Adam v Her Majesty's Attorney-General for the State of Tasmania
[1990] TASSC 45
•5 September 1990
Serial No 41/1990
List "A"
COURT: COURT OF CRIMINAL APPEAL
CITATION: Adam v Her Majesty's Attorney-General for the State of Tasmania [1990] TASSC 45; A42/1990
PARTIES: ADAM, John
ADAM, Joanna
v
HER MAJESTY'S ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA
FILE NO/S: 200/1989
DELIVERED ON: 5 September 1990
JUDGMENT OF: Underwood J
Judgment Number: A42/1990
Number of paragraphs: 45
Serial No 42/1990
List "A"
File No 200/1990
JOHN ADAM AND JOANNA ADAM
v HER MAJESTY'S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
5 September 1990
The Cause of Action
The plaintiffs claim damages for tortious intimidation by a police officer. The substance of the claim is that a police officer coerced the plaintiffs into giving up possession of certain premises in the lawful occupation of the first–named plaintiff by threatening to arrest him if he remained on the premises. The plaintiffs' case is that, in the circumstances, execution of the threat would have been an unlawful act. The action is brought against the Attorney–General by reason of the provisions of the Police Regulation Act 1898, s52, which provides:
"52–(1) A police officer shall not incur any civil liability for an act or omission done or made in good faith in the exercise or discharge, or purported exercise or discharge, of any powers, functions, duties, or responsibilities conferred or imposed upon him by any provision of this or any other act (whenever enacted) or by law.
(2) A liability that would, but for subs(1), lie against a police officer shall lie against the Crown."
The Background
The plaintiffs were the owners of a restaurant, take–away food shop and tourist accommodation business at Bicheno known as "JJ's". In 1987 the plaintiffs decided to lease it to Stewart Bick. A lease, dated 19 August 1987, was duly executed. The demised premises comprised the restaurant, take–away food shop, chalet accommodation and the chattels listed in the schedule. A living area above the shop and restaurant was not included. The demised term was for five years commencing on 1 September 1987. The monthly rental was $1,863.33. In April 1988 the plaintiffs agreed with Mr Bick that he could also lease the upstairs living quarters for six months. The agreed rental was $346.66 per month. No written lease was executed.
By 1 May 1988 Mr Bick was in arrears with the payments of rent for the upstairs area. After 1 July 1988 he was in arrears with the payments of rent for the whole of the premises. It was not disputed that he remained in arrears, paid no rental at all after 1 July 1988 and that, at 31 December 1988, the total sum payable under the terms of the lease and the oral tenancy agreement amounted to $9,938.57.
In about July and August 1988 there were some disputes between Mr Bick and the plaintiffs. It is not necessary to set out the detail of these disputes. Mr Bick claimed that the plaintiffs were in breach of certain covenants in the lease and the plaintiffs claimed that, in addition to not paying the rent when it fell due, Mr Bick was managing the business badly and that the trade and goodwill was dwindling. Meantime, the plaintiffs fell into arrears with their payments under a mortgage over the premises. Exercising a power of sale, the mortgagees advertised the premises for sale. The plaintiffs consulted their solicitor. As a result of advice given, they decided to retake possession of the premises and try to build up the goodwill so that a reasonable sale price could be achieved. They relied upon the terms of the lease which provided:
"That if the rent hereby reserved or any part thereof shall be in arrear and unpaid for the space of fourteen (14) days after any of the days whereon the same ought to have been paid (whether any legal or formal demand therefor shall have been made or not) or ..... and at any time thereafter the Lessors may re–enter upon the premises or any part thereof in the name of the whole and thereupon this demise shall immediately cease and determine but without prejudice to the right of action of the Lessors in respect of any antecedent breach by the Lessee of his obligations hereunder."
"The Lessee covenants with the Lessor .... at the expiration or sooner determination of the term hereby granted to yield up possession of the demised premises to the Lessors in good and tenantable repair order and condition in accordance with the covenants hereinbefore contained ...".
By 10 August 1988 the rent payable under the lease was in arrears and had been unpaid for longer than 14 days. The plaintiff engaged the services of Henry Robertson, a licensed mercantile agent. On 11 August 1988 Mr Robertson and the first–named plaintiff set off for Bicheno. Mr Robertson had some experience in regaining possession of premises. He took with him various tools including an electric drill. The intention was to drill out the locks on the doors at "JJ's" and take over possession of the premises. Mr Robertson also took with him a letter from the plaintiffs' solicitors addressed to the officer in charge of the police station at Bicheno. This letter advised that Mr Robertson was the duly appointed agent of the plaintiffs and that the plaintiffs intended to re–enter the premises. The letter also enclosed a copy of the lease. It concluded as follows:
"We are writing this to you as the tenants through their solicitors have indicated that they will resist our clients' re–entry and as a consequence our clients and their agents will be required to use force.
Our clients will be changing all the locks on the premises and we require you to be appraised of the situation and to help our clients, if necessary, so as to prevent a breach of the peace by Mr Bick."
