Issue of restraining order in absence of defendant
99C Issue of restraining order in absence of defendant
A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the application and failed to appear in obedience to the summons.
A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the application, but in that case, the Magistrates
Court must summon the defendant to appear before the Magistrates
Court to show cause why the order should not be confirmed.
The
Magistrates Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Magistrates Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
The
Magistrates Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment.
The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Magistrates Court is satisfied—
that a later date is required to enable the summons to be served; or
that there is other adequate reason for fixing a later date.
A restraining order made under subsection (2)—
continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing; but
will not be effective after the conclusion of the hearing to which the defendant is summoned, or the adjourned hearing, unless the
Magistrates Court confirms the order—
on failure of the defendant to appear at the hearing in obedience to the summons; or
having considered any evidence given by or on behalf of the defendant; or
with the consent of the defendant.
The
Magistrates Court may confirm a restraining order in an amended form.
If a hearing is adjourned under this section, the Magistrates Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment.
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