Re Magistrate R Johnston - [2020] WASC 107

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RE MAGISTRATE R JOHNSTON; EX PARTE JONES [2020] WASC 107
CORAM:   TOTTLE J
HEARD:   18 DECEMBER 2019 & FURTHER WRITTEN SUBMISSIONS FILED ON 30 JANUARY 2020
DELIVERED          :   2 APRIL 2020
FILE NO/S:   CIV 2809 of 2019
MATTER: An Application under s 36 of the Magistrates Court Act 2004 for a Review Order against Raelene Natasha Johnston, a Magistrate of the Magistrates Court at Carnarvon

EX PARTE
VERA LYNN JONES
Applicant

Catchwords:

Judicial review - Application for review order - Where review order sought against magistrate's decision to grant restraining order - Whether satisfaction of certain events jurisdictional facts - Whether magistrate committed jurisdictional error - Whether applicant able to establish arguable case as to jurisdictional error - Review order granted

Legislation:

Magistrates Court Act 2004 (WA), s 36
Restraining Orders Act 1997 (WA), s 45, s 47, s 48, s 49, s 54
Rules of the Supreme Court 1971 (WA), O 56A r 2

Result:

Application for review order granted

Category: B

Representation:

Counsel:

Applicant

K Gorski

Solicitors:

Applicant

Legal Aid - Perth

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

Bindai v Armstrong [2016] WASC 341
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217
R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407
Rayney v AW [2009] WASCA 203
Re Brian Charles Gluestein; Ex parte Anthony [2014] WASC 381
Re Magistrate G Benn; Ex parte Gethin [2019] WASC 380

TOTTLE J:

Introduction

The applicant has applied for a review order under s 36 of the Magistrates Court Act 2004 (WA) in respect of a decision made on 29 September 2017 to extend a violence restraining order made against the applicant under the Restraining Orders Act 1997 (WA) (the Act).
Pursuant to O 56A r 2 of the Rules of the Supreme Court 1971 (WA) the application was heard ex parte on 18 December 2019 and further written submissions were filed on 30 January 2020.
The ground upon which the application is based is that the applicant was not served with the summons seeking the extension of the order and the magistrate made the order without having the jurisdiction to do so.

The facts

The following facts are drawn from the affidavit evidence filed in support of the application.[1]
[1] Affidavit of Kerry Ann Gorski affirmed 2 October 2019, affidavit of Laura Sweetman affirmed on 20 January 2019.
On 4 September 2015 the protected person applied for and was granted a restraining order against the applicant. The application was granted on an ex parte basis.
On 10 September 2015 the restraining order was served on the applicant.
On 1 September 2017 the protected person filed an application to extend the duration of the restraining order in the Magistrates Court at Carnarvon.
In September 2017 the standard practice followed in the Magistrates Court at Carnarvon on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Magistrate R Johnston

Details

AGLC: Re Magistrate R Johnston [2020] WASC 107
Case: [2020] WASC 107
Decision Date: 2 APRIL 2020

CaseChat Overview and Summary

The case of Re Magistrate R Johnston involved an application for judicial review by an individual, whose identity is not disclosed, against a decision made by Magistrate R Johnston to grant a restraining order. The applicant argued that the magistrate had no jurisdiction to make the decision, as certain jurisdictional facts had not been satisfied. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue before the court was whether the magistrate had committed a jurisdictional error in granting the restraining order. Specifically, the applicant contended that satisfaction of certain events, namely the service of a summons, was a condition precedent to the magistrate's authority to decide and that there was no evidence upon which the magistrate could have achieved the necessary state of satisfaction. The court had to determine if the magistrate's decision was a purported exercise of public power in the absence of the necessary jurisdictional fact.

The court found that it was reasonably arguable that satisfaction on the part of the magistrate that the applicant had been served with the summons was a condition precedent to the magistrate's authority to decide the application. There was no evidence before the court on the date of the decision that the applicant had been served with the summons, and thus the magistrate had no authority to decide that the restraining order should be varied by extending its duration. The court concluded that the applicant had established a reasonably arguable case that the magistrate had committed a jurisdictional error. Consequently, the court granted the review order and directed the magistrate to hear the applicant regarding the terms of the review order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Where a state of satisfaction is a condition precedent to a decision‑maker's authority to decide and there is no evidence upon which the decision-maker could have achieved the necessary state of satisfaction yet a decision is made, the decision will be treated as a failure to exercise jurisdiction - a purported exercise of public power in the absence of the necessary jurisdictional fact.[6] [6] Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [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). I am satisfied that it is reasonably arguable that satisfaction on the part of the magistrate that the applicant had been served with the summons was a condition precedent to the magistrate's authority to decide the application to vary the restraining order by extending its duration - that is that it was a jurisdictional fact.[7] The court's authority to decide was not conditional upon actual service of the summons on the applicant rather on the court being satisfied that the applicant had been served with the summons.[8][7] Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217 [98] - [111] (Murphy JA, Martin CJ & McLure P agreeing).[8] Bindai v Armstrong [2016] WASC 341 [22] – [23]. On the evidence adduced by the applicant she has established a reasonably arguable case that there was no evidence before the court on 29 September 2017 upon which the magistrate could have been satisfied that the applicant had been served with the summons. On that basis the applicant has a reasonably arguable case that the magistrate had no authority to decide that the restraining order should be varied by extending its duration. Accordingly I will make a review order. I will hear the applicant as to the terms of the review order.