Application for judicial review made under s 36 of the Magistrates Court Act 2004 (WA)
Applicant aggrieved by orders allowing prosecution witnesses to give evidence by video link
Quick Take
1At the first stage of an application under s 36 of the Magistrates Court Act 2004 (WA) and O 56A of the Rules of the Supreme Court 1971 (WA), a review order will be made only if the material shows an arguable case of jurisdictional error, error of law on the face of the record or denial of natural justice with reasonable prospects of success. The court need not accept uncritically a bald, self-serving affidavit assertion that is inherently improbable given contemporaneous documents (applying Eng Mee Yong v Letchumanan s/o Velayutham). On the facts, the claim of non-receipt of an email sent to the applicant's own nominated email address was given little weight.
2A requirement of personal service is satisfied if the document comes to the actual attention of the person to be served, and service by email is permitted by the Courts and Tribunals (Electronic Process Facilitation) Act 2013 (WA).
3Even where a denial of procedural fairness is alleged, the applicant must show the error was material, meaning there was a realistic possibility the decision could have been different. Although that threshold is not demanding, it is not met where the applicant does not identify what submissions or evidence would have been advanced, or even whether the application would have been opposed. Relief may also be refused in the discretion because of the undesirability of fragmenting criminal proceedings where the complaint was not first raised in the Magistrates Court.
