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
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
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…
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- AGLC
- De Campe v Mangan [2024] WADC 56
- Case
- [2024] WADC 56
- Decision Date
CaseChat Overview and Summary
The court examined the relevant legislation and case law to determine the appropriate course of action. It found that, while the court had the power to make orders for the protection of individuals, the statutory framework governing violence restraining orders did not explicitly allow for the variation of such orders after they had expired. The court also noted that the statutory provisions governing final violence restraining orders were intended to provide a conclusive remedy, and allowing variations after expiry could undermine the effectiveness of the order. Based on these considerations, the court held that an application to vary a final violence restraining order could not be made after the order had expired.
As a result of the court's decision, De Campe's application to vary the expired violence restraining order was dismissed. The court's ruling emphasised the importance of adhering to the statutory framework governing violence restraining orders and the need to respect the conclusive nature of final orders. The court's decision provides guidance to practitioners on the limitations of varying final violence restraining orders and the importance of timely applications to address any changes in circumstances.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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