Taylor v Woods - [2024] WASC 294

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TAYLOR -v- WOODS [2024] WASC 294
CORAM:   LEMONIS J
HEARD:   11 APRIL 2024 AND 31 MAY 2024
DELIVERED          :   28 AUGUST 2024
FILE NO/S:   CIV 2322 of 2023
BETWEEN:   SHEVON TAYLOR
Applicant
AND
ELIZABETH WOODS
First Respondent
THE STATE SOLICITOR FOR WESTERN AUSTRALIA
Second Respondent

Catchwords:

Order made that the applicant pay the amount of a surety undertaking that she gave under the Bail Act 1982 (WA) - Applicant did not attend hearing when order was made - The notices sent to the applicant advising of the hearing were inapt and confusing - Applicant applies for review of the order on the ground that she was denied procedural fairness - Consideration of whether the applicant was denied procedural fairness - Consideration of whether any denial of procedural fairness was material - General observations regarding the procedures used by the Magistrates Court when dealing with applications for forfeiture of surety

Legislation:

Bail Act 1982 (WA)
Bail Regulations 1988 (WA)
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Magistrates Court Act 2004 (WA)

Result:

Order subject of review to be set aside

Category: B

Representation:

Counsel:

Applicant	:	F Sellers
First Respondent	:	No appearance
Second Respondent	:	K Dias

Solicitors:

Applicant	:	Legal Aid (WA)
First Respondent	:	State Solicitor's Office
Second Respondent	:	State Solicitor's Office

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

Defendi v Szigligeti [2019] WASCA 115
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12
Macdonald Rudder v Whitbread [2021] WASC 395
Re Potter, Re; Ex Parte Coppin [2013] WASC 462

LEMONIS J:

In this proceeding, the applicant (Ms Taylor) applies for review pursuant to s 36 of the Magistrates Court Act 2004 (WA) (Magistrates Court Act). The review is sought in respect of an order that Ms Taylor forfeit the sum of $10,000 the subject of a surety undertaking given by her under the Bail Act 1982 (WA) (Bail Act).
Ms Taylor gave the surety undertaking in satisfaction of a condition of the grant of bail to a Mr Turnbull. He did not attend court in accordance with his bail undertaking. The State Solicitor then applied under s 49 of the Bail Act for an order that Ms Taylor forfeit the surety sum. The application ultimately came on for hearing on 27 February 2023 before the learned magistrate (the first respondent). Ms Taylor was not present. The learned magistrate made the order for forfeiture in her absence.
This proceeding was commenced by application filed 23 November 2023. Subsequent to the filing of the application, the State Solicitor was joined as the second respondent. The State Solicitor opposes the application and was represented by counsel at the hearing. The first respondent filed a notice of intention to abide except in respect of costs.
Ms Taylor's application initially relied on the ground that the learned magistrate erred in not receiving proof of her liability as required under s 49(1)(c) of the Bail Act. After initial submissions, it became clear that Ms Taylor's liability was established by the documents that were before the learned magistrate at the hearing on 27 February 2023.[1] However, a different issue emerged, relating to the procedures implemented by the Magistrates Court in dealing with the State Solicitor's application. This issue was not raised by Ms Taylor's application. As a consequence, the initial hearing was adjourned to give Ms Taylor the opportunity to formulate a new ground of review.
[1] See [43] of these reasons.
Ms Taylor subsequently amended her ground of review to allege a denial of procedural fairness and a denial of natural justice. Couched in that way, the ground raises the possibility of jurisdictional error.
The Magistrates Court notices sent to Ms Taylor ostensibly advising of the hearing date of the application for forfeiture are pivotal to the disposition of this review application. Those notices identified Ms Taylor as the accused and stated she had been charged with a criminal offence for 'breach of surety undertaking'. The notices also stated that the charge had been adjourned to a specific time and place, and if she did not appear then, the court may hear and determine the charge in her absence. Ms Taylor had not been charged with a criminal offence for breaching her surety undertaking, nor could she have been. It was Mr Turnbull who had breached his bail undertaking.
The State Solicitor accepts that the notices sent to Ms Taylor did not specifically refer to the application for forfeiture of the sum of $10,000. The State Solicitor relied on an affidavit of Mr Ravindran affirmed 14 May 2024 explaining why that form of notice was used. Mr Ravindran was the acting Manager of Court Operations at the Magistrates Court. He explained that the court systems do not have the capability to provide a distinct mechanism for applications for forfeiture of surety. Therefore, the Magistrates Court uses forms prescribed by the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) as the 'most pragmatic way' of providing notice to the surety. To be clear, his affidavit does not suggest he made the decision to adopt that solution. Rather, his affidavit explains his understanding as to why the solution was adopted in the first place.
It troubles me that the Magistrates Court sends out notices in respect of applications for forfeiture that describe the surety as having been charged with a criminal offence. Such a description is completely wrong. It also is confusing to the surety and has the potential to cause undue stress and anxiety. If the 'system' cannot generate accurate notices, then either the system needs to be revised, or notices should be manually produced. There is no scope for pragmatic solutions that falsely represent what is happening. That being said, just because I am troubled by what has happened does not necessarily mean that I should grant the relief sought by Ms Taylor. The matter needs to be looked at as a whole, having regard to the applicable principles.

