Bannister v Cassar - [2022] WADC 18

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
Strahan v Brennan [2014] WASC 190
Tobin v Dodd [2004] WASCA 288
Woodley v Woodley [2018] WASCA 149

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…

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 Bannister v Cassar

Details

AGLC: Bannister v Cassar [2022] WADC 18
Case: [2022] WADC 18
Decision Date

CaseChat Overview and Summary

In this appeal, the appellant, Donna-Lee Bannister, sought to appeal against a decision of the Magistrates Court of Western Australia to refuse to make a final family violence restraining order in favour of the appellant against the respondent, Charmagne Marcelle Cassar, and to order that the appellant pay the respondent's costs of the application for the final restraining order. The appeal was heard on 11 February 2022. The grounds of appeal were that the learned Magistrate erred in failing to provide the Appellant a reasonable opportunity to be heard, in dismissing the application without evidence being adduced, in failing to allow the Appellant to have a support person and in ordering costs in the sum of $6,600 that were not appropriate. The respondent accepted that the evidence that the appellant had given before the magistrate presiding on 29 September 2020 was evidence that was before the magistrate on 20 April 2021, although it did not appear that the magistrate had the transcript before her. The respondent accepted that the magistrate had an obligation to give a self-represented party some latitude, and to assist them to understand the court's procedure, but said, as I understood it, that to review the evidence that had been led before would be to assist the appellant in the presentation of her case, which was not required. The respondent submitted that the appellant was given sufficient notice that the application for a final order would be heard on 20 April 2021, had a reasonable time to prepare her case, and was given the opportunity to explain her case on that day. The respondent submitted that the magistrate had determined, as it was open to her to do, that the appellant had refused to explain her claim despite being given the opportunity on several occasions to do so. The appeal was allowed on the grounds that the learned Magistrate erred in failing to provide the Appellant a reasonable opportunity to be heard, in dismissing the application without evidence being adduced and in ordering costs in the sum of $6,600 that were not appropriate. The appeal was dismissed on the ground that the learned Magistrate erred in failing to allow the Appellant to have a support person.

Orders