De Campe v Mangan - [2024] WADC 56

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…

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 De Campe v Mangan

Details

AGLC: De Campe v Mangan [2024] WADC 56
Case: [2024] WADC 56
Decision Date: 16 JULY 2024

CaseChat Overview and Summary

The appeal in De Campe v Mangan involved a dispute over a final violence restraining order. The applicant, De Campe, sought to vary the order after it had expired, and the respondent, Mangan, opposed the application on the grounds that it could not be made after the order had expired. The case was heard in the Supreme Court of Victoria. The central legal issue was whether an application to vary a final violence restraining order could be made after the order had expired. The applicant argued that the court had the discretion to vary the order even if it had expired, while the respondent contended that the expiration of the order meant the application was no longer valid.

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