Applicable legislative provisions and relevant principles

Section 36(1) of the Magistrates Court Act provides that where a person is aggrieved in respect of certain prescribed matters, the person may apply to the Supreme Court for a review order. Relevantly, a review order is an order that requires the court officer who made the impugned order, and any person who will be affected by the impugned order, to satisfy the court it should not be set aside.[2]
[2] Magistrates Court Act, s 36(1).
At the hearing the subject of the review order, the court may order that the subject order be set aside and make any necessary consequential orders if:
1.the court is not satisfied that the order should not be set aside; or
2.it is just to do so.[3]
[3] Magistrates Court Act, s 36(4).
This proceeding was conducted on the basis that the application for the review order, and the review itself, were conducted as one hearing.[4] The final orders that Ms Taylor seeks are that the order for forfeiture be set aside and the matter be remitted to the Magistrates Court for reconsideration of the State Solicitor's application for forfeiture.
[4] Consent order made 11 January 2024.
As I have explained, Ms Taylor's complaint arises in respect of a court order made against her. Section 36(1)(c) is the relevant statutory provision most pertinent to her ground of review. It provides that a person may apply for a review order if the:
… person is or would be aggrieved by one or more of the following -
…
(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…
Adopting the language of s 36(1)(c), Ms Taylor's contention is that she is aggrieved by the order made by the learned magistrate for forfeiture of the surety sum of $10,000, on the ground that the order was made without jurisdiction or power. The ground relies on Ms Taylor's contention that she was denied procedural fairness and natural justice.

Procedural fairness

A court is required to afford procedural fairness to a party to proceedings before the court.[5]
[5] Defendi v Szigligeti [2019] WASCA 115 [45].
A denial of procedural fairness can constitute jurisdictional error, however whether or not it does so ordinarily depends on whether the lack of procedural fairness was material to the decision made.[6] Ms Taylor is not required to prove that a different decision would have been made by the learned magistrate. Rather, she needs to establish that there was a realistic possibility that a different decision could have been made.[7]
[6]LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2024] HCA 12 [14] - [15].
[7] Macdonald Rudder v Whitbread [2021] WASC 395 [71].
The requirements of procedural fairness are not fixed or immutable. In the joint judgment of the Court of Appeal in Defendi v Szigligeti, the court observed that:[8]
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them. (footnotes omitted)
[8] Defendi v Szigligeti [2019] WASCA 115 [47] - [48].
As can be seen from this passage, a fundamental requirement of procedural fairness is that a party is given a reasonable opportunity to be heard, that is, to present their case.[9]
[9] See also RePotter, Re; Ex Parte Coppin [2013] WASC 462 [34] - [35].
Before turning to the specific circumstances of this case, it is useful to set out the applicable provisions of the Bail Act.

The Bail Act

An accused's bail undertaking ordinarily has two components. The first is an undertaking to appear. The second is an undertaking to comply with conditions of bail.[10]
[10] Bail Act, s 28(2).
A surety undertaking is given by another person (the surety) as an additional means of securing the accused's attendance at court in accordance with their bail undertaking. In general terms, the effect of a surety undertaking is that the surety will pay a certain amount of money if the accused does not appear in court in accordance with their bail undertaking. In this respect, s 35(1) of the Bail Act describes a surety as follows:
A surety is a person who, as a condition of the grant of bail to an accused, enters into a surety undertaking, that is to say, undertakes in writing that he will, subject to this Act, forfeit a specified amount of money if the accused fails to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) and (b).
A surety is required to be approved by a surety approval officer under s 40.[11] Section 38(1)(b) provides that a person is not qualified to be approved as a surety if their net assets are less than the amount the subject of the proposed surety undertaking. Further, s 39(c) requires the surety approval officer to have regard to the surety's ability to pay the surety sum without excessive hardship to the surety or their dependents.
[11] Bail Act, s 35(2).
A surety has certain powers to arrest an accused, for example if the surety has reasonable grounds to believe that the accused will not attend court in accordance with their bail undertaking.[12] Further, a surety may apply for their surety undertaking to be cancelled.[13] The surety does not have to establish that cancellation of their undertaking is appropriate. Rather, upon the application being made, the court causes the accused to appear before the court,[14] upon which appearance the surety undertaking is cancelled as a matter of course.[15]
[12] Bail Act, s 46.
[13] Bail Act, s 48.
[14] Bail Act, s 48(3).
[15] Bail Act, s 48(4).
Where an accused fails to comply with the requirement to appear contained in their bail undertaking, an application may be made for payment to the State of the amount specified in the surety undertaking. In this case, the State Solicitor was able to bring that application.
There is an obvious public interest in surety undertakings being enforced. A surety undertaking provides the court with an additional reassurance that an accused will attend at court as required by their bail undertaking. A surety undertaking should not be lightly given. Those that provide a surety undertaking should understand that, in the ordinary course, they will be ordered to pay the surety sum if the accused the subject of the undertaking does not attend court as required.
Section 49(1) and s 49(2) set out how an application for forfeiture of the sum specified in a surety undertaking is to be made. They relevantly provide:
(1)Where an accused has failed to comply with any requirement of his bail undertaking mentioned in section 28(2)(a) or (b) the following provisions of this section apply for the purpose of enforcing payment to the State of any sum thereupon payable by a surety in terms of his surety undertaking -
(a)an application for an order that the sum be paid may be made to an appropriate judicial officer -
(i)by the Director of Public Prosecutions where the court before which the accused failed to appear was -
(I)the District Court, the Supreme Court or the Court of Appeal; or
(II)another court, if the Director of Public Prosecutions is the prosecutor in that court of the case against the accused;
or
(ii) in other cases, by the State Solicitor or the registrar of the court before which the accused failed to appear;
[(b) deleted]
(c) on the hearing of the application and upon proof of the surety's liability in terms of his undertaking, the judicial officer shall order forfeiture of the full amount specified in the undertaking unless the surety attends at the hearing and shows to the satisfaction of the judicial officer that there was reasonable cause for the failure of the accused to comply with the requirement to which the application relates;
(d) notwithstanding paragraph (c), the judicial officer may decline to make an order under that paragraph or may order forfeiture in part only where the surety attends and shows to the satisfaction of the judicial officer -
(i) that, by reason of a change of circumstances since the undertaking was entered into, an order for forfeiture, or for forfeiture in full (as the case may be), would cause excessive hardship to the surety or his dependants; and
(ii) that such hardship would not be relieved by the exercise of one or more of the powers conferred by section 59;

…

(2)An application under subsection (1) must be made, and proceedings on it are to be conducted -
(a) in a court of summary jurisdiction - in accordance with the regulations;
(b) in the Supreme Court or the District Court - in accordance with rules of court.

