De Campe v Mangan
[2024] WADC 56
•16 JULY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DE CAMPE -v- MANGAN [2024] WADC 56
CORAM: PALMER DCJ
HEARD: 28 MAY 2024
DELIVERED : 16 JULY 2024
FILE NO/S: APP 3 of 2024
BETWEEN: NIKKI ELLEN DE CAMPE
Appellant
AND
BRIAN MANGAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE STOCKDALE
File Number : EX/RO/4/2022
Catchwords:
Appeal - Application to vary a final violence restraining order - Whether order expired - Whether application to vary restraining order can be made after order expired
Legislation:
Interpretation Act 1984 (WA), s 75
Restraining Orders Act 1997 (WA), s 45, s 54, s 58, s 64
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr A J C Mossop |
| Respondent | : | In person |
Solicitors:
| Appellant | : | McNally & Co |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Bindai v Armstrong [2016] WASC 341
Bindai v Jugarie [2016] WADC 68
Brocklehurst v Wolinski [2015] WADC 36
DDD v Magistrates' Court of Victoria [2023] VSC 89; (2023) 70 VR 1
KSJ v GJA [2021] WASCA 98
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 407 ALR 222
State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118
Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37
PALMER DCJ:
Introduction
By way of a notice of appeal dated 9 January 2024, the appellant (Ms De Campe) appeals from a decision of Magistrate Stockdale to dismiss an application to vary a violence restraining order (Variation Application) made on 19 December 2023 (December Order). The Variation Application sought to extend a final violence restraining order that the magistrate had made in October 2023 (October Order).
The magistrate dismissed the Variation Application for two reasons. First, he considered that he did not have the power to make the order sought because the Variation Application had not been served until after the October Order had expired. Secondly, he indicated that he would not have extended the October Order in any event given the nature of the relevant contact between Ms De Campe and the respondent (Mr Mangan) as well as the impact of the order on Mr Mangan.
This appeal is made pursuant to s 64 of the Restraining Orders Act 1997 (WA) (Restraining Orders Act). Ms De Campe submits that the magistrate erred in concluding that he lacked the power to make the order sought and in not granting the Variation Application.
Factual background
Ms De Campe's initial application for a violence restraining order
On 6 December 2022, Ms De Campe applied for a violence restraining order against Mr Mangan.
The application was in a standard form. Part of that form asked Ms De Campe to summarise the respondent's behaviour. In that part of the application she wrote, 'physical intimidation', 'verbal abuse', 'harassment' and 'repeated derogatory remarks'.
In another part of the application Ms De Campe indicated that she wanted her application heard in the absence of the respondent.
In a part of the application which asked whether the incidents had been reported to the police and if so, what the relevant incident numbers were, Ms De Campe recorded two incident numbers.
The application was supported by an affidavit affirmed by Ms De Campe on 2 December 2022. The affidavit was in the form of a standard form affidavit that required Ms De Campe to fill in parts of the affidavit.
The standard form affidavit included a section marked 'Incident History - (Details of respondent's behaviour that has occurred relating to violent personal offences, threats and the like.)'. In that section Ms De Campe gave the date as 8 May 2022 and described the place as being 'dune surf beach Exmouth'. She provided the following description of the incident:
IR 160522090013851 - on the 8th May 2022, was surfing at the local beach in the morning, I was physically and verbally abused by [Mr Mangan] in the water,
also
IR 151122103017879 - verbal abuse of myself and to my partner at IGA.
The numbers given by Ms De Campe were the police incident numbers she referred to in her application.
In the part of the affidavit marked '[a]s a result of this Incident I suffered the following injuries', Ms De Campe wrote 'slight bruising'.
An interim order is made
On 13 December 2022, the Magistrates Court in Exmouth made an interim restraining order with a duration of 12 months.
In reaching his decision to make the order that he did, the magistrate took into account both what occurred on 8 May 2022 and the verbal abuse at the IGA.[1]
[1] 13 December 2022, ts 6 - ts 7.
The terms of the order made included terms that Mr Mangan must not:
communicate or attempt to communicate with the Person Protected by any means whatsoever including SMS or text messages or any other electronic means,
behave in an intimidatory, offensive or emotionally abusive manner towards the Person Protected,
harass the Person Protected by any electronic means, including by using the internet and any social network application (such as 'facebook') to depict or refer in any offensive manner to the person protected,
enter or remain upon any premises where the Person Protected lives or works or be within 50 metres of the nearest external boundary of those premises,
approach within 25 metres of the Person Protected,
approach or remain within 5 metres of any property (including vehicles) of, or under the control of, the Person Protected,
The hearing took place in Mr Mangan's absence. This is consistent with the request made by Ms De Campe in her application that the application be heard in his absence.
Mr Mangan objects to the interim order
On 29 December 2022, Mr Mangan lodged an objection to the interim restraining order that had been granted. That objection noted that the order prevented him from going where he normally lives.
Mr Mangan's objection was initially listed for a hearing on 14 February 2023 and was later adjourned until to 15 August 2023 for a mention hearing.
The interim order is cancelled
On 15 August 2023, neither Ms De Campe, nor Mr Mangan appeared and Magistrate White cancelled the interim order.
Ms De Campe applies for the interim order to be reinstated
On 5 September 2023, Ms De Campe applied to the Magistrates Court to set aside the cancellation of the interim order.
This application was supported by an affidavit from Ms De Campe in which she explains that a Western Australian Police officer had advised Ms De Campe that the 'August case was off', which she understood to mean that the matter had been adjourned to a later date.
