JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BANNISTER -v- CASSAR [2022] WADC 18
CORAM: VERNON DCJ
HEARD: 11 FEBRUARY 2022
DELIVERED : 25 FEBRUARY 2022
FILE NO/S: APP 29 of 2021
BETWEEN: DONNA-LEE BANNISTER
Appellant
AND
CHARMAGNE MARCELLE CASSAR
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B AYLING
File Number : MC/CIV/PER/RO/4152/2020
Catchwords:
Family violence restraining order - Reasonable opportunity to be heard - Summary dismissal - Frivolous and vexatious
Legislation:
District Court Rules 2005 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Ms S A Auburn |
| Respondent | : | Mr A Mossop |
Solicitors:
| Appellant | : | Albert Wolff Chambers |
| Respondent | : | Solve Legal Pty Ltd (NSW) |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Dey v Victorian Railway Commissioners (1948-1949) 78 CLR 62
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 [28] and [29]; (1999) 84 FCR 438
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Pickering v Centrelink [2008] FCA 561
Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104
Re Rules of the Supreme Court 1971 (WA) Ex parte Gates [2018] WASC 213
Rowe v Stoltze [2013] WASCA 92
VERNON DCJ:
On 29 September 2020, the appellant, Donna Lee Bannister, obtained an interim family violence restraining order (FVRO) against the respondent, Charmagne Marcelle Cassar.
The appellant brings this appeal pursuant to s 64 of the Restraining Orders Act 1997 (WA) (the RO Act) and s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) from a magistrate's decision on 20 April 2021 to refuse to make a final FVRO in favour of the appellant against the respondent and to order that the appellant pay the respondent's costs of the application for the FVRO.
Grounds of appeal
The grounds of the appeal, as orally amended with leave on 11 February 2022, are as follows:
1.The learned Magistrate erred in failing to provide the Appellant, a self-represented litigant, a reasonable opportunity to be heard.
2.The learned Magistrate erred in law in dismissing the application without evidence being adduced.
Particulars of Ground 2
a)Pursuant to s.42(4)(b) of the Restraining Orders Act 1997 (the Act), it was open to the learned Magistrate to admit as evidence, the evidence given earlier in support of the interim restraining order in circumstances where the Appellant was available to be cross examined on that evidence.
b)The learned magistrate erred in law in dismissing the application as there was no evidence on which to base that decision.
3.The learned magistrate erred in law in failing to allow the Appellant to have a support person.
Particulars of Ground 3
a)This was contrary to s. 44D of the Act, where there is such an entitlement for the person seeking to be…
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- Bannister v Cassar [2022] WADC 18
- Case
- [2022] WADC 18
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