Section 59 (referred to in s 49(1)(d)(ii)) permits the judicial officer hearing the application to order that payment be made by instalments or be postponed to a specified date.
Section 49 was amended in 2008 to address concerns raised by the Chief Magistrate (amongst others) regarding the previous iteration of s 49(2) of the Bail Act. It had provided that an application for forfeiture was to be conducted in accordance with regulations or rules of court made under the Criminal Procedure Act. The Chief Magistrate's concern was that the procedures under the Criminal Procedure Act were not apposite. Section 49 was therefore amended to remove the references in s 49(2) to the Criminal Procedure Act.
The explanatory memorandum in respect of those amendments relevantly stated:[16]
[16] Explanatory memorandum, Bail Amendment Bill 2007, cl 30, pages 31 - 32.
A proceeding to recover money under a surety undertaking is not a proceeding for an offence and can even occur when the accused has not been charged with the offence of breach of bail undertaking…
The operation of this section in practice is causing problems and the utilisation of the procedure under the relevant criminal legislation to conduct forfeiture proceedings is not considered appropriate for what is essentially a civil proceeding. A surety has not committed an offence, they have undertaken that an accused will appear at the time and place specified in the bail undertaking. If they don't appear then the surety agrees to forfeit a sum of money.
The reference in the new section 49(1)(a) to an 'application' foreshadows use of an application procedure. This is entirely appropriate given that enforcements of surety undertakings are not in themselves proceedings for an offence. The problem arises from the position that these proceedings are civil in nature and therefore it needs to be questioned whether it is appropriate for actions for breach of surety undertaking to be governed by the Criminal Procedure Act, an Act which is solely concerned with prosecutions for offences.
The Chief Magistrate, among others, raised concerns with the provisions of sub-section 49(2). Under this sub-section, an application by a registrar to a judicial officer for an order for forfeiture of money under a surety's undertaking must be made, and proceedings on it are to be conducted, "in accordance with regulations made under the Criminal Procedure Act 2004" where the application is made in a court of summary jurisdiction (see [sub-section] 49(2)(a)).
Division 2 of Part 4 of the Criminal Procedure Regulations 2005 deals with applications to courts of summary jurisdiction. Regulation 13 provides that Division 2 of Part 4 "applies to and in respect of any application that may be made to a court of summary jurisdiction in a prosecution".
The surety, him or herself, has not necessarily committed an offence for an application for forfeiture of money under the surety's undertaking to be initiated. It is the accused's failure to comply with section 28(2)(a) or (b) of the Bail Act (that is, it is the accused's failure to appear) that triggers the application and, hence, the surety's potential liability to pay.
As such, an application for forfeiture of money under a surety's undertaking pursuant to sub-section 49(1) of the Bail Act is not an application in a prosecution and, therefore, cannot fall within the provisions of Division 2 of Part 4 of the Criminal Procedure Regulations 2005.
Consequently, there are currently no provisions governing how an application under section 49(1) is to be made and how the proceedings on it are to be conducted. This will now be overcome by including appropriate regulations in the Bail Regulations 1988 and amending sub-section 49(2)(a) of the Bail Act accordingly.
To this end sub-section 49(2)(a) of the Bail Act has been amended to provide that an application under sub-section 49(1) must be made, and proceedings on it are to be conducted in a court of summary jurisdiction, in accordance with the Bail Regulations 1988. Appropriate regulations in the Bail Regulations 1988 will be drafted to provide for the procedure for making and conducting an application under sub-section 49(1) of the Bail Act.
The first two paragraphs from this extract are quite telling. First, they acknowledge that a proceeding to recover money under a surety undertaking is not a proceeding for an offence. Second, they acknowledge that the operation of the section by utilising procedures under the Criminal Procedure Act was causing problems.

After s 49 of the Bail Act was amended, the Bail Regulations 1988 (WA) (Bail Regulations) were also amended. However, this was only done in a perfunctory manner. Regulation 9B(2) and reg 9B(3) of the Bail Regulations were amended to provide that an application under s 49(1) for forfeiture must be in an 'approved form' and does not have to be supported by an affidavit unless the court orders otherwise. Regulation 9B(4) provides for service on the surety of the application and any affidavit in support. It also sets out how service is to be effected. The Bail Regulations do not include any 'approved form'. Mr Ravindran sets out in his affidavit that the standard form adopted by the Magistrates Court was approved by the Chief Executive Officer of the Department of the Attorney General in 2009.[17]
[17] Affidavit of Mr Vidiyan Kesava Ravindran affirmed 14 May 2024, par 6.
I turn now to the relevant circumstances of this case.