On 27 September 2023, the application was initially listed for hearing at Karratha Magistrates Court on 9 October 2023 and then adjourned to 24 October 2023.
The hearing on 24 October 2023
The hearing on 24 October 2023 was held before Magistrate Stockdale in the Magistrates Court of Western Australia at Exmouth. Ms De Campe was represented by counsel, Ms Solliss. Mr Mangan represented himself.
Magistrate Stockdale set aside the cancellation of the interim order and reinstated it. He indicated that he was satisfied that there was a sound reason for Ms De Campe's failure to attend the hearing on 15 August 2023.
The magistrate explained his decision to Mr Mangan and raised the possibility of Mr Mangan agreeing to a conduct agreement but Mr Mangan indicated that he would not.
Later, after the magistrate had explained the significance of the order to Mr Mangan, counsel for Ms De Campe raised the need to bring the restraining order application back on for a mention. The magistrate indicated that he would do so later in the day, after the criminal trial. The matter was then adjourned.
The magistrate called the matter back on later that day. I infer that this was after the criminal trial. He indicated to Mr Mangan that a hearing would be required if Mr Mangan objected to the making of a final order, after the date fixed for the criminal trial for the breaches of the violence restraining order. The magistrate indicated that he was inclined to list that hearing for 24 January 2024.
After some discussion with the magistrate, Mr Mangan indicated that he would agree to a conduct order. The following exchange occurred:[2]
[2] ts 13; Magistrate's Court File, page 150.
HIS HONOUR: So you're wanting to maintain that objection? You're wanting that order to continue through to trial?
MANGAN, MR: Yes. I've got no choice. Yes.
HIS HONOUR: Well, no, your choices are pretty simple. Your choice is to agree to a conduct agreement order in the same term, at which point the order will expire on 13 December.
MANGAN, MR: Yes.
HIS HONOUR: That's a without fault admission. Not an acceptance of any of the other charges. There is then going to be a criminal trial about the other breaches of violence restraining order.
MANGAN, MR: Just want this chick to leave me alone and stop harassing me through the court system, however I can get that.
HIS HONOUR: Well, your best option for that is to agree to a conduct agreement order.
MANGAN, MR: Righty-o, your Honour. No worries.
HIS HONOUR: All right.
MANGAN, MR: What does that mean?
HIS HONOUR: So, the order remains in place until 13 December on a without fault basis.
MANGAN, MR: Yes.
The matter was adjourned. However, it was necessary for the magistrate to call the matter back on. The following is recorded in the transcript:[3]
HIS HONOUR: All right. I'm recalling this matter in the absence of Mr Mangan, who has left the court precincts and who also is no longer answering his phone because it has been brought to my attention that I've put into place a conduct agreement order in circumstances where this is not a family violence restraining order. Given Mr Mangan's express view that he simply wishes the matter to be at an end, I'm going to give effect that wish and withdraw the objection on his behalf to the violence restraining order, while noting that he does not admit the allegations which led to the violence restraining order.
Despite that, I've obviously made findings of fact in relation to the assault matter, and I consider that it's appropriate that the order is made final and that the objection is withdrawn. So in those circumstances, the order becomes final with the duration of 12 months from 13 December 2022. All of the terms of that order remain the same as they would have under a conduct agreement order, had that been legally possible. So that is now complete. Should Mr Mangan take issue with this decision, he's at leave to bring the matter on and we can reventilate the issue. All right. Thank you, Ms Solliss.
SOLLISS, MS: Thank you, sir.
HIS HONOUR: That completes the matter.
[3] ts 16; Magistrate's Court File, page 153.
The magistrate made a final order in the same terms as the interim order - the October Order.[4]
Ms De Campe applies to vary the October Order
[4] Magistrate's Court File, page 23ff.
On 11 December 2023 Ms De Campe made the Variation Application, applying to vary the duration of the October Order by extending its expiry from 12 December 2023 to 12 December 2024.[5]
[5] Magistrate's Court File, pages 18 - 20.
On 12 December 2023, a Restraining Order Summons was issued to Mr Mangan.[6] A registrar of the Magistrates Court wrote to Ms De Campe informing her that a summons had been delivered to the Western Australian Police Information Capture Centre where arrangements would be made for service. Ms De Campe was notified that her application had been set down for hearing at 9.30 am on 19 December 2023.
[6] Magistrate's Court File, pages 13 - 16.
The Restraining Order Summons included a certificate of service. In the part of the certificate titled 'details of service' and 'place where summons was recorded' was written 'PO Box 915 Exmouth'. The person who had completed the certificate had ticked a box saying that they had posted the summons. The certificate was dated 12 December 2023.
The hearing on 19 December 2023
The hearing on 19 December 2023 was held before Magistrate Stockdale in the Magistrates Court of Western Australia at Exmouth. Ms De Campe was represented by counsel, Mr Mossop. Mr Mangan appeared and represented himself.
The magistrate indicated to counsel for Ms De Campe that he had a difficulty with the application because the October Order had lapsed before the Variation Application was served. The following exchange occurred:[7]
[7] ts 1 - ts 3; Magistrate's Court File, pages 128 - 129.
HIS HONOUR: Okay. All right. Look, I've seen this application, Mr Mossop. The difficulty I have with it is that it has been served out of time, so the restraining order has already lapsed.
MOSSOP, MR: Served or filed?
HIS HONOUR: Served. Yes, served, Mr Mossop. So, it has been served on 12 December by post. Sorry, Mr Mossop, can you hear me?
