Re Magistrate G Mignacca-Randazzo
[2018] WASC 157
•11 MAY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE MAGISTRATE G MIGNACCA-RANDAZZO; EX PARTE CHOWN [2018] WASC 157
CORAM: TOTTLE J
HEARD: 11 MAY 2018
DELIVERED : 11 MAY 2018
FILE NO/S: CIV 1720 of 2018
MATTER: An application under the Magistrates Court Act 2004 section 36 for a review order against Magistrate Giuseppe Mignacca-Randazzo, Magistrate of the Magistrates Court at Armadale.
EX PARTE
SANDRA LEANNE CHOWN
Plaintiff
Catchwords:
Judicial review - Application for review order - Review of Magistrate's decision not to make final restraining order - Whether jurisdictional error - Whether stay of proceedings justified - Meaning of Restraining Order Final Order Directions Hearing
Legislation:
Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 3, s 10B, s 24A, s 26, s 27, s 29, s 31,
s 33, s 42, s 64
Rules of the Supreme Court 1971 (WA), O 56A
Result:
Application and stay granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Bradley |
Solicitors:
| Plaintiff | : | Gosnells Community Legal Centre |
Case(s) referred to in decision(s):
Abbott v Magistrate Malley [2012] WASC 420
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Kickett v Starr [2013] WADC 52
Rayney v AW [2009] WASCA 203
Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357
Re Magistrate P Roth; Ex Parte Yahiya [2016] WASC 284
Re Potter; Ex parte Coppin [2013] WASC 462
Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360
Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7
Stewart v City of Belmont [2013] WASC 366
TOTTLE J:
(These reasons were delivered extemporaneously on 11 May 2018 and have been edited from the transcript of that hearing).
Introduction
This is an application brought by an originating motion dated 24 April 2018 for a review order under s 36 of the Magistrates Court Act2004 (WA) (Magistrates Court Act), and a stay of the proceedings which are to be held in the Armadale Magistrates Court on 16 May 2018. The decision which is the subject of this application was made by a Magistrate on 4 December 2017 in purported exercise of the jurisdiction conferred upon the Magistrates Court by the Restraining Orders Act 1997 (WA) (Restraining Orders Act). The applicant alleges that she is aggrieved by the learned Magistrate's decision and relies upon both s 36(1)(a)(i) and s 36(1)(b)(i) of the Magistrates Court Act for review of that decision.
For the reasons which follow, I will grant the review order as well as the stay of the proceedings which are to be held in the Armadale Magistrates Court on 16 May 2018.
Legal principles
The jurisdiction of this court to make a review order under the Magistrates Court Act is governed by O 56A of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court). As is required by O 56A r 2(1)(a), this application has been brought on an ex parte basis.
Section 36 of the Magistrates Court Act
The relevant provisions of s 36 of the Magistrates Court Act are as follows:
(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.
The proper construction and operation of s 36 of the Magistrates Court Act was explained by McLure JA (Buss & Newnes JJA agreeing) in Rayney v AW.[1] The power in s 36 of the Magistrates Court Act is a judicial review power.[2] The power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.[3] A review order can only be made if the threshold for an error of a type identified in s 36(1)(a), (b) or (c) is satisfied.[4]
[1] Rayney v AW [2009] WASCA 203.
[2] Rayney v AW [27].
[3] Rayney v AW [28], [32], [34].
[4] Rayney v AW [31].
In Re Magistrate D Temby; Ex Parte Stanton,[5] Beech J, as his Honour then was, held in relation to the threshold requirement that 'the appropriate analogy for the test for determining whether a review order should issue is with an application for an order nisi'.[6] That means that it is necessary for the applicant to establish, at least, an arguable case that an error of a type identified in s 36(1)(a), (b) or (c) was made.[7]
The scope of errors encompassed by s 36(1) Magistrates Court Act
[5] Re Magistrate D Temby; Ex Parte Stanton [2015] WASC 357.
[6] Re Magistrate D Temby; Ex Parte Stanton [34], citing Saldanha v Fujitsu Australia Ltd (No 2) [2011] WASC 360 [61] (Corboy J); Re Potter; Ex parte Coppin [2013] WASC 462 [29].
[7] Re Magistrate D Temby; Ex Parte Stanton [35].