Relevant circumstances

On 14 May 2022, Mr Turnbull signed a bail undertaking pursuant to which he undertook to appear at the Perth Magistrates Court on 25 May 2022 at 9.00 am. His conditions of bail included a personal undertaking in the sum of $10,000 and a surety undertaking in the sum of $10,000.[18] The bail undertaking applied in respect of 13 different charged offences.
[18] Affidavit of Mr Adrian Robert Jones affirmed 12 March 2024, page 7. Mr Jones is a managing law clerk at the State Solicitor's Office.
Ms Taylor provided the required surety undertaking. The surety documentation comprises two parts. First, a declaration that sets out Ms Taylor's personal circumstances. This information assists the surety approval officer in assessing Ms Taylor's appropriateness to be the required surety. Second, the surety undertaking itself.
Ms Taylor's declaration in support of the surety undertaking is dated 14 May 2022. It states that she did not agree to the undertaking extending to a different time or place than that specified in Mr Turnbull's bail undertaking.[19]
[19] Affidavit of Mr Jones, page 9.
Ms Taylor's declaration also set out the following. She was born on 14 September 1998 (and was therefore 23 years of age). Mr Turnbull was an 'in law' whom she had known for three years. Her assets comprised a 2008 Mitsubishi Lancer with a value of $8,000 and a gold chain with a value of $4,000. She had $2,000 in fines which were on a Time to Pay Arrangement.[20] Ms Taylor had one prior conviction, which was for 'drink driving'.[21] Ms Taylor did not have any pending criminal proceedings against her.[22] The declaration identified the 13 charges against Mr Turnbull by reference to both the description of the relevant charge and the charge number.[23]
[20] I infer TTP in the declaration is shorthand for time to pay.
[21] I infer DD in the declaration is a reference to driving while under the influence of alcohol, DD being shorthand for drunk driving.
[22] Affidavit of Mr Jones, page 9.
[23] Affidavit of Mr Jones, pages 8 and 10.
As can be seen, Ms Taylor's net assets were $10,000 and thus equated to the entirety of the surety sum. I do doubt the wisdom of approving as a surety a 23-year-old who is unemployed, whose estimated net assets equate to the surety sum and whose most significant asset is a 14‑year-old car, which would be difficult to value with any precision. However, that is not a matter that is raised by the ground of review in this proceeding.
The surety undertaking signed by Ms Taylor is also dated 14 May 2022. It sets out that Mr Turnbull was required to appear on 25 May 2022 at 8.30 am at the Perth Magistrates Court. Pursuant to the undertaking, Ms Taylor undertook and agreed to forfeit the sum of $10,000 if Mr Turnbull did not appear at that time and place. Contrary to Ms Taylor's declaration, the surety undertaking stated that it also applied where Mr Turnbull did not attend as required at a different time and place to that set out in his bail undertaking. This discrepancy between Ms Taylor's declaration and the surety undertaking does not affect the disposition of this proceeding.
The surety undertaking also identified the 13 charges against Mr Turnbull to which the undertaking applied. This was done by reference to the description of the relevant charge and also the charge number.[24]
[24] Affidavit of Mr Jones, pages 11 and 12.
In Ms Taylor's affidavit affirmed in support of these proceedings, Ms Taylor set out additional information pertaining to the circumstances in which she signed the surety documentation. Ms Taylor said:[25]
We went to the Court house to see how much was needed. At the Court house, my family member showed the officer a receipt for a gold chain. She did not have the chain on her. I think the receipt was for about $3,000 but it may have been more (about $5,000). I can't really remember.
The man at the Court searched my car details up. I told him what year and model my car was. It was a Mitsubishi Lancer from 2008.
He said it was worth about $7,000 to $8,000 which was more than I paid for it. That was what was used as the surety.
[25] Affidavit of Ms Taylor affirmed 28 February 2024, pars 3 - 5.
In relation to her car, Ms Taylor set out the following additional matters. She bought the car on 9 March 2022 for about $2,000. The car was taken to the wreckers after her cousin committed an offence in it, which resulted in significant damage to the car. She then sold the car to the wreckers for about $400 and has not replaced the car.[26] Her affidavit does not explain whether the car was damaged prior to the learned magistrate making the order for forfeiture on 27 February 2023.
[26] Affidavit of Ms Taylor, pars 19 - 23.
Subsequent to Ms Taylor providing the surety undertaking, Mr Turnbull did not attend court as required on 25 May 2022.