MOSSOP, MR: Yes. Sorry. I beg your pardon, your Honour. Yes.
HIS HONOUR: No. That's all right. No, no. I just was making sure the link's still up. Yes, we've just been having - - -
MOSSOP, MR: Okay.
HIS HONOUR: - - - some issues with links. Yes. So, it has been served - it has been served - the application to vary the restraining order was made on 11 December. The issue with that - - -
MOSSOP, MR: Yes.
HIS HONOUR: - - - then, is that it has then been served on Mr Mangan via post on 12 December, which would mean that deemed service would be, at earliest, the Monday or, at earliest, the Wednesday, sorry. Sorry, the Wednesday, which means that the order has expired. Look, I'm yet to ask Mr Mangan when he actually received the summons. But look, this is an application which was contemplated on behalf of Ms De Campe on the last appearance when Ms Solliss appeared for Ms De Campe.
MOSSOP, MR: Yes.
HIS HONOUR: So, look, in my view, there has been ample time to make that application to extend it. I've also given an indication previously that it wouldn't be extended in light of the nature of the contact, which was the allegation of the assault trial. I obviously know nothing about - beyond the prosecution notices for the other matters. But look, it just doesn't seem to me, in these circumstances, that - well, personally, I don't have power to extend it.
Secondly, even if the application was made in time, unless there was something new beyond the matters that have occurred, look, I would be reluctant to extend it because of - look, the fairly significant impact that it has had in relation to Mr Mangan and curtailing his ability to move in the Exmouth area, having been a long-term resident, in terms of his ability to attend a local surf break and, given the relatively trivial nature of the assault suffered by Ms De Campe. So, even if it was within time, I wouldn't have been prepared to extend the order in any event.
There was then some discussion about the operation of s 45(6) of the Restraining Orders Act and the postal rule:[8]
[8] ts 3 - ts 5; Magistrate's Court File, pages 129 - 131.
MOSSOP, MR: If the court pleases. On the topic of the timing, I think we had been proceeding on the basis that section 45, subsection (6) provides that if the application is made within time, then the order is not to expire until the application is determined.
HIS HONOUR: On the basis of 45 - - -
MOSSOP, MR: Six.
HIS HONOUR: If the person bound by the order has been served with the summons under section 47?
MOSSOP, MR: Yes.
HIS HONOUR: Yes.
MOSSOP, MR: And then, 47 provides for the registrar fixing a hearing for the purposes of the application and the summons to be served, but - - -
HIS HONOUR: Yes. And that's it.
MOSSOP, MR: - - - it doesn't provide for - - -
HIS HONOUR: That's the issues. He hasn't been served with the summons.
MOSSOP, MR: I think, yes - I think our position would be, reading those two provisions together, it's not the service that is the - the matter that stops time, it's the application.
HIS HONOUR: No, no. Because the - subsection (6) is read together, so if the application is made to vary, but then it's qualified by - it's not to expire if the person bound by the order - that's Mr Mangan - has been served with a summons under section 47. So, that, in my view, qualifies it. So, he would then need to have been either physically served or else served appropriate via post in order for - for that to - for that to preserve the existence of the order. So, look, that, in my view, doesn't have - wouldn't have the effect of extending the order, in any event.
MOSSOP, MR: If the court pleases.
HIS HONOUR: All right.
MOSSOP, MR: And just in - on the topic of service, your Honour is referring to the registrar issuing the summons pursuant to 47?
HIS HONOUR: No. I'm referring to - I'm referring to the summons being served on Mr Mangan by the police. So, the date that I have on the certificate of service indicates that the summons was served by delivering - posting it to a PO Box at - PO Box 915, Exmouth, on 12 December. So, look, as I understand it, that would mean that, at the earliest, it would be deemed to be served on the 13th, which would mean it's out of time.
MOSSOP, MR: There wouldn't be a - I'm not sure if the - how it works, the postal service, but it's not deemed to be served at the time of post?
HIS HONOUR: No.
MOSSOP, MR: The postal - the postal rule?
HIS HONOUR: No, that's not my understanding.
MOSSOP, MR: It may not matter, your Honour, given what your Honour has indicated, and you being seised of the application.
HIS HONOUR: Okay.
MOSSOP, MR: I just wanted to clarify it for the client's questions at my end.
HIS HONOUR: Look, I can't immediately bring it up, Mr Mossop, but look - - -
MOSSOP, MR: May it please your Honour.
HIS HONOUR: I'm certain that postal service is not deemed beyond before the next day, so look, and given my other view, look, the order - the order has therefore lapsed. All right. Is there anything further, Mr Mossop?
MOSSOP, MR: Not for my part, your Honour. No.
The magistrate made an order dismissing the application - the December Order[9] which is the order the subject of the present appeal.
[9] Magistrate's Court File, page 5.
Appeals under the Restraining Orders Act
Section 64 of the Restraining Orders Act
By s 64(1)(b)(ii) of the Restraining Orders Act, a person aggrieved by a decision of a court to refuse to make, vary or cancel a final order may appeal that decision in accordance with s 64. Section 3 of the Restraining Orders Act defines final order as follows:
final order means any of the following -
…
(b)in relation to a VRO or MRO, a consent order;
(c)a restraining order that becomes a final order under section 32;
(d)a restraining order made under section 40(3);
(e)a restraining order made at a final order hearing;
(f)a restraining order made under section 49(1)(b) to vary a final order, being a replacement or additional final order made under that section;
(g)a restraining order that is a final order under section 63(4a) or 63A(3);
Section 64(1) of the Restraining Orders Act is exhaustive so as to exclude the general and broad right of appeal conferred by s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (Magistrates Court Civil Proceedings Act) against orders made in the course of proceedings in the Magistrates Court.[10]
[10] KSJ v GJA [2021] WASCA 98 [82].