As Beech J observed in Re Magistrate D Temby; Ex Parte Stanton, a demonstration of an error of law is not sufficient to make out an error of a type identified in s 36(1)(a), (b) or (c), unless the error of law is on the face of the record. Generally, the record does not include reasons for decision.[8]
[8] Re Magistrate D Temby; Ex Parte Stanton [39].
His Honour went on to state:[9]
[9] Re Magistrate D Temby; Ex Parte Stanton [40] - [45].
Section 36(1)(a) refers to the failure of a court to do an act or make an order or direction on the ground that the officer is under a duty to do the act or make the order or direction, or on any ground that might have justified a writ of mandamus.
…
In essence, s 36(1)(a) is addressed to a situation where the court fails to perform a duty. If the magistrate had refused to entertain the application, s 36(1)(a) may well have come into play. It does not come into play in circumstances where a magistrate makes a discretionary decision about which an applicant is aggrieved.
In the context of s 36(1)(a)(i) a magistrate cannot be said to be under a duty to decide each matter according to law.
…
As McLure JA observed in Rayney v AW,[10] at common law there are narrow grounds for the judicial review of decisions of inferior courts. The following passage from Craig v The State of South Australia explains the position:[11]
'In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.'
The purpose of s 35 and s 36 of the Magistrates Court Act was to replace the common law prerogative writs with a statutory alternative applying in those situations in which the specified prerogative writs would have been available, but free of the technical requirements of prerogative writs.[12]
The nature of the error sufficient to give rise to the availability of judicial review is no mere technical requirement. Section 36 is not intended to effect a radical expansion of the grounds of review of a decision of a magistrate. Errors of law not evident on the face of the record can only be addressed through the normal appellate process.[13] (footnotes in original)
[10] Rayney v AW [26].
[11] Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 - 180 (Brennan, Deane, Toohey, Gaudron & McHugh JJ).
[12] Rayney v AW [27].
[13] Abbott v Magistrate Malley [2012] WASC 420 [13] (EM Heenan J); Stewart v City of Belmont [2013] WASC 366 [31] (Martin CJ).
Background
On 16 October 2017, the applicant made an application in the Armadale Magistrates Court for a family violence restraining order pursuant to s 24A of the Restraining Orders Act against her former partner, the respondent in this matter.
On 18 October 2017, the applicant's family violence restraining order application was heard in the absence of the respondent, pursuant to s 26(2) and s 27(1) of the Restraining Orders Act. On that occasion, the court made an interim family violence restraining order (the interim restraining order) for the applicant's protection, pursuant to s 29(1)(a) of the Restraining Orders Act.
There is no doubt that the interim family violence restraining order was served because the respondent objected to the order being made final, as he was entitled to do, pursuant to s 31 and s 33(1)(a) and (b) of the Restraining Orders Act.
The Registrar of the Magistrates Court fixed a hearing to be held at 9.00 am on 4 December 2017, and notice was given to both the applicant and to the respondent, pursuant to s 33(1)(a) of the Restraining Orders Act. That notice, which was annexed to an affidavit sworn by the applicant, advised the parties that the matter had been listed on 4 December 2017 for what was described as a 'Restraining Order Final Order Directions Hearing'.[14] The notice which was sent to the respondent also contained the following statement:[15]
If you do not attend the court hearing, a final restraining order may be made in your absence.
[14] Affidavit of Sandra Leanne Chown filed 24 April 2018, Attachment 'SLC-6'.
[15] Affidavit of Sandra Leanne Chown filed 24 April 2018, Attachment 'SLC-6'.
I note that the Restraining Orders Act does not provide for a hearing termed a 'Restraining Order Final Order Directions Hearing'. Counsel for the applicant informed me that the practice of regional Magistrates Courts is to give notice of a 'Restraining Order Final Orders Directions Hearing' even though such a hearing does not form part of the statutory scheme established by the Restraining Orders Act.
On 4 December 2017, the applicant attended the Armadale Magistrates Court. There was no appearance by the respondent. The matter was called on before the Magistrate, who informed the applicant that:[16]
You made an application for an interim family violence restraining order which was granted on 18 October 2017. The matter has been directed by the Registrar to be listed today for what's called a restraining order final order hearing direction, and obviously you've responded to that notification.
[16] ts of hearing AR RO 863 of 2017 held at Armadale Magistrates Court on 4 December 2017, page 2.