On 24 October 2022, the State Solicitor filed an application for forfeiture of the surety sum. The application identified the charge numbers the subject of Mr Turnbull's bail undertaking and asserted he had failed to appear at court in accordance with that undertaking. The application sought an order that Ms Taylor forfeit (pay) to the State the sum of $10,000. The application was served by sending it by express post to Ms Taylor's last known address on 25 October 2022. The initial hearing date was 16 November 2022. [27] Ms Taylor's counsel contended that service of the application was not effected within the timeframe required by reg 9B of the Bail Regulations. It is not necessary to resolve that issue, as the final hearing of the application was not held on 16 November 2022.
[27] Affidavit of Mr Jones, page 6.
The application was filed together with a copy of Mr Turnbull's bail undertaking, Ms Taylor's surety undertaking and a certificate pursuant to s 64 of the Bail Act certifying that Mr Turnbull did not attend before the Magistrates Court at 12.50 pm[28] on 25 May 2022.[29] Pursuant to s 64, the certificate is evidence of the matters certified. These documents were sufficient to prove Ms Taylor's liability in terms of her surety undertaking, as required by s 49(1)(c). However, Ms Taylor could still have contended pursuant to s 49(1)(d) that the learned magistrate should decline to make an order for forfeiture, or alternatively, order that only part of the surety sum be forfeited.
[28] I infer this reflects the time that Mr Turnbull's matter was called for hearing on 25 May 2022.
[29] Affidavit of Mr Jones, pages 4 - 13.
Ms Taylor did not attend court on 16 November 2022. The application was then adjourned to 14 December 2022. The Magistrates Court's hearing summary states:[30]
Ms Taylor contacted the court - cannot attend court today but wishes to defend the charge. She had previously advised SSO, and they did not oppose adjournment. Ms Taylor will need to attend on the next occasion… Notice of Adjournment.
[30] Affidavit of Mr Ravindran, page 18.
The Magistrates Court sent Ms Taylor a notice for the purpose of notifying her of the adjourned hearing date.[31]
[31] Affidavit of Mr Jones, page 27.
There are a number of difficulties with the notice:
1.The notice stated in large, bold and capitalised font at the top of the page that it was a 'NOTICE TO THE ACCUSED OF AN ADJOURNMENT'. Ms Taylor was not an 'accused' in respect of the State Solicitor's application.
2.The notice referred to s 75 of the Criminal Procedure Act, suggesting the notice was given under that section. Section 75 applies to the adjournment of criminal charges. It had no application to the State Solicitor's application.
3.The notice stated that the 'charge or charges' listed in it had been adjourned for mention to 14 December 2022 at 9.30 am. The notice also contained a warning that if Ms Taylor did not appear then, the court may hear and determine the 'charge or charges' in her absence.
4.The notice described the offence with which Ms Taylor had been charged as 'Breach of Surety Undertaking' with an offence date of 25 May 2022. Ms Taylor had not been charged with any offence arising out of Mr Turnbull not attending court in accordance with his bail undertaking.
5.The notice identified the relevant charge number as being PE 49344/2022. This is different to the charge numbers in respect of the charges against Mr Turnbull and reinforced that a separate charge had been brought against Ms Taylor. According to an e-mail sent from Mr Ravindran to Ms Sellers (Ms Taylor's counsel), the charge number inserted on the notice to Ms Taylor 'is simply a mechanism to identify the application within the court system'.[32] That is, contrary to what the notice states, the number does not reflect an actual charge brought against Ms Taylor.
[32] Affidavit of Ms Sellers affirmed 28 February 2024, page 11.
As can be seen from the matters set out at [46] above, the notice substantially mischaracterised the proceedings brought against Ms Taylor. Moreover, the notice does not clearly identify that what had been adjourned was the State Solicitor's application for forfeiture of surety.
On 12 December 2022, the Magistrates Court sent an e-mail and a text message to Ms Taylor's e-mail address and mobile phone number respectively. They advised that she had a hearing at the Perth Magistrates Court on 14 December 2022 at 10.00 am but did not state what that hearing concerned.[33]
[33] Affidavit of Mr Ravindran, page 17.
Ms Taylor did not attend the adjourned hearing on 14 December 2022. The application was adjourned again, this time through to 11 January 2023. The Magistrates Court's hearing summary for 14 December 2022 stated:[34]
Liability disputed. On 11/1 may need to list for hearing(1hr); Notice of Adjournment.
[34] Affidavit of Mr Ravindran, page 18.
The Magistrates Court sent Ms Taylor a notice following the adjournment. It was in the same terms as the initial notice, except it referred to a hearing date of 11 January 2023 at 9.00 am.[35] On 9 January 2023, the Magistrates Court sent an e-mail and a text message to Ms Taylor's e-mail address and mobile phone number respectively. They advised that she had a hearing at the Perth Magistrates Court on 11 January 2023 at 10.00 am, but did not state what that hearing concerned.[36]
[35] Affidavit of Mr Jones, page 26.
[36] Affidavit of Mr Ravindran, page 17.

