MYLES -v- CARROLL [2003] WASCA 160
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 160 | |
| Case No: | SJA:1117/2002 | 1 MAY 2003 | |
| Coram: | EM HEENAN J | 25/07/03 | |
| 18 | Judgment 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
- 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
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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.
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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