In enacting s 64, the legislature has made elaborate provision stipulating the specific kinds of decisions under the Restraining Orders Act in respect of which a right of appeal against the decision is conferred. The right of appeal under s 64 of the Restraining Orders Act is limited to decisions of a court on the matters listed in s 64(1)(a) and s 64(1)(b) of the Restraining Orders Act.[11]
Appeals under Part 7 of the Magistrates Court Civil Proceedings Act
[11] KSJ v GJA [86].
Section 64(2) of the Restraining Orders Act provides that an appeal is to be made in accordance with Part 7 of the Magistrates Court Civil Proceedings Act.
An appeal from a decision of a magistrate to the District Court is by way of rehearing. It is not a hearing de novo. Given the appeal is by way of a rehearing it is necessary for the appellant to demonstrate error in the court below. This error must be a legal, factual or discretionary error.[12]
[12] Brocklehurst v Wolinski [2015] WADC 36 [13] - [15]; Ward v West Coast Suzuki Marine Pty Ltd [2021] WADC 37.
The Grounds of Appeal
The Grounds of Appeal were as follows:
1.The learned magistrate erred in concluding that he did not have power to extend the VRO.
1A.There was no power to vary the order and therefore the decision to dismiss the application to vary was of no legal effect.
1B.The learned magistrate failed to consider the legal effect of the service certificate.
1C.The learned magistrate erred by proceeding on the basis that the date of service was significant for the purposes of considering whether the Court had power to vary the order.
2.The learned magistrate erred in concluding that the VRO should not be extended.
2A.The learned magistrate failed to take into account that the application did not rely solely on the earlier assault.
2B.The learned magistrate failed to take into account the considerations required by s 12 of the Restraining Orders Act 1997 (WA).
2C.The appellant was denied procedural fairness.
I granted Ms De Campe leave to amend the Grounds of Appeal to include Grounds 1A to 1C and Grounds 2A to 2C at the hearing of the appeal. I did so on the basis that each of those grounds were said by counsel for Ms De Campe to particularise Grounds 1 and 2.[13] I will consider each of Grounds 1A to 1C and Grounds 2A to 2C separately.
[13] ts 17 - ts 18.
Ground 1A
Ms De Campe's submissions on Ground 1A
Ground 1A is that there was no power to vary the order and therefore the decision to dismiss the application to vary was of no legal effect.
Ms De Campe submitted that to enliven the jurisdiction to make a final order, the Magistrates Court needed to first comply with the express requirements under the Restraining Orders Act, including fixing a mention hearing (if necessary), fixing a final order hearing, serving Mr Mangan with a summons and then, if Mr Mangan did not attend, following the process for determining the matter in the absence of Mr Mangan (which includes being satisfied Mr Mangan had been served with the summons).
Ms De Campe submitted that without first complying with the statutory preconditions, the court had no power to make a final order. It was said that while at the hearing on 24 October 2023 the magistrate validly set aside the earlier decision to cancel the interim order, the magistrate's decision later that day to make a final order was made without power or jurisdiction and therefore had no legal effect. It was contended that this meant that the interim order remained in force.
Ms De Campe contended that as the interim order was still in force, at the hearing on 19 December 2023 the court had no power to consider the application to vary a final order because there was no final order in effect. It was said that the court's dismissal of the application to vary the final order had no legal effect, because there was no final order to vary.
Ms De Campe further submitted that even if the hearing on 19 December 2023 was conducted on the basis that there had been an application to vary an interim (not final) order, the court did not determine the application in accordance with law. It was said that the question of timing of the application and service of the summons would not have arisen because the interim order would not have expired on 12 December 2023 and would have instead remained in force pending a final order hearing.
Disposition of Ground 1A
The present appeal was made under s 64(1)(b)(ii) of the Restraining Orders Act against a decision of a court to refuse to vary a final order.
The magistrate refused to make the variation order Ms De Campe sought because he considered he lacked the power to do so. Ground 1A does not identify a reason why the magistrate's conclusion that he lacked power was wrong. Instead, it advances a different reason to support the magistrate's conclusion.
By asserting a different basis for supporting the conclusion reached by the magistrate, Ground 1A is akin to a notice of contention that might have been filed by Mr Mangan. It does not provide a basis upon which this appeal could be allowed. Even if the magistrate lacked the power to make the order, the result would have been the same - the Variation Application would have been dismissed (for want of jurisdiction).
Further, it may be doubted that Ground 1A advances a ground of appeal that can be made under s 64(1)(b)(ii) of the Restraining Orders Act. An appeal only lies pursuant to s 64(1)(b)(ii) against a decision of a court to refuse to make, vary or cancel a final order. If there was no final order in effect, no appeal would lie under s 64(1)(b)(ii). It is the Supreme Court rather than this court, that has the jurisdiction to determine whether the magistrate made a jurisdictional error when he made the October Order.[14]
[14] Bindai v Jugarie [2016] WADC 68 [34] - [38].
