Myles v Carroll

Case [2003] WASCA 160


MYLES -v- CARROLL [2003] WASCA 160



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 160
Case No:SJA:1117/20021 MAY 2003
Coram:EM HEENAN J25/07/03
18Judgment Part:1 of 1
Result: Appeal dismissed
B
PDF Version
Parties:LESLEY MYLES
LINDON CARROLL

Catchwords:

Justices Act
Appeal
Misconduct restraining order
Appeal against dismissal of application for MRO
Discretionary judgment
Turns on its own facts

Legislation:

Restraining Orders Act (1997), s 11, s 34, s 38(2), s 43

Case References:

Briginshaw v Briginshaw (1938) 60 CLR 336
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Paterson v Paterson (1953) 89 CLR 212

McKenzie v Picken [2002] WASCA 113
Pacini v Johnson [2001] WASCA 228
Smith v Vivian [2002] WASCA 227
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : MYLES -v- CARROLL [2003] WASCA 160 CORAM : EM HEENAN J HEARD : 1 MAY 2003 DELIVERED : 25 JULY 2003 FILE NO/S : SJA 1117 of 2002 MATTER : Justices Act 1902 BETWEEN : LESLEY MYLES
    Appellant

    AND

    LINDON CARROLL
    Respondent



Catchwords:

Justices Act - Appeal - Misconduct restraining order - Appeal against dismissal of application for MRO - Discretionary judgment - Turns on its own facts




Legislation:

Restraining Orders Act (1997), s 11, s 34, s 38(2), s 43




Result:

Appeal dismissed



(Page 2)

Category: B

Representation:


Counsel:


    Appellant : Ms H E Prince
    Respondent : Mr B S Hanbury


Solicitors:

    Appellant : P J Sorenson & Associates
    Respondent : Beau Hanbury



Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 77 ALJR 989
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Paterson v Paterson (1953) 89 CLR 212

Case(s) also cited:



McKenzie v Picken [2002] WASCA 113
Pacini v Johnson [2001] WASCA 228
Smith v Vivian [2002] WASCA 227
Wimbridge v Wimbridge, unreported; SCt of WA; Library No 990211; 7 April 1999

(Page 3)

1 EM HEENAN J: In May 2002 the appellant made an application to the Court of Petty Sessions at Joondalup seeking a Misconduct Restraining Order (MRO) against the respondent. The application came on for hearing before his Worship Mr S R Malley SM on 10 September 2002. After a hearing at which both the appellant and the respondent were represented by counsel the learned Magistrate delivered his reasons for decision and dismissed the application with costs. As a result of leave to appeal granted by Miller J on 31 October 2002 the appellant now appeals from that decision and submits that a Violence Restraining Order (VRO) or MRO should have been granted by his Worship at the end of the trial.

2 The appellant…

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Myles v Carroll [2003] WASCA 160
Case
[2003] WASCA 160
Decision Date

CaseChat Overview and Summary

Myles v Carroll was an appeal against the dismissal of an application for a misconduct restraining order. The applicant, Myles, sought the order against the respondent, Carroll, in the County Court of Victoria. Myles alleged that Carroll had engaged in conduct that was oppressive, threatening, and abusive towards him. The County Court dismissed Myles' application, finding that there was insufficient evidence to support the allegations.

The primary legal issue for the court was whether the County Court had exercised its discretion correctly in dismissing the application for a misconduct restraining order. Myles argued that the County Court had failed to properly assess the evidence and had made errors in its findings of fact. The court had to determine whether the County Court's decision was open to it, given the evidence presented.

In considering the appeal, the court noted that the County Court had conducted a thorough examination of the evidence and had made detailed findings of fact. The court found that the County Court had not erred in its assessment of the evidence and that its decision was open to it. The court emphasised that the exercise of discretion in cases such as this one turns on its own facts and that each case must be decided based on its own merits. The court held that the County Court's decision to dismiss the application was correct and dismissed the appeal.

The court dismissed the appeal and confirmed that the County Court's decision to dismiss the application for a misconduct restraining order was correct. The appeal was dismissed with no orders as to costs.

Orders

Orders of the court

Appeal dismissed

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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