After some exchanges with the applicant, the Magistrate then said:[17]
It appears that a notice was sent to the respondent by ordinary prepaid post. You may or may not have had any information, but do you know why he may not have attended court today?
[17] ts of hearing AR RO 863 of 2017 held at Armadale Magistrates Court on 4 December 2017, page 2.
The applicant responded 'no'.[18] The Magistrate then said:[19]
All right. Now, procedurally, I can't make the order final today, although he hasn't attended. What has to happen procedurally is that the matter has to be listed for a final order hearing on a date in the future that suits you. You will get notification of that hearing, although you will hear me tell you today what that date is. And there will be a notification of the hearing sent again to [the respondent]. You, of course, will continue in the meantime to have the protection of the interim family violence restraining order.
[18] ts of hearing AR RO 863 of 2017 held at Armadale Magistrates Court on 4 December 2017, page 2.
[19] ts of hearing AR RO 863 of 2017 held at Armadale Magistrates Court on 4 December 2017, page 2.
Following some exchanges about dates and what would take place at the further hearing, his Honour adjourned the hearing to 16 May 2018. The learned Magistrate explained to the applicant that at the next hearing she would need to be prepared for a final hearing.
Applicant's submissions
The applicant argues that the hearing held on 4 December 2017 was itself a final order hearing. The applicant points to the definition of final order hearing, which is contained in s 3 of the Restraining Orders Act. That definition provides that a 'final order hearing' means a hearing fixed under s 33(1), s 40(3), s 41(4) or s 43A(7)(b) of the Restraining Orders Act.
The applicant says that the hearing fixed by the Registrar for 4 December 2017 was fixed under s 33(1) of the Restraining Orders Act and was therefore a final order hearing. That submission appears to me to correctly reflect the statutory scheme. As I have already mentioned, the scheme established by the Restraining Orders Act does not make provision for a 'Restraining Order Final Order Directions Hearing'.
Section 42 of the Restraining Orders Act
The next step in the applicant's argument requires consideration of s 42 of the Restraining Orders Act. Section 42(1) is not relevant to this application. Sections 42(2) and (3) are, however, crucially relevant to this application and are as follows:
42.Attendance at final order hearing
…
(2)If a respondent does not attend a final order hearing and the applicant does attend, the court -
(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), 41(4) or 43A(7)(b), served with a summons requiring the respondent to attend the hearing,
is, subject to subsection (3), to hear the matter in the absence of the respondent; or
(b)otherwise, is to adjourn the hearing.
(3)If -
(a)a respondent does not attend a final order hearing; and
(b)the applicant does attend; and
(c)the court is satisfied in accordance with subsection (2)(a); and
(d)an earlier restraining order is in force in respect of the matter,
the court is to make a final order in the same terms as the earlier order unless any new ground or matter is raised by the applicant at the final order hearing.
The applicant first directs attention to s 42(2), which she says applies because the respondent did not attend the final order hearing that had been listed for 4 December 2017, but she, as the applicant, did attend. The applicant says that the court was evidently satisfied that the respondent was notified of that hearing and that thus, subject only to s 42(3), the court was required to hear the matter in the absence of the respondent.
The applicant submits that the terms of s 42(2) are mandatory in their nature. If the court is satisfied, or is satisfied of either of the matters set out in s 42(2)(a)(i) or (ii), the court is required to hear the matter in the absence of the respondent. There is no discretion to adjourn the application. On the other hand, if the court is not satisfied of either of the matters set out in s 42(2)(a)(i) or (ii), the court is required to adjourn the hearing pursuant to s 42(2)(b).
The applicant then directs attention to s 42(3). The applicant says that the four matters specified in s 42(3)(a) - (d) were satisfied. In this case, s 42(3)(a): the respondent did not attend the final order hearing; s 42(3)(b): the applicant had attended the hearing; s 42(3)(c): the court was satisfied, in accordance with s 42(2)(a), the respondent was notified of the hearing; and finally, s 42(2)(d): there was an earlier restraining order in force in respect of the matter, that being the interim family violence restraining order which was made on 18 October 2017.
The applicant contends that in those circumstances the court was required, pursuant to s 42(3) to make a final order in the same terms as the order that had been made on 18 October 2017, because no new ground or matter had been raised by the applicant.
Was the hearing on 4 December 2017 a final order hearing?