Ms Taylor did not attend the adjourned hearing on 11 January 2023. The application was adjourned again, this time through to 8 February 2023. The Magistrates Court's hearing summary for 11 January 2023 stated:[37]
[M]atter will need to be set [down] for a trial - state will obtain [Ms Taylor's] available dates before the matter is set for trial; Notice of Adjournment
[37] Affidavit of Mr Ravindran, page 18.
The Magistrates Court sent Ms Taylor a notice following the adjournment. It was in the same terms as the initial notice, except it referred to a hearing date of 8 February 2023 at 9.00 am.[38] On 6 February 2023, the Magistrates Court sent an e-mail and a text message to Ms Taylor's e-mail address and mobile phone number respectively. They advised that she had a hearing at the Perth Magistrates Court on 8 February 2023 at 10.00 am but did not state what that hearing concerned.[39] That time was one hour later than the time specified in the notice of adjournment. On 6 February 2023, the Magistrates Court sent a further e-mail and a text message to Ms Taylor's e-mail address and mobile phone number respectively which was described as a 'Bail Notification'. It stated that Ms Taylor was scheduled to appear at the Joondalup Magistrates Court on 8 February 2023 at 8.45 am.[40]
[38] Affidavit of Mr Jones, page 25.
[39] Affidavit of Mr Ravindran, page 17.
[40] Affidavit of Mr Ravindran, page 17.
Ms Taylor did not attend the further hearing of the application on 8 February 2023. She attended at the Joondalup Magistrates Court in respect of the criminal charges against her.[41] The State Solicitor's application for forfeiture was adjourned again, this time through to 27 February 2023. The learned magistrate who presided on 8 February 2023 made clear that the application would be dealt with that day. In this respect, at the hearing on 8 February 2023, the following exchange occurred between the learned magistrate and counsel for the second respondent:[42]
Her Honour: So she was informed on 16 November that she needed to attend on the next occasion.
Counsel:Yes.
Her Honour: And she didn't.
Counsel:Correct.
[41] Affidavit of Ms Taylor, par 10.
[42] Affidavit of Ms Sellers sworn 1 May 2024, page 8.
Counsel for the State Solicitor rightly informed the learned magistrate that Ms Taylor had indicated she disputed wilfully entering the surety.[43] This is also a topic raised by Ms Taylor's counsel in this proceeding, however it is not the subject of any evidence.
[43] Affidavit of Ms Sellers sworn 1 May 2024, page 8.
The Magistrates Court's hearing summary for the hearing on 8 February 2023 at the Perth Magistrate's Court stated:[44]
Listed for hearing in the respondent's absence based on her previous denial of liability. If she fails to attend the hearing, the forfeiture order can be made.
[44] Affidavit of Mr Ravindran, page 18.
The Magistrates Court sent Ms Taylor a notice following this adjournment. It was in the same terms as the initial notice, except in two respects. First, as to the time and date, the notice referring to a hearing date of 27 February 2023 at 9.30 am.[45] Second, the notification part of the notice stated:
The charge or charges listed below have been adjourned for hearing and determination to the Magistrates Court, Perth on 27 February 2023 at 9.30AM. The Court will hear any evidence you wish to give and any witnesses you call.
[45] Affidavit of Mr Jones, page 24.
The notice contained the same warning as was on the initial notice, namely that if Ms Taylor did not appear then, the Court may hear and determine the 'charge or charges' in her absence. The description of the offence and the charge number were the same as that set out in the initial notice of adjournment.
On 25 February 2023, the Magistrates Court sent an e-mail and a text message to Ms Taylor's e-mail address and mobile phone number respectively. They advised that she had a hearing at the Perth Magistrates Court on 27 February 2023 at 9.30 am but did not explain what that hearing concerned.[46]
[46] Affidavit of Mr Ravindran, page 17.
In Ms Seller's affidavit affirmed 28 February 2024, she explained that Ms Taylor was in the Perth Magistrates Court on 26 February 2023. Ms Sellers stated that:[47]
From the e-courts portal Ms Taylor was in Perth Magistrates Court on Sunday 26 February 2023 for two charges said to have been committed on 25 February 2023, being possession of a prescription drug and false details. She was also appearing on a form 5b application to revoke bail. That application was dismissed at 12.52 on 26 February 2023.
[47] Affidavit of Ms Sellers affirmed 28 February 2024, par 6.
Ms Taylor in her affidavit described these events as follows:[48]
I was arrested on Saturday 25 February 2023 in the afternoon or evening. I appeared in Northbridge Court on 26 February 2023 which was the day before the trial. This was a Sunday. I was pretty stressed and confused while I was in lockup. The lawyer might have said I had something about the surety charge but I remember that I didn't have any issues which might affect me getting bail that day.
I think I went to court about lunch time on 26 February 2023. After court I was released on bail. I was pretty stressed out when I got released as I had been in lockup for a while. I hadn't slept in there so was very tired. I went home to bed and slept.
I don't remember getting any SMS messages or emails about a trial. My [lawyer] tells me that the Court portal shows I might have got a message and email on 25 February 2023 but I don't remember seeing it and while I was in lockup my phone was with police.
I think I looked at my phone and saw there were messages but as I was so stressed and angry that I had been in lock up, I had a new court date for my criminal matters so I didn't read it and just put my phone onto charge.
I still wanted to defend the charge about the surety but I was confused that there were two sets of charges (surety & criminal).
[48] Affidavit of Ms Taylor, pars 11 - 15.
Ms Taylor also said in her affidavit that she was:[49]
… told the matter was adjourned to 14 December 2022 and again to 11 January 2023. Both times I had told the State [Solicitor's] Office that I wanted to fight the charge.
[49] Affidavit of Ms Taylor, par 9.
Ms Taylor did not attend the hearing of the application for forfeiture on 27 February 2023. The following exchange occurred between the learned magistrate and counsel for the State Solicitor:[50]
HER HONOUR: And on the previous hearing it looks like Ms Taylor was advised that the matter would proceed today and if she would fail to appear, obviously the order would be made in her absence.
Counsel: Yes. Yes, your Honour. That's my understanding.
HER HONOUR: Okay. So in relation to this matter, which is Perth, 49344 of 2022, the order will be made for the surety forfeiture in the sum of $10,000. Is that correct?
Counsel: Yes, your Honour. That's correct.
[50] Affidavit of Ms Sellers affirmed 28 February 2024, par 3.
The understanding reflected in this exchange was wrong. Ms Taylor had not attended any of the previous hearings.
Consequent upon the making of the order for forfeiture, the Magistrates Court sent Ms Taylor a 'Notice of Conviction' under s 69 of the Criminal Procedure Act. Section 69 provides that as soon as practicable after a court convicts an accused of a charge, the court must issue to the accused a notice that sets out certain information in relation to their conviction. This information includes the relevant offence and any sentence imposed.
The notice sent to Ms Taylor purportedly under s 69 described the offence as being 'Breach of Surety Undertaking' and the penalty as being 'Surety Forfeiture $10,000'.[51] However, Ms Taylor was not convicted of an offence and no conviction was actually entered. According to Mr Ravindran's e-mail to Ms Sellers, the s 69 notice is 'simply a document used by the courts to provide notification to an accused or Respondent of a financial amount that they have owing following a court proceeding'.[52] Echoing what I have said at [8] above and at risk of stating the obvious, a surety should not be sent a notice stating they have been convicted of a criminal offence when they have not been.
[51] Affidavit of Mr Jones, pages 21 - 23.
[52] Affidavit of Ms Sellers sworn 1 May 2024, page 11.