Ms De Campe submits that a decision made by the magistrate is valid until it is set aside by a superior court. In support of this submission Ms De Campe referred to the decision of Gaegler J in Stanley v Director of Public Prosecutions (NSW) (Stanley).[15] In that case Gaegler J referred to his earlier observation in New South Wales v Kable[16] that a decision of a superior court is valid unless and until it is set aside. He distinguished the position of superior courts from the position of inferior courts. In the case of inferior courts he said that an order made without jurisdiction has no legal force. In Stanley Gaegler J said[17] that an order of the Local Court of New South Wales made without jurisdiction was 'not an order at all'. The same might be said about the Magistrates Court in this State, where an order made without jurisdiction has no legal force.[18]
[15] Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 407 ALR 222 [15] - [16].
[16] State of New South Wales v Kable [2013] HCA 26; (2013) 252 CLR 118 [56].
[17] Bindai v Armstrong [2016] WASC 341; Stanley [15].
[18] Stanley [17].
It seems to me that I lack the jurisdiction to determine this ground of appeal. This is evident when consideration is given to the relief that Ms De Campe seeks. She submits that if I were to allow Ground 1A, I should set aside the Magistrate's purported dismissal of the variation application and reinstate the interim order. But to allow Ground 1A I would first have to determine that the magistrate made no final order. Such a determination would reveal that I had no jurisdiction under s 64(1)(b)(ii) of the Restraining Orders Act because there was no final order to appeal from. I would therefore lack jurisdiction to grant the relief sought.
Ms De Campe also submits that I should make an order under s 36(7) of the Magistrates Court Act 2004 (WA) (Magistrates Court Act) to either remit the appeal to the Supreme Court or adjourn the appeal to enable an application to be made to the Supreme Court.
While I express no final view about the merits of Ground 1A, this is not a case in which the arguments advanced are so indisputably correct as to make it plain that the matter should be remitted, or adjourned.
Further, Ground 1A does not overlap with the other grounds of appeal. It is not apparent to me that the resolution of the other grounds of appeal should be deferred.
Mr Mangan made it plain at the hearing of the appeal that he wished the appeal to be concluded without further delay. His position is not unreasonable and I am reluctant to delay matters unnecessarily.
It seems to me that if I dismiss Ground 1A for want of jurisdiction, this would not preclude Ms De Campe from applying to the Supreme Court pursuant to s 36(1) of the Magistrates Court Act if she considered necessary.
For these reasons, I will dismiss Ground 1A for want of jurisdiction. In dismissing this ground, I do not express any view about whether or not the magistrate had the jurisdiction to make the October Order as I do not consider it appropriate for me to do so.
Ground 1B
Ms De Campe's submissions on Ground 1B
Ground 1B asserts that the learned magistrate erred in failing to consider the legal effect of the service certificate.
Ms De Campe submitted that in the absence of evidence to the contrary (of which there was none), the certificate was sufficient proof that the summons was served on that day.
It was submitted that the magistrate seemingly overlooked the legal significance of the certificate and instead referred to 'deemed service' (a concept not referred to in s 58 or anywhere else in the Restraining Orders Act) as occurring on 13 December 2023 (or later). It was said that the magistrate's finding of fact was clearly contrary to the proof of service certificate, and there was no evidence adduced to the contrary.[19]
Disposition of Ground 1B
[19] Appellant's Outline of Submissions dated 9 May 2024 (Appellant's Submissions), pars 60 - 61.
At the hearing on 19 December 2023, the magistrate indicated that he considered that the Variation Application had not been served on Mr Mangan before the October Order expired on 13 December 2023. This led him to conclude that he lacked the power to extend the October Order because it had expired.
As I discuss in greater detail in the context of discussing Ground 1C below, in concluding that he lacked the power to extend the October Order because it had expired, the magistrate referred to s 45(6) of the Restraining Orders Act. The full text of s 45(6) is set out at [82] below. That section provides that an order does not expire before the application is determined 'if the person bound by the order has been served with a summons under section 47'.
On 19 December 2023, the magistrate had before him a certificate that provided that a summons in relation to the Variation Application had been posted to Mr Mangan at a Post Office box on 12 December 2023.
Ms De Campe relies upon s 58(1) of the Restraining Orders Act which provides:
58. Proof of service
(1) If a person certifies in writing that on the day and at the time and place stated in the certificate the person -
(a)personally served on a person the requisite copy or copies of a summons or restraining order in accordance with this Division;
(b)orally served on a person a restraining order in accordance with this Division and that the person so served appeared to understand what was said; or
(c)posted to a person the requisite copy or copies of a restraining order or summons in accordance with this Division; or
(d)effected substituted service in accordance with section 60,
in the absence of evidence to the contrary, the certificate is sufficient proof of service of the summons or restraining order on the person stated to have been so served.
While s 58 provides that in the absence of evidence to the contrary the certificate is sufficient to prove service of the summons, it does not identify the date upon which that service was effected. Ms De Campe's argument assumes that the effect of s 58 is that service would have been effected on the day that the summons was posted.
To identify the date upon which service was effected, it is necessary to have regard to s 75 of the Interpretation Act 1984 (WA) (Interpretation Act) which provides that:
75.Service of documents by post
(1)Where a written law authorises or requires a document to be served by post, whether the word 'serve' or any of the words 'give', 'deliver', or 'send' or any other similar word or expression is used, service shall be deemed to be effected by properly addressing and posting (by pre-paid post) the document as a letter to the last known address of the person to be served, and, unless the contrary is proved, to have been effected at the time when the letter would have been delivered in the ordinary course of post.
(emphasis added)
Thus, when s 45(6) and s 58 of the Restraining Orders Act are read together with s 75 of the Interpretation Act, the result is that service of the summons for the purpose of s 45(6) would be deemed to be effected when the summons would have been delivered in the ordinary course of post. This seems likely to be the 'deemed service' that the magistrate referred to.
