Restraining orders - Misconduct restraining orders - No examination or finding of whether there was a risk of repetition of alleged conduct - Finding on issue against appellant on which he was prevented from adducing evidence in answer - Restraining orders set aside

Myles v Carroll [2003] WASCA 160

1 EM HEENAN J: After a hearing in the Fremantle Court of Petty Sessions on 9 March 2005 the learned Magistrate, Mr P Michelides SM, made orders granting two misconduct restraining orders against the present appellant, Mr Kevin George McWaters, in favour of the two respondents, Mrs Leanne Phyllis Shirley and her daughter, Chevon Olivia Shirley. Those misconduct restraining orders were made pursuant to s 34 of the Restraining Orders Act 1997.

2 Mr McWaters now appeals from the orders of the Magistrate granting those misconduct restraining orders pursuant to leave to appeal granted in this respect by McKechnie J in this Court on 23 May 2005. There are two grounds upon which leave to appeal from that decision was granted.

3 The first ground in substance is that the learned Magistrate erred in granting the misconduct restraining orders when he did not make a finding, or even consider the likelihood that the appellant may commit any future offensive act if not restrained. The second ground of appeal is that the learned Magistrate erred in making a finding that the appellant had ringbarked the respondent's tree in circumstances where, in the course of the evidence, the learned Magistrate had, in effect, suggested to the appellant that the allegation of ringbarking the tree was not a material matter for further consideration.

4 The background to this litigation is an unfortunate dispute between neighbours. Mr McWaters and his family live at Bolwarra Court, South Lake, and their rear fence adjoins a property occupied by Mrs Leanne Shirley, her daughter Chevon, and other members of her family. During December of 2004 and January 2005 there were at least two incidents of arguments over the back fence between Mr McWaters on the one hand and, at first, Chevon Shirley, but then involving Mrs Leanne Shirley, about conduct between the neighbours.

5 It is perhaps unnecessary and undesirable for me to go into the details of those arguments lest by doing so I reignite hostility which had flared up on those occasions. It is enough to say that they concerned alleged actions of Miss Chevon Shirley on the fence and the response of Mr McWaters in an angry way to what had occurred. Having heard the parties today, I have no doubt that everybody concerned is both disappointed and filled with regret that matters have come to such a pass, but the findings made by the learned Magistrate, not challenged on appeal, were that the actions of Mr McWaters on both occasions constituted intimidation of Miss Chevon Shirley and of her mother. As a consequence, Mrs Shirley obtained ex parte violence restraining orders against Mr McWaters at a hearing before a Justice of the Peace in the Fremantle Court of Petty Sessions.

6 After those orders were made a hearing was conducted to determine whether or not they should be made final and, at that hearing, evidence was taken from the parties. Mr McWaters was present, cross-examined the applicants, gave evidence on his own behalf and adduced evidence from his wife about the relationship which had arisen and the events in question.

7 At the hearing before the learned Magistrate in the Court of Petty Sessions the principal focus of the controversy were the events on the two days when there had been arguments over the back fence and threats made but, in addition, there were some further assertions raised by Mrs Shirley. They involved an allegation that Mr McWaters had in some way sprayed the vegetation on her side of the fence which had caused it to die, possibly as the result of poisoning, secondly, that he had ringbarked a tree on her side of the fence, and thirdly, that he had in all probability thrown some concrete rocks or pieces of broken concrete which had been found in her backyard.

8 Evidence was adduced by Mrs Shirley about the spraying, the concrete rocks found and the ringbarking. Mr McWaters when giving evidence absolutely denied any knowledge of, or involvement in throwing rocks or concrete or missiles of any sort into Mrs Shirley's property. He absolutely denied any spraying, by poison or otherwise, of vegetation on her side of the fence, and he was in the process of denying any involvement in the alleged ringbarking of the tree. As he was addressing the question of ringbarking he was stopped in the course of giving evidence by an observation from his Worship in the following terms:

"I appreciate that you probably, since she has made these allegations of ringbarking and clearly there's an inference that she suspects you - I can understand your wanting to cover them, admit or deny them as you see fit, but it is really not an area that I would have considered I would have regarded as important in terms of the issue."

9 Mr McWaters then went on to say, "The only thing, your Worship, with respect" - implying that he wished to continue to address the issue, at which point his Worship intervened again to deflect attention to a different subject, namely the issue of the pieces of concrete, so the issue of ringbarking was left on that basis and not further addressed.

10 Eventually in his ultimate reasons for decision the learned Magistrate made no finding of any kind about the allegation that concrete rocks or other similar items had been thrown by the appellant into Mrs Shirley's property or that Mr McWaters had sprayed or poisoned vegetation causing it to die, but he did make the finding that, on the probabilities, Mr McWaters had ringbarked the tree. That finding is to be found at page 38 of the transcript.