In my judgment, the hearing on 4 December 2017 was a final order hearing. The evidence establishes that notice of the hearing was given pursuant to s 33(1) of the Restraining Orders Act. Thus, the hearing listed for 4 December 2017 which took place on that date meets the definition of a final order hearing as defined in s 3 of the Restraining Orders Act.
It is irrelevant as a matter of law that the hearing may have been described as a 'Restraining Order Final Order Directions Hearing' in the notice given by the Registrar because no hearing of that nature is contemplated or provided for by the Restraining Orders Act.
I draw support for that observation from the decision of Derrick DCJ, as his Honour then was, in the case of Kickett v Starr.[20] In that case, his Honour considered an issue concerning directions hearings in the context of applications made under the Restraining Orders Act that had arisen in very similar circumstances to the present application.
[20] Kickett v Starr [2013] WADC 52.
His Honour referred to the fact that notice of a final order hearing was given in the following terms:[21]
Please Note: This Hearing is 'A MENTION ONLY' (YOUR ATTENDANCE IS REQUIRED)
[21] Kickett v Starr [6] (Derrick DCJ).
His Honour recited that he had been told in the course of the hearing that notices of that nature were routinely given by the Registrars of the Magistrates Court and that the purpose of giving such notices was to provide the opportunity for respondents to indicate whether he or she or they object to the order becoming final, and to inquire at the mention hearing if the parties have resolved their differences.[22] His Honour observed that he could appreciate the pragmatism of that approach, but doubted whether it was authorised by the relevant provisions of the Restraining Orders Act.[23]
[22] Kickett v Starr [7] (Derrick DCJ).
[23] Kickett v Starr [7] (Derrick DCJ).
His Honour made observations to the effect that whatever the label the court may have ascribed to the hearing, that label did not determine the nature of the hearing.[24] His Honour expressed the view that even though the hearing had been given the label of a 'Mention Only' hearing, his Honour thought the better view was that the hearing was a final order hearing, fixed by the Registrar of the court, pursuant to s 33(1) of the Restraining Orders Act. His Honour did, however, decline to express a definitive conclusion on the point, as it was not necessary for him to do so.[25]
[24] Kickett v Starr [7] (Derrick DCJ).
[25] Kickett v Starr [7] (Derrick DCJ).
Similarly, on this application it is not necessary for me to express a final or definitive view, but my provisional view is that the hearing on 4 December 2017 was a final order hearing, as a matter of law, irrespective of the label that had been ascribed to it by the Registrar. The applicant says that the Magistrate was under a duty to make a final order at the hearing on 4 December 2017. Additionally, the applicant submits that the Magistrate had no power, that is, no jurisdiction, to adjourn the matter to 16 May 2018 as he did.
The applicant contends that each of those decisions reflect jurisdictional error on the part of the learned Magistrate which constitute grounds of review for the purposes of s 36 of the Magistrates Court Act. The applicant submits that she has demonstrated that her application has reasonable prospects of success.
Disposition
In my judgment, the applicant has demonstrated that the application has reasonable prospects of success and that the learned Magistrate made jurisdictional errors, because he did not exercise the jurisdiction that was conferred on him by the Restraining Orders Act. For the purposes of this application it is not necessary to go beyond expressing that tentative or provisional conclusion.
There are perhaps two further points that I should mention in relation to this application and to the submissions that have been made. First, the applicant has drawn my attention to the appeal provisions contained in the Restraining Orders Act, but submits that this is not a case in which there was any right of appeal. This is because no final restraining order was either made or refused. The appeal provisions, which are found in s 64 of the Restraining Orders Act, only provide for appeals in respect of decisions 'to make, vary or cancel a final order, to refuse to make, vary or cancel a final order, or to make any other order in relation to a final order'.[26] The order that was made on 4 December 2017 does not fit within any of those categories therefore there was no right of appeal.
[26] Restraining Orders Act 1997 (WA) s 64(1)(b)(i), (ii), (iii).
Second, I should address the apparent delay in the bringing of this application. The decision of the learned Magistrate to adjourn the hearing was made on 4 December 2017, and this application for a review order was filed with this court on 24 April 2018. I was informed by Mr Bradley, counsel for the applicant, that he was first consulted by the applicant immediately after the hearing on 4 December 2017. There was a need to obtain the transcript of the hearing on 4 December 2017, and it took some time for the applicant, who is and was unemployed at that time, to find the funds to pay for the transcript.
