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
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…
Continue reading Re Magistrate R Johnston
Sign in free to access the full text
- AGLC
- Re Magistrate R Johnston [2020] WASC 107
- Case
- [2020] WASC 107
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
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.