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…

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 Taylor v Woods

Details

AGLC: Taylor v Woods [2024] WASC 294
Case: [2024] WASC 294
Decision Date: 28 AUGUST 2024

CaseChat Overview and Summary

The case of Taylor v Woods concerns a dispute over the enforcement of a surety undertaking provided under the Bail Act 1982 (WA). The applicant, Ms Taylor, had provided a surety undertaking on behalf of Mr Woods, the accused. The dispute arose when the applicant failed to attend a hearing to contest the forfeiture of the surety money. Consequently, an order was made for Ms Taylor to pay the surety amount. The applicant then applied for a review of this order, arguing that she was denied procedural fairness due to inadequate notices sent to her regarding the hearing.

The court was required to decide whether the applicant was indeed denied procedural fairness and, if so, whether this denial was material to the outcome. The applicant argued that the notices sent to her were inapt and confusing, which allegedly prevented her from being heard and thus denied her procedural fairness. The court had to consider whether the lack of procedural fairness was material to the decision made, and whether the applicant could demonstrate a realistic possibility that a different decision could have been made had she been properly informed.

In its decision, the court acknowledged that a denial of procedural fairness could constitute jurisdictional error, but whether it does so depends on whether the lack of procedural fairness was material to the decision. The court held that the notices sent to the applicant were indeed inadequate, as they did not provide clear and concise information regarding the hearing. This insufficiency meant that the applicant was not given a reasonable opportunity to be heard, which is a fundamental requirement of procedural fairness. The court concluded that there was a realistic possibility that a different decision could have been made if the applicant had been properly informed. Consequently, the court granted the application for review and set aside the order for the applicant to pay the surety amount.

The court's final orders included setting aside the order for Ms Taylor to pay the surety amount and granting the application for review on the grounds that Ms Taylor was denied procedural fairness due to the inadequate notices. The court also made observations regarding the procedures used by the Magistrates Court when dealing with applications for forfeiture of surety, highlighting the importance of clear and concise communication to ensure procedural fairness.

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 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. 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).