The applicant had also left the country and returned to New Zealand, her country of origin, to seek sanctuary with her family in the face of the violence she alleged she had suffered at the hands of the respondent. This meant that communications with her were made more difficult. Mr Bradley informs me that the transcript was obtained in February 2018, and following further communications between Mr Bradley and the applicant, this application was brought on 24 April 2018.
Having regard to these considerations, I am satisfied that there are good reasons for the delay in bringing this application and that that delay does not adversely affect this application, nor is it a reason not to make a review order.
Stay of 16 May 2018 proceedings
Finally, I turn to the application for a stay. The applicant has applied for a stay of the 'final order hearing' which is listed to be heard on 16 May 2018 at the Armadale Magistrates Court. Therefore, there is some urgency with that application.
The procedure for dealing with an application for a review order is set out in O 56A of the Rules of the Supreme Court. If a judge makes a review order, that order 'may include an order that the review order operates as a stay of the proceedings in question until such time as the Court specifies in the order or orders otherwise'.[27]
[27] Rules of the Supreme Court 1971 (WA) O 56A r 3(3)(d).
The principles governing applications for stays of proceedings were considered by Pritchard J in Re Magistrate P Roth; Ex Parte Yahiya[28] where her Honour observed that:[29]
As a stay can only be granted if a review order is made,[30] it necessarily follows that, before a stay can be granted, the Court will have been satisfied that the applicant has established an arguable case in respect an applicable ground of review, and that that ground of review has a reasonable prospect of success. For the purpose of considering whether a stay should be granted, it is therefore necessary only to consider the additional question of the existence of special circumstances sufficient to satisfy the Court that the order of the Magistrates Court should be stayed so as to preserve the subject matter and integrity of the review proceedings. That test encompasses factors which would normally be taken into account in considering the balance of convenience in relation to the grant of the injunctive relief.[31] (footnotes in original)
[28] Re Magistrate P Roth; Ex Parte Yahiya [2016] WASC 284.
[29] Re Magistrate P Roth; Ex Parte Yahiya [82] (Pritchard J).
[30] Rules of the Supreme Court 1971 (WA) O 56A r 3(3)(d).
[31] Stampalia v Racing Penalties Appeal Tribunal of Western Australia [1999] WASC 7 [11] (Owen J).
There may, at first blush, be some difficulty in applying those observations to an application for a restraining order, but it is necessary to consider the factual context in which this application is made. First, the applicant, in the affidavit sworn in support of the application, deposes to significant health difficulties that she has suffered in the recent past. For privacy reasons, I will not detail those difficulties in these reasons. It is sufficient to say that that the stress of a contested hearing will be a significant factor for any person appearing before the courts. It is likely to cause this applicant greater stress and suffering than those who have not suffered the health difficulties that she has suffered.
There is an additional matter, namely that on 4 December 2017 the applicant had, on her case - and I think the applicant's case in this respect is strong - a right to have a final restraining order made, without having to confront the respondent in court proceedings, and without having to endure the stress associated with such proceedings. That statutory right is an important mechanism or an important aspect of the statutory scheme established by the Restraining Orders Act, in that it reduces the burden and difficulties confronted by victims of domestic violence.
I note that, pursuant to s 10B of the Restraining Orders Act, in performing a function relating to a Family Violence Restraining Order, a court must have regard to various considerations, including relevantly in this case, that proceedings 'should be conducted in a way that treats victims with respect and dignity and endeavours to reduce the degree to which victims might be subject to re-traumatisation during those proceedings'.[32]
[32] Restraining Orders Act 1997 (WA) s 10B(1)(j).
If the proceedings before the Magistrate are not stayed then the applicant will have to confront those difficulties. The statutory scheme clearly is designed in such a way to enable those difficulties and the associated trauma to be avoided. So if the stay application is not granted, in effect, the applicant will be confronted with the stress associated with a contested hearing, which she would otherwise have avoided. For those reasons, it seems to me that the stay order should be made.
Conclusion
For these reasons, I will grant a review order of the learned Magistrate's decision, and grant a stay of the 'final order hearing' which is listed to be heard on 16 May 2018 in the Armadale Magistrates Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE25 MAY 2018
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