11 It seems to me in those circumstances that the finding of the ringbarking of the tree should not be permitted to stand because, in the circumstances, Mr McWaters was inadvertently deprived of an opportunity to make a full answer to that particular allegation.

12 If that was the only issue in the appeal it may possibly lead to a situation that the case should be remitted for further hearing before the Magistrate to make a determination about the allegation of the ringbarking after Mr McWaters has had an adequate opportunity to answer the allegation. But that seems to be a very small basis upon which to interfere in proceedings and all parties before me are satisfied that the situation does not warrant another investigation or hearing before the Magistrate.

13 It seems that whether because of the issue of the misconduct restraining orders or because of the crisis which has arisen through the issue and conduct of these proceedings, that peace has at last descended on the neighbourhood and that the parties have realised the importance of avoiding acrimony between neighbours. If I am correct in that conclusion, and I hope I am, that may be a very salutary result.

14 However, it is not possible for me to deal with the issues in this Court simply on the basis of what is prudent or desirable. I must have regard to the legal rights of the parties. Mr McWaters is entitled to object, as he has, that the learned Magistrate, in dealing with his case, has not expressly addressed the issue of whether or not it was established to his satisfaction that unless retained, Mr McWaters was likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the applicant and that would in fact intimidate or offend the applicant, or that he would cause damage to property owned by or in the possession of the applicant, or that he was likely to behave in a manner that is or is likely to lead to a breach of the peace, and that if any or all of those matters were established, it was appropriate in all the circumstances to grant a misconduct restraining order.

15 Those issues were simply not explicitly addressed at all although, in his defence, Mr McWaters had adopted the position that the only disruptive conduct which had occurred between himself and Mrs Shirley and her family at all were two episodes of shouting and threats over the back fence in December and January which were the focus of the proceedings and that there was absolutely no risk of that being repeated.

16 Mrs Shirley says that although the learned Magistrate did not expressly address the question of the risk of repetition of this conduct or the risk of antisocial behaviour continuing in the future, he must be taken to have done so because the matter had been expressly raised by Mr McWaters in his defence and the decision which the learned Magistrate made, by implication, must have rejected that contention. I can understand why Mrs Shirley would adopt that approach but proof of the risk of antisocial behaviour occurring unless a restraining order was granted is an essential component which must be proved and found before any such misconduct restraining order can possibly be justified. That emerges from the express wording of s 34 of the Restraining Orders Act itself and it was something which I had cause to address in an earlier case which is relied upon by Mr McWaters in his written submissions. There is a passage to that effect in the judgment which I gave in the case of Myles v Carroll [2003] WASCA 160 at [38] in July 2003 where I said:

"It is to be appreciated that before a restraining order can be granted the court must be satisfied, to the requisite degree on the balance of probabilities, that if it is not granted the respondent would act in a particular manner. Accordingly, the court is required to reach a standard of persuasion about the reliability of a future prognostication. It is to the probability of repetition of violent, offensive or intimidatory conduct occurring in the future that attention must be directed, not to an analysis of the significance or effect of some conduct, isolated or continuing, which has taken place in the past. What has occurred in the past is, unquestionably, relevant and material but only to the degree to which it justifies the formation of a conclusion about the likelihood of future occurrence of behaviour which the legislation prohibits. This is not so much an exercise in determining the proof of past events but of concluding what, if any, significance can be attached to them when considering the probability of future conduct occurring."

17 There is nothing particularly controversial or novel about my decision in that regard; it simply reflects the express requirements of the Restraining Orders Act. It has its analogy, if one is needed, in the law relating to injunctions, which is discussed in the well-known work by Dr I C F Spry, "The Principles of Equitable Remedies" 5th ed Law Book Information Services, (1997) at page 395 which deals with the requirement, when injunctions are being sought, to show that the grant of an injunction is necessary to restrain the performance of actions which may infringe legal rights.

18 I am, of course, perfectly aware that a restraining order can be made under s 34 of the Restraining Orders Act although the threatened conduct may not directly or immediately involve any breach or infringement of a legal right but nevertheless the philosophy in the legislation is that there must be a real threat of the conduct identified in s 34A being continued or repeated unless the restraining order is made.

19 Having regard to the fact that this was an unfortunate neighbourly dispute, that the parties, now that there has been a chance for mature reflection and appreciation of the significance of what has occurred, appear to have recognised the need for peaceful coexistence, it seems unlikely that there is or ever was any real risk of this conduct being repeated. Accordingly this simply emphasises the importance of that issue being addressed and considered by the learned Magistrate.

20 As it was not considered and as no finding was made, I am satisfied that the misconduct restraining orders should not have issued. In those circumstances, I will allow this appeal and set aside the two misconduct restraining orders. This decision is no encouragement to Mr McWaters or anyone else to think that the conduct complained of in December and January is tolerable but simply is a conclusion that the situation does not justify the grant of coercive orders. That will be the decision of this Court.