearing of the review order, the parties would be at the mercy of the Magistrates Court's ability to find an alternative date further in the future for the matter to be finally determined.
[18] See s 36(1) of the Magistrates Court Act and O 56A r 2(2) of the Rules of the Supreme Court.
Further, I note that the applicant is entitled to seek a variation of the interim order under s 45 of the Restraining Orders Act. If such an application is made, leave may be granted by the Magistrates Court to continue that application if it is satisfied that, relevantly, there is evidence to support a claim that the restraints imposed by the order are causing the applicant serious and unnecessary hardship and that it is appropriate that the application is heard as a matter of urgency.[19] The affidavit of the applicant sets out the considerable restraints and concerns that she feels she is exposed to as a result of the interim order, all of which could have been addressed by seeking a variation. The only matter that could not have been addressed by a variation is the fact that an interim order has been made, being something that the applicant considers, understandably, is a reflection on her character.
[19] Section 46(4)(a)(iii) of the Restraining Orders Act.
Alternative claims
The applicant next seeks, in the alternative, an order that the application be treated as an appeal against the restraining order under s 40(1)(a) of the MCCP Act.
Under s 36(5)(b) of the Magistrates Court Act, I have the power to order that the application be treated as an appeal if I consider that an appeal lies against the restraining order under the MCCP Act in respect of that order.
For the same reasons as refusing to make a review order, I would not order that the application be treated as an appeal.
This also disposes of the second alternative order sought by the applicant that, if the matter proceeds as an appeal, there be an extension of time within which to appeal.
Stay
Finally, the applicant seeks an interim order to stay the operation of the restraining order. As I have declined to make a review order, there is no power to stay the operation of the restraining order.[20]
[20] Order 56A r 3(3)(d) of the Rules of the Supreme Court and Re Magistrate Roth; Ex parte Yahiya [2016] WASC 284 [82].
Conclusion
Accordingly, I dismiss the application for a review order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Archer22 OCTOBER 2019
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