JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SOURAKI AZAD [2024] WASC 433
CORAM: HOWARD J
HEARD: 29 OCTOBER 2024
DELIVERED : 21 NOVEMBER 2024
PUBLISHED : 21 NOVEMBER 2024
FILE NO/S: CIV 1446 of 2024
EX PARTE
MOHAMMAD AMIN SOURAKI AZAD
Applicant by Ex Parte
Catchwords:
Judicial review – Ex-parte application for review order under s 36(1) of the Magistrates Court Act 2004 (WA) - Where Magistrate made an order for a violence restraining order against the applicant - Whether the Magistrate made an arguably reviewable error – No arguable error shown - Application dismissed
Legislation:
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant by Ex Parte | : | In Person |
Solicitors:
| Applicant by Ex Parte | : | In Person |
Cases referred to in decision(s):
Akers v Minister for Immigration Local Government and Ethnic Affairs (1988) 20 FCR 363
Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473
Seiffert v The Prisoners Review Board [2011] WASCA 148
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (1983) 51 ALR 561
SZFVL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 747
HOWARD J:
By an ex-parte application filed 23 April 2024, the applicant seeks a review order pursuant to s 36(1) of the Magistrates Court Act 2004 (WA). The application was supported by his 'affidavit' dated 15 March 2024 and filed 23 April 2024.
I say 'affidavit' as the document was not regularly made. However, I have treated it, for present purposes, as the evidence which the applicant wishes to give on his application.
The applicant's affidavit is written as though it is addressed to the former President of the State Administrative Tribunal. I do not know why that is so.
I note that the applicant is not legally represented and that may explain why a good deal of his affidavit in support appears to be more in the nature of submissions than evidence.
To try and avoid confusion, I use 'applicant' from here to refer to the applicant for the review order in this Court, and 'VRO applicant' to refer to the applicant for the Violence Restraining Order in the Magistrates Court (against the applicant).
I have proceeded on the basis that the applicant seeks a review order in relation to:
1.a decision made by her Honour, Magistrate Webb, on 29 February 2024 to make a Violence Restraining Order (VR Order). The VR Order was annexed as DSRO‑10 to the applicant's affidavit; and
2.a costs…
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- AGLC
- SOURAKI AZAD [2024] WASC 433
- Case
- [2024] WASC 433
- Decision Date
CaseChat Overview and Summary
The court examined each ground of the application. The first issue was whether the Magistrate’s mistake of fact about who sent a letter was a jurisdictional error. The court found that the mistake did not affect the outcome of the decision as the Magistrate relied on the substance of the letter and not its source. The court found that the applicant's ability to make submissions before the Magistrate meant that the alleged mistake did not amount to a reviewable error. The second issue was whether the Magistrate failed to consider the applicant's objection to missing pages from the VRO applicant's affidavit. The applicant had been able to make submissions to the Magistrate and the court did not see that the Magistrate disregarded the applicant's submissions. The third issue was whether the Magistrate relied on ambiguous and inconsistent evidence. The applicant argued that the VRO applicant gave false and misleading evidence. The court found that the Magistrate's decision was not based on the alleged false evidence, but rather on the overall context and background provided by the VRO applicant.
The court dismissed the application for judicial review, finding no arguable ground for review. The Magistrate's decision to make a violence restraining order against Mr Azad was upheld.
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
A mistake of fact can amount to a jurisdictional error if the mistake of fact affects the outcome of the decision[37] or where establishing a fact is important for reaching a conclusion and there is no evidence to support that specific finding.[38][37] SZFVL v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 747, 760 [22] (Driver FM).[38] Australasian Meat Industry Employees’ Union v Fair Work Australia (2012) 203 FCR 389, 413 [92] (Tracey J). Here, nothing turned on the Magistrate's mistake as to who sent the email (or ‘letter’). It is clear the Magistrate relied on the substance of the email. The Magistrate relied on the 'letter' dated 22 December 2023 to the extent that it provided background and context to the VRO applicant's application. At its highest, the Magistrate used the letter as demonstrating the applicant had received a warning from the Court to not contact the VRO applicant. I find that it could have made no difference to the Magistrate's decision if the letter was sent by President Pritchard's Chambers or Court security. In all of the circumstances, I do not consider that a fair reading of the Magistrate's reasons in this respect discloses an arguable ground for review. I do not consider it arguable that the mistake of fact here could amount to a jurisdictional error. As I understand it, the complaint made here is that the VRO applicant (through her solicitor) provided incomplete material to the Court in that the last two pages of the applicant's letter 8(1) were missing.[39] The applicant said that he had objected at the hearing before the Magistrate to that occurring.[40] It was unclear in the hearing in this Court whether the applicant contended that the Magistrate had disregarded the 'missing' material or had disregarded his objection.[41][39] ts 10 on 29 October 2024.[40] ts 10 - 11 on 29 October 2024. Note at the hearing on 5 February 2024, the applicant said only the final page was missing: ts 57 - 58 on 5 February 2024.[41] ts 10 - 11 on 29 October 2024. The applicant accepted before this Court that he had been able to make submissions to the Magistrate which reflected the 'missing' pages.[42][42] ts 11 on 29 October 2024. It was apparent that the principal complaint sought to be raised under this Ground involved the conduct of the solicitor for the VRO applicant, and the Magistrate not accepting that the solicitor's conduct in 'omitting' the two pages was deliberate.[43][43] ts 11 on 29 October 2024. However, given the applicant's acceptance that he was able to make the submissions he wished to before the Magistrate[44] and that what was said to be missing were pages from his own letter 8(1), I do not detect that this Ground identifies an arguable ground of review.[44] ts 11 on 29 October 2024. The applicant asserts an error of law and says that the Magistrate relied on 'ambiguous and significantly inconsistent evidence presented by' the VRO applicant. The application states:It is evident through the strong evidentiary materials, that the [VRO applicant] offered false and misleading evidence in the course of the VRO proceeding, both while under oath within the hearing and in her [VRO affidavit]. This evidence warrants close examination by the court due to the particular circumstances of this case.