Further, if Ms De Campe was correct and service were deemed to take effect on postage of the summons, then s 45(6) would have the effect of extending the restraining order as soon as the summons was posted and before it could possibly have arrived. Then, a person subject to a restraining order could be exposed to criminal liability for breaching the extended order before that person could possibly have known about the order's extension. It seems unlikely that this would have been what the legislature intended.
I do not consider that the magistrate erred in reaching the conclusion that he did. I dismiss Ground 1B.
Ground 1C
Ms De Campe's submissions on Ground 1C
Ground 1C is that the learned magistrate erred by proceeding on the basis that the date of service was significant for the purposes of considering whether the court had power to vary the order.
Ms De Campe submitted that the Magistrate erred in concluding that s 45(6) of the Restraining Orders Act meant that the court only had power to vary an order if the application was lodged and the relevant summons were served prior to the order expiring.
Ms De Campe accepted that in the context of a variation application, service is relevant for determining whether the hearing can proceed in the absence of the respondent. She contended however that where the respondent attends the hearing, the only relevance of s 45(6) is that if service has occurred prior to expiry, the order will continue in force pending the determination of the application.
Ms De Campe submitted that s 45(6) does not deal with a situation whereby an application to vary is lodged prior to expiry but the order then expires and service does not occur until after expiry. It was contended that in that situation, the inapplicability of s 45(6) means the order will not be deemed to continue in force pending the determination of the application but it does not follow that the court cannot otherwise vary the order.
Ms De Campe submitted that the fact it was lodged prior to expiry meant the Magistrates Court had jurisdiction to determine whether to vary the order. Any variation would take effect on the day it was made, and the order would not be deemed to have continued in force between the date of expiry and the date of variation.
Ms De Campe submitted that the Restraining Orders Act confers the power on a court to vary an order. It was said that there is nothing in the Restraining Orders Act which requires the order to still be in effect at the time the application is heard. It was contended that it was the making of the application that was the relevant event, not the service of the application.
Ms De Campe said that this is entirely consistent with the general principle applicable to many types of court applications, whereby a court will have jurisdiction to consider a matter so long as it is lodged or commenced on time, even if service does not occur until after the relevant deadline passes. In support of this 'general principle' Ms De Campe referred, by way of example, to s 12 of the Limitation Act 2005 (WA), s 21(2) of the Criminal Procedure Act 2004 (WA), s 10(3), s 17(3) and s 28(3) of the Criminal Appeals Act 2004 (WA), s 40(3) of the Magistrates Court Civil Proceedings Act, rule 51A and rule 51 of the District Court Rules 2005 (WA) and Order 7 rule 1, Order 56 rule 2(4) of the Rules of theSupreme Court 1971 (WA).
Ms De Campe said to hold otherwise in the context of the Restraining Orders Act would mean a person seeking an extension of their protection is constrained by the application being served before the order expires, in circumstances where the protected person has no control over the service process as it is managed by others. It was said that such an issue would become acute where the respondent is difficult to serve.
Disposition of Ground 1C
The magistrate appears to have concluded that he lacked the power to extend the October Order because a summons had been 'deemed' to be served on Mr Mangan after the October Order had lapsed on 13 December 2023. Although he did not explain his reasoning in detail, he appears to have concluded that the October Order could not be extended after it lapsed. It was evident from the observations that he did make that the magistrate attached significance to the effect of s 45(6) of the Restraining Orders Act.
Section s 45(6) of the Restraining Orders Act provides:
(6) If an application is made to vary -
(a)a restraining order that is a final order; or
(b)an MRO,
which includes an application to vary the order by extending the duration of the order, then, despite anything else in this Act, the order is not to expire before the application is determined if the person bound by the order has been served with a summons under section 47.
The text of s 45(6) seems to presuppose a restraining order is still in force at the time the application is made. The use of the word 'extend' reveals an assumption that the order is still in effect and an intention that it will continue in effect. It would be a misnomer to describe an order that had already expired as being 'extended'. If an order has already expired, a new order would need to be made.
In DDD v Magistrates' Court of Victoria,[20] Croucher J considered the use of language that presupposed the order remained in effect in similar legislation in Victoria revealed a legislative intention that an application to extend a restraining order could not be made after the order had expired.
[20] DDD v Magistrates' Court of Victoria [2023] VSC 89; (2023) 70 VR 1 [141].
It is relevant to note that the Restraining Orders Act does not prescribe a period of time within which an application to vary a restraining order may be made. Section 45 provides that:
45.Application
(1)An application to vary or cancel a restraining order may be made by -
(a)the person protected by the order; or
(b)a police officer on behalf of the person protected by the order; or
(ba)in the case of an application to a court exercising criminal jurisdiction, the person conducting the prosecution on behalf of the person protected by the order; or
(c)the person bound by the order.
(2)An application to vary or cancel a restraining order may also be made -
(a)if the person protected by the order is a child, by a parent or guardian of the child, or a child welfare officer, on behalf of the child; or
(b)if the person protected by the order is a person for whom a guardian has been appointed under the Guardianship and Administration Act 1990, by the guardian on behalf of the person; or
(c)in the case of an FVRO, by a person who is able to make an application for an order under section 24A(2).
(3)If the original application for a final order was made by a police officer on behalf of the public generally an application to vary or cancel the order may be made by a police officer on behalf of the public generally.
…
(3B)An application to vary or cancel a restraining order may be made to any court with jurisdiction to make such an order (including a court that is different to the court that made the order but not including a court that is an inferior court to the court that made the order).