The pair arrived at Bicheno shortly before lunchtime on 11 August and went straight to the police station where they spoke to the officer in charge, Senior Constable Mikulski. Their arrival was not unexpected. Mr Bick had rung Senior Constable Mikulski several times that morning to say that he knew that Mr Adam and his agent were coming that day to take possession of the premises and that he was going to resist them. Further, the plaintiffs' solicitor had also rung Mr Mikulski to say that his clients and their agent were arriving in Bicheno and intended to use force to retake possession of their premises. In addition, that morning, Senior Constable Mikulski had received a letter from Mr Bick's solicitor advising him that Mr Robertson and Mr Adam proposed to travel to Bicheno on 11 August to take possession of the premises and that Mr Bick denied that he was in breach of any terms of the lease. The letter concluded:
"In the event that the landlord or any person purportedly authorised by the landlord seeks to take possession of the property, unless done so with the consent of Mr Bick, our client seeks to rely on his rights of occupation and possession of the property under his lease and any dispute as to the landlord's right to re–enter the property is a matter for the court.
In our view under no circumstances may the landlord or any person with his authority enter the property either by force or otherwise without the consent of our client or court order."
Bicheno is a small town and both Mr Bick and Mr Adam were well known to Senior Constable Mikulski. Mr Bick had previously told the senior constable that he would resist any attempt by Mr Adam to retake possession of the premises. Mr Mikulski said that he feared that an attempt by Messrs Robertson and Adam to retake possession of the premises would result in a breach of the peace. In the circumstances, his fears were justified. He said that he felt obliged to stop any breach of the peace. He summoned Sergeant Spaulding from the Swansea police station in case he needed assistance.
The First Visit to the Premises
There was a dispute between the evidence of Mr Adam and Mr Robertson on the one hand and the two police officers on the other with respect to the events which occurred after Messrs Adam and Robertson arrived at Bicheno on 11 August 1988. I am satisfied that all the witnesses gave the best account they could bearing in mind that, by the date of trial, the events were two years old. The conflict in the evidence as to what occurred on 11 August 1988 is confined to matters of detail. The accounts of all witnesses coincide on all matters of substance. I make the following findings in accordance with the substance of the evidence and the probabilities of what occurred taking into account the relationship between Mr Adam and Mr Bick, the circumstances which gave rise to the relevant events and bearing in mind that the plaintiffs carry the onus of proof.
Before Mr Robertson and Mr Adam arrived at the Bicheno police station Senior Constable Mikulski telephoned the police legal officer in Hobart and received advice that his duty was to prevent the occurrence of a breach of the peace. On arrival, Mr Robertson gave Senior Constable Mikulski the plaintiffs' solicitor's letter and said that it was their intention to drill out the locks if necessary in order to gain entry to the premises. Mr Robertson claimed to be entitled to do this. Senior Constable Mikulski disputed the correctness of this claim or, at all events, that Mr Robertson was entitled to use force in circumstances that were likely to cause a breach of the peace. Over the next hour or so there followed a flurry of telephone calls. One cannot escape feeling a little sympathy for Senior Constable Mikulski. He said that both Mr Bick and Mr Adam were known to him as reasonable and law abiding people but, armed with conflicting legal advice, they seemed to him to be headed for some kind of physical confrontation which he had been told it was his duty to prevent. The senior constable telephoned senior Crown counsel, Mr Lovett. Mr Lovett considered the matter for about an hour and telephoned back. His advice to the police officer was that the process server was not entitled to break the door down nor to cause a breach of the peace. He further advised that if the tenant told Mr Adam or Mr Robertson to leave the premises and they refused they would be trespassers. He confirmed that it was the general duty of a police officer to maintain the peace. Senior Constable Mikulski conveyed this advice to Messrs Robertson and Adam. He referred to the provisions of the Criminal Code, s27(6) and his duty to prevent a breach of the peace. Mr Robertson telephoned the plaintiffs' solicitor. His advice was that Messrs Adam and Robertson were entitled to use force to enter the premises. Senior Constable Mikulski telephoned the inspector in charge of the district. At the end of all this Senior Constable Mikulski made it clear that he believed that the use of force by Messrs Robertson and Adam would result in a breach of the peace and if that happened they would be arrested. Sergeant Spaulding took an even firmer line and advised Messrs Robertson and Adam not to even go near the premises.
In the end, Messrs Robertson and Adam said that they would go to the restaurant and talk to Mr Bick. Whether or not they agreed not to use force to gain re–entry as claimed by them, is not entirely clear. However, it is clear that they knew that if they used force to enter the premises and Mr Bick resisted they would be arrested. Messrs Robertson and Adam got into their car and drove the short distance to the restaurant. The police officers followed in their car. Mr Bick saw them coming and locked all the doors. Messrs Robertson and Adam parked on the forecourt and spoke to Mr Bick who stood across from them on a balcony or patio. The police sat in their car and watched. Mr Robertson tried to persuade Mr Bick to give up possession. Mr Bick made it clear that he would not be so persuaded. It was a civilised and peaceful exchange. It ended when Mr Robertson gave up his attempt to talk Mr Bick into surrendering possession and he and Mr Adam left the car park and returned to Hobart. The police also left the scene and the incident ended.
The plaintiffs did not effect re–entry or gain possession of the premises. I find that the first–named plaintiff by his agent intended to use force by drilling out the locks to effect entry to the premises but abandoned that intention because of the threat of arrest made by Senior Constable Mikulski. I also find that at the time this threat was made the police officer believed on reasonable grounds that by the use of force Messrs Adam and Robertson would commit a breach of the peace.
The Second Visit to the Premises
After Mr Adam returned to Hobart he again consulted his solicitor. The plaintiffs issued a writ out of this Court claiming possession of the premises. The plaintiffs asked a friend of theirs, Franz Muhlbacher, to serve the writ as he would not be recognized by Mr Bick. Mr Adam and Mr Muhlbacher decