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Jones vs. Johnston - (02 Jun 2020)

When reviewable error is established, discretion to grant relief under Section 36(4) of the Magistrates Court Act, 2004 is enlivened


In present matter, on 4 September 2015, the second Respondent 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 second Respondent filed an application to extend the duration of the restraining order in the Magistrates Court at Carnarvon.

On 29 September 2017, the magistrate heard the application to extend the restraining order. The magistrate established that there was no attendance by the applicant. There is a service certificate recording that the applicant was served with the order. The applicant was convicted of breaching the restraining order by offences that occurred during the extension period. She has separately applied for leave to appeal against her conviction.

Section 45 of the Restraining Orders Act, 1997 (WA) governs applications to vary or cancel restraining orders, including applications to vary an order by extending the duration of the order. Section 47(1) of the Act provides that, if an application to vary the restraining order is made, the registrar is to fix a hearing for that purpose and summons the person who is bound by the order to the hearing. A summons under Section 47 of the Act must be served in accordance with Section 54 of the Act.

Section 48 of the Act governs what is to occur if a person summonsed to attend a hearing under Section 47(1) does not attend. Relevantly, if the Court is satisfied that the summonsed person was served with a summons, it is to hear the matter in the absence of the summonsed person, or otherwise the court is to adjourn the hearing. Section 49 of the Act provides that the court, at a hearing fixed under Section 47 of an application to vary or cancel a restraining order, may dismiss the application, vary the order or cancel the order. The power to take any of these steps is expressed, however, to be 'subject to section 48'.

The first Respondent's authority to decide to extend the restraining order was not conditional upon actual service of the summons on the applicant, but rather on the court being satisfied that the summons had been served on the applicant. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact.

Where a state of satisfaction is a jurisdictional fact 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-maker commits a jurisdictional error. The evidence on the review order hearing was the same as it was at the hearing of the review order application.

There was no evidence before the first Respondent on 29 September 2017 upon which she could have been satisfied that, the Applicant had been served with the summons. Accordingly, the first respondent committed a jurisdictional error. As a reviewable error was established under Section 36(1), the discretion to grant relief under Section 36(4) of the Magistrates Court Act, 2004 (WA) was enlivened. There were no discretionary reasons for not setting aside the order of 29 September 2017. Consequently, the decision to extend the restraining order is quashed.


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