(4)Except as provided in subsection (7), an application to vary or cancel a restraining order is to be made in the prescribed form.
(5)The prescribed form is to contain a brief summary of the effect of subsection (6).
…
(7)Except as provided in subsection (8), an application to vary or cancel a restraining order made to a court exercising criminal jurisdiction may be made as part of the criminal proceedings and without the need to comply with subsection (4).
(8)A court exercising criminal jurisdiction must not vary or cancel a restraining order as part of the criminal proceedings unless the person bound by the order is present and that person, and the person protected by the order, have had an opportunity to make submissions on the matter.
(9)Subsection (8) does not apply in the circumstances applying under section 63A.
I have considered whether the fact that s 45 (and the Restraining Orders Act more generally) does not explicitly provide that an application to vary a restraining order can only be made while a restraining order remains in force, reveals a statutory intention that an application to extend an order may be made after it expires. While I initially thought that this might provide some support for Ms De Campe's construction, I am ultimately not persuaded that it does.
This is because on Ms De Campe's construction there would not appear to be any temporal limitation on a person's ability to apply to vary a restraining order. It seems unlikely to me that the legislature would have intended that there be no temporal limitation on a person's ability to make an application, so that an application to vary could be made many years after the order had expired.
A construction of the Restraining Orders Act that limited the capacity of a party to make an application to vary the restraining order to the period of time during which the order was in force, seems more likely to reflect the statutory intention, as it would provide for a temporal limitation. Such a construction would not defeat the statutory purpose, as in an appropriate case, an application could be made for a new order.
I am not persuaded that having regard to the legislation which Ms De Campe says evinces a 'general principle' advances matters. The present task is to construe the Restraining Orders Act. I do not consider that having regard to other legislation assists that task.
To the extent that Ms De Campe is suggesting that the fact that the application is being served by others favours her construction, I do not accept this. It seems to me that the service of summonses has been adequately addressed in the Restraining Orders Act.
Section 54(1)(b) of the Restraining Orders Act requires a summons served by post to be served at least 14 days before the hearing date. As I have discussed above, where as here a summons is served by post, s 58 of the Restraining Orders Act and s 75 of the Interpretation Act mean that service of the summons would be deemed to be effected when the summons would have been delivered in the ordinary course of post.
Ground 1C will be dismissed.
Conclusion on Ground 1
The conclusion that I have reached regarding Grounds 1A to 1C is sufficient to dispose of the appeal. If the magistrate lacked the power to make the order sought, that was a sufficient reason to dismiss the Variation Application.
In case I am wrong however and in deference to the submissions made, I will still address Grounds 2A to 2C.
Ground 2A
Ms De Campe's submissions on Ground 2A
Ground 2A is that the learned magistrate failed to take into account that the application did not rely solely on the earlier assault.
Ms De Campe said that her application to vary the restraining order relied upon the fact that Mr Mangan had a pending criminal charge involving Ms De Campe and that he had been charged on three occasions for breaching the restraining order made.
Ms De Campe submitted that it was clear from the hearing on 19 December 2023 that the magistrate wrongly approached the application to vary the order on the basis that the grounds of the application were limited to the assault that was the subject of the criminal charge (and which, at the time of the hearing, Mr Mangan had been convicted).
Ms De Campe submitted that this could be seen in the fact that the magistrate referred to his earlier indication that the order 'wouldn't be extended in light of the nature of the contact, which was the allegation of the assault trial'. She also referred to the fact that the magistrate said: 'I obviously know nothing about - beyond the prosecution notices for the other matters' and referred to the 'relatively trivial nature' of the assault.
It was submitted that the magistrate did not expressly or impliedly acknowledge or consider that Mr Mangan had also been charged with three breaches of the VRO and that those charges had not yet been determined.
Ms De Campe submitted that the fact that those charges were pending trial was plainly relevant to the consideration of whether to vary the order by extending it. It was submitted that it is reasonable to expect that in an application to extend a restraining order, any alleged adverse conduct by Mr Mangan since the order was first made may well be some of the most pertinent information for the court to consider.
It was submitted that the magistrate erred by fundamentally misunderstanding the nature of Ms De Campe's application to vary the order and/or failing to take into account a relevant consideration.
Disposition of Ground 2A
I am not satisfied that the magistrate wrongly approached the Variation Application in the manner that Ms De Campe asserts.
As Ms De Campe has noted, the magistrate expressly referred to the prosecution notices in relation to the 'other matters'. This reveals he appreciated that there were other matters and that the Variation Application did not rest on the assault alone.
Further, as I discuss below in the context of Ground 2B, it also seems to me that the magistrate had regard to the prosecution notices in relation to those other matters.
Ground 2A will be dismissed.
Ground 2B
Ms De Campe's submissions on Ground 2B
Ground 2B is that the learned magistrate failed to take into account the considerations required by s 12 of the Restraining Orders Act.
Ms De Campe submitted that the magistrate focused on the 'relatively trivial nature' of Mr Mangan's assault on Ms De Campe of which he was convicted and the apparent hardship the order had caused Mr Mangan but had failed to consider the broad range of considerations that he was required to consider by the Act.
In particular, Ms De Campe contended that the magistrate failed to take into account the need to ensure that the person seeking to be protected is protected from personal violence (which was of primary importance) and the fact that Mr Mangan had been charged with three counts of breaching the order. Ms De Campe pointed to the fact that the magistrate said he 'knew nothing' about those charges beyond what was contained in the prosecution notices.