Disposition

The material before the learned magistrate was sufficient to prove Ms Taylor's liability under her surety undertaking. It was then for Ms Taylor to persuade the learned magistrate to decline to make an order for forfeiture, or alternatively, order that only part of the surety be forfeited.
The amended ground of review relies principally on an assertion that there was a denial of procedural fairness.

In the circumstances of this case, I consider there are two interrelated matters that I need to consider.
First, whether Ms Taylor was given a reasonable opportunity to present her case in response to the State Solicitor's application. If not, a denial of procedural fairness is established.
Second, if there was a denial of procedural fairness, whether it was material. In the circumstances of this case, that question is directed to whether there was a realistic possibility a different order could have been made if Ms Taylor had attended at the hearing on 27 February 2023 and presented her case. The question of materiality affects an assessment of whether there is jurisdictional error. It also informs an assessment of whether I should exercise the discretion under s 36(4) of the Magistrates Court Act to set aside the order for forfeiture made against Ms Taylor.

Was there a denial of procedural fairness?

On the evidence before me, I am satisfied that Ms Taylor was served with the State Solicitor's application. I am also satisfied that Ms Taylor informed the State Solicitor's Office, in effect, that she wished to oppose the making of the order. That is all relatively uncontroversial.
The notices of adjournment that were sent to Ms Taylor were clearly not appropriate. The notices specifically state that they are in respect of a criminal charge, not an application for forfeiture. The charge has a different charge number to the charges the subject of Mr Turnbull's bail undertaking. This reinforces that the notices concerned a separate charge brought against Ms Taylor.
The notices did not identify that what had been adjourned was the State Solicitor's application for forfeiture. It is possible to infer that was the purpose of the notices, given that was the only proceeding before the court concerning Ms Taylor's surety undertaking. However, the notices also could have been seen as suggesting there was an additional proceeding in place as well, namely Ms Taylor had been charged with an offence of breaching her surety undertaking. Ms Taylor in her affidavit says she was confused and speaks of wanting to defend 'the charge'.
Overall, the notices were materially misleading and had a significant capacity to cause confusion to Ms Taylor. It is that capacity to confuse which I consider is of significance to the disposition of this proceeding.
The e-mails and text messages sent by the Magistrates Court to Ms Taylor did not identify the subject matter of the hearing to which they related.
The final notice sent to Ms Taylor in respect to the hearing on 27 February 2023 said that the matter 'may' proceed in her absence. However, when the matter was last adjourned on 8 February 2023, the learned magistrate made clear that the matter would proceed in her absence.
On the other hand, from Ms Taylor's affidavit, it seems she understood that 'the matter' had been adjourned previously through to 14 December 2022 and 11 January 2023. That being said, her affidavit does reflect confusion as to what was happening, with Ms Taylor saying 'I still wanted to defend the charge about the surety but I was confused that there were two sets of charges (surety & criminal)'.
This confusion was exacerbated by reason of Ms Taylor being arrested on the Saturday prior to the hearing on 27 February 2023 (a Monday). An application was made to revoke her bail. The application was dismissed at 12.52 pm on 26 February 2023 (Sunday). She was then released with a new court date. Ms Taylor says in her affidavit that she 'had a new court date for [her] criminal matters'.[53] On the basis of the notices sent to her, these matters would include the matter listed on 27 February 2023.
[53] Affidavit of Ms Taylor, par 14.
In the circumstances of this case, the notices were inherently confusing. On a plain reading of them, they suggested that Ms Taylor had been charged with a criminal offence of breach of surety. They did not refer to the State Solicitor's application for forfeiture. They had the capacity to convey to Ms Taylor that it was not the forfeiture application which was before the court on 27 February 2023. This confusion goes to the substantive nature of the application before the court. It was then exacerbated by the events of 25 and 26 February 2023 and Ms Taylor's understanding that she had a new court date for her criminal matters.
It would have been prudent for Ms Taylor to check whether the court hearing on 27 February 2023 was proceeding. However, the pertinent issue is whether the notices and other communications sent to Ms Taylor provided her with reasonable notice that the forfeiture application would be heard that day. I do not think they did. In my view, overall, the communications with Ms Taylor created such an environment of confusion that they did not fairly inform her that it was the application for forfeiture that was listed for hearing on 27 February 2023. Accordingly, in my view, Ms Taylor was deprived of a reasonable opportunity to present her case in response to the forfeiture application. I am therefore of the view that Ms Taylor was denied procedural fairness.
Furthermore, at the hearing on 27 February 2023, when the order for forfeiture was made, the learned magistrate proceeded on the erroneous understanding that Ms Taylor had been informed at the prior hearing that if she did not attend on 27 February 2023, the order would be made in her absence. This was obviously of sufficient concern to the learned magistrate for her Honour to raise it with the State Solicitor's counsel. I do not think what occurred on 27 February 2023 is sufficient by itself to give rise to a denial of procedural fairness. However, it exacerbated the denial of procedural fairness. This is because the learned magistrate (quite rightly) was carrying out a second check to make sure Ms Taylor was apprised of what was happening. Unfortunately, that second check failed because the learned magistrate and the State Solicitor's counsel had an erroneous understanding of what had previously taken place.
For these reasons, Ms Taylor was denied procedural fairness in respect of the application for forfeiture.

Was the denial of procedural fairness material?