Ms De Campe submitted that by relying on the hardship that may be caused to Mr Mangan (which arguably was treated as having 'primary importance') and referring only to the nature of the original assault (and not the subsequent alleged breaches of the order), the magistrate at least failed to take into account the other mandatory relevant considerations, and conducted a more limited form of hearing than that which is required under s 12(1) and s 49B(2) of the Restraining Orders Act.
Ms De Campe also contended that the magistrate should have had regard to the original application made by Ms De Campe and noted that her original application was not limited to the assault but relied upon other matters.
Disposition of Ground 2B
Section 49B(2) of the Restraining Orders Act provides that when considering whether to vary or cancel a VRO, the court is to have regard to the matters referred to in s 12. Section 12(1) and s 12(2) of the Restraining Orders Act provide:
12.Matters to be considered by court generally
(1)When considering whether to make a VRO and the terms of the order a court is to have regard to the following -
(a)the need to ensure that the person seeking to be protected is protected from personal violence;
(b)the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them;
(c)the need to ensure the wellbeing of children by protecting them from personal violence, behaviour referred to in paragraph (b) or otherwise being exposed to personal violence;
(d)the accommodation needs of the respondent and the person seeking to be protected;
(da)the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not;
(e)hardship that may be caused to the respondent if the order is made;
[(f) deleted]
(g)other current legal proceedings involving the respondent or the person seeking to be protected;
(h)any criminal convictions of the respondent;
(i)any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise;
(j)other matters the court considers relevant.
(2) A court is to have regard to the matters set out in subsection (1)(a), (b) and (c) as being of primary importance.
The basis upon which the Variation Application was made was identified in the part of the application titled 'Grounds for variation or cancellation' as follows:[21]
The person bound by this VRO, Mr Mangan, has a pending criminal charge (28/2023) for conduct involving the person protected, Ms De Campe. Additionally, Mr Mangan has, on a number of occasions, come into contact with Ms De Campe since the initial VRO was made. These occasions are now the subject of three criminal charges for breach of the VRO (996/2023, 49/2023 and 18/2023) and are also to be heard on 24 January 2024.
[21] Magistrate's Court File, page 18.
Mr Mangan seemed to suggest from the bar table that the incident in the IGA (the other matter that Ms De Campe relied upon to obtain the interim order) was the subject of a criminal charge. On the material before me, it is unclear to me whether this was the case and if so, whether this was one of the criminal charges referred to in the Variation Application.
With regard to the first pending criminal charge, while it is correct that the magistrate did not expressly refer to the need to ensure that the person seeking to be protected is protected from personal violence, he did comment that the assault was trivial. It seems to me that in making this comment the magistrate intended to express the conclusion that the triviality of the assault meant that in his view the October Order did not need to be extended to protect Ms De Campe from personal violence. It seems to me that therefore that the magistrate did consider the need to protect Ms De Campe from personal violence.
With regard to the other matters relied upon in the Variation Application, the magistrate indicated that he knew nothing about those matters other than what was in the prosecution notices. To me this indicates that the magistrate knew what was in the prosecution notices.
The information before the magistrate seems to have been limited to what was in the prosecution notices. It is not apparent to me that there was any other material about these other matters put before the magistrate for him to consider.
The Variation Application identified the matters Ms De Campe relied upon to support an extension of the October Order as being the assault and the 'other matters' I have discussed. The Variation Application did not raise anything else in support of the application.
While the magistrate’s reasons could have been more detailed, I am not persuaded that Ms De Campe has established that the magistrate failed to address the matters that he was required to address on the material before him.
I will dismiss Ground 2B.
Ground 2C
Ms De Campe's submissions on Ground 2C
Ground 2C is that the appellant was denied procedural fairness.
Ms De Campe referred to the fact that in finding that the restraining order ought not to be extended, the magistrate relied on his observations and findings from the criminal trial. She noted that the magistrate characterised the assault as being of a 'relatively trivial nature'.
Ms De Campe submitted that the magistrate failed to afford her an opportunity to make submissions about the characterisation of the assault, or the effect of the assault on her. It was contended that such submissions would have been particularly important, given that one of the factors of primary importance is the need to ensure that the person seeking to be protected is protected from 'personal violence', which includes an assault on the person.
Ms De Campe contended that the magistrate's reasoning was opaque such that she was not able to engage with that reasoning.
Disposition of Ground 2C
The magistrate's reasons were short but it was plain that he attached significance to the fact that the assault was trivial. It seems to me that having presided over Mr Mangan's criminal trial, the magistrate was well placed to form a view about whether the assault was trivial or not.
It does not seem to me that Ms De Campe was denied the opportunity to make submissions about whether the assault was trivial. The magistrate disclosed his assessment of the seriousness of the assault. Counsel for Ms De Campe could have made submissions about the seriousness of the assault. Even if Ms De Campe had not participated in the criminal trial, she still would have been able to provide instructions about whether she disputed that the assault was trivial and, if so, why.
With regard to the other matters, the magistrate disclosed that he knew no more than what was in the prosecution notices. If there were matters relating to those charges that Ms De Campe sought to rely on, counsel for Ms De Campe had the opportunity to draw that material to the magistrate's attention.
While it may be that the magistrate did not give detailed reasons, his reasons were sufficient to disclose his reasoning and to afford Ms De Campe an opportunity to make submissions about that reasoning.
I am not satisfied that Ms De Campe was denied natural justice. I will dismiss Ground 2C.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GS
Associate
15 JULY 2024
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