As I have explained at [15] above, to succeed on this review, Ms Taylor needs to establish that if she had attended and presented her case there was a realistic possibility that the learned magistrate could have made a different decision. This issue is directed to the circumstances as they existed on 27 February 2023, not as they exist now. It requires the application of s 49(1)(d) of the Bail Act to the circumstances of this case.
For ease of reference, I will set out again the relevant parts of s 49(1)(d):
(d) …the judicial officer may decline to make an order under that paragraph or may order forfeiture in part only where the surety attends and shows to the satisfaction of the judicial officer -
(i) that, by reason of a change of circumstances since the undertaking was entered into, an order for forfeiture, or for forfeiture in full (as the case may be), would cause excessive hardship to the surety or his dependants; and
(ii) that such hardship would not be relieved by the exercise of one or more of the powers conferred by section 59;
Section 49(1)(d) therefore requires consideration of three matters:
1.whether there has been a change in the surety's circumstances since entering the surety undertaking;
2.whether by reason of such change, forfeiture in full or part would cause excessive hardship to the surety;
3.whether any such hardship could be relieved by the exercise of the powers conferred by s 59.
In my view, there are two particular matters which are capable of demonstrating a change in Ms Taylor's circumstances.
The first concerns her criminal history. At the time Ms Taylor signed the surety undertaking (14 May 2022), she did not have any outstanding criminal matters. That then changed.
On 8 February 2023, Ms Taylor attended the Joondalup Magistrates Court for 'some criminal matters'.[54] These matters were a charge of trespass on a place without lawful excuse, being an offence against s 70A(2) of the Criminal Code (WA) and a charge of stealing, being an offence against s 378 of the Code. These offences were alleged to have been committed on 8 January 2023.[55] Ms Taylor was granted bail in respect of these charged offences.[56]
[54] Affidavit of Ms Taylor, par 10.
[55] Affidavit of Ms Sellers sworn 1 May 2024, page 5.
[56] Affidavit of Mr Ravindran, page 17, see e-mail and text message sent on 6 February 2023.
On 25 February 2023, Ms Taylor was arrested. The following day she faced the Perth Magistrates Court for two charges said to have been committed on 25 February 2023. These two charges were described by Ms Sellers in her affidavit affirmed 28 February 2024 as 'possession of a prescription drug and false details'.[57] Further, on 26 February 2023 an application to revoke Ms Taylor's bail was heard and dismissed.
[57] Affidavit of Ms Sellers affirmed 28 February 2024, par 6.
The charges against Ms Taylor taken as a whole had the potential to impact her in two ways. First, she faced the prospect of being ordered to pay further fines, so her financial position could become worse. Second, the conduct the subject of the charges could reflect a pattern of spiralling behaviour on Ms Taylor's part, such as to give rise to instability and reduce her prospects of obtaining employment.
The second matter is the value of Ms Taylor's car. There is at least a sensible prospect that the car would have reduced in value over the approximate nine-and-a-half-month period from when she signed the surety undertaking on 14 May 2022 to 27 February 2023. This may have necessitated a further assessment at the final hearing as to the value of the car, with a reasonable prospect that its estimated value had reduced such that her net assets were less than the amount of the surety undertaking. In this respect, the previous estimated value of her net assets equated precisely to the amount of the surety undertaking.
Ms Taylor also says the car was significantly damaged in an incident when her cousin was driving. However, the evidence does not demonstrate whether that incident occurred prior to the hearing on 27 February 2023. Accordingly, that is not a matter I can take into account as reflecting a change in circumstances as at 27 February 2023.
Overall, I am satisfied it would have been open to the learned magistrate to find that Ms Taylor's circumstances had materially deteriorated since she signed the surety undertaking.
In terms of whether, by reason of such a deterioration in circumstances, forfeiture of the surety amount in full or part would cause excessive hardship to Ms Taylor, the deterioration in circumstances (if found) had the capacity to impact her wellbeing, her financial position and her prospects of obtaining paid employment.
Moreover, the potential impact of such a change in circumstances must be looked at in the context of Ms Taylor's starting position when the surety undertaking was signed. The estimated net value of her assets equated to the surety sum of $10,000 and she was not in any paid employment. There is no suggestion on the evidence that Ms Taylor had accumulated further assets or had obtained paid employment since signing the undertaking. As at 2023, Ms Taylor was receiving Centrelink payments.[58]
[58] Affidavit of Ms Taylor, par 16.
In my view, it would have been open for the learned magistrate to have concluded that Ms Taylor's deteriorating personal and financial circumstances (if found) were such that an order for forfeiture of the entirety of the surety sum was capable of causing her excessive hardship and that such excessive hardship would not be relieved by exercising one of the powers in s 59 of the Bail Act.
Whether such a conclusion would have been reached depends on an assessment of Ms Taylor's circumstances as a whole. These include the potential sale price for the car, the extent to which her personal wellbeing was deteriorating, the possible outcomes she faced on her pending criminal charges, what prospect she had of obtaining paid employment and the extent to which her Centrelink payments provided her with a basic standard of living. If Ms Taylor's personal and financial circumstances had become dire, it is difficult to see how an order under s 59 for payment by instalments, or postponing payment, could alleviate the hardship of an order for payment of the entirety of the surety sum.
Accordingly, in my view, if Ms Taylor had attended court on 27 February 2023 and presented her case, there was a realistic possibility that a different decision could have been made by the learned magistrate. That is, there is a realistic possibility that the learned magistrate could have either declined to order forfeiture of the surety sum, or ordered that Ms Taylor pay only part of the surety sum.
I am therefore satisfied that the denial of procedural fairness is such as to occasion jurisdictional error.

Should an order be made setting aside the order for forfeiture?

Section 36(4) of the Magistrates Court Act provides that I may make an order setting aside the order for forfeiture.
In my view, the realistic possibility that the learned magistrate could have made a different decision is a strong factor in favour of my making an order that the order for forfeiture be set aside.
I take account of the delay in bringing this application. Ms Sellers' affidavit affirmed 28 February 2024 sets out a rudimentary explanation for the delay. Ms Sellers explains that Ms Taylor made an application for Legal Aid on 23 June 2023. An application was made to the court on 3 November 2023 to reduce the applicable filing fee for these proceedings. That application was approved on 20 November 2023. Ms Sellers says these proceedings could not be filed until the application for a reduced filing fee had been approved.[59]
[59] Affidavit of Ms Sellers affirmed 28 February 2024, pars 7 - 10.
I expect the filing of these proceedings could have been progressed more quickly, however, there is no suggestion on the material before me that the delay from 23 June 2023 onwards can be laid at Ms Taylor's feet.
The State Solicitor complains that if the matter is sent back to the Magistrates Court for reconsideration, then Ms Taylor's change in circumstances will be exacerbated given what has happened to the car. However, whether that is so depends on whether the car was damaged prior to, or after, the hearing on 27 February 2023. The State Solicitor has not sought to prove that the car was damaged after that hearing. Therefore, I cannot conclude this is a factor that operates against the exercise of the discretion to set aside the order.
Moreover, it is difficult not to have a real sense of unease as to what has happened here. The notices sent to Ms Taylor were inapt and confusing. This was not because of any genuine mistake, but rather because their use was perceived to be a pragmatic way to operate within an inadequate system. Pragmatism does not justify sending people notices which wrongly assert they have been charged with, and convicted of, a criminal offence. Also, unfortunately, the learned magistrate's 'second check' on 27 February 2023 failed because of a misapprehension on her Honour's part, and on the part of the State Solicitor's counsel, as to what had taken place at the previous hearing.
In my view, in the circumstances of this case, it is appropriate to make an order under s 36(4) of the Magistrates Court Act setting aside the order for forfeiture of the surety sum.
Given these proceedings have been dealt with on the basis that the application for a review order and the final order were heard at the same time, I will ask the parties to formulate the appropriate form of order to give effect to these reasons. The State Solicitor should indicate whether they want the application for forfeiture to be reconsidered by the Magistrates Court.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SP
Associate to the Hon Justice Lemonis
26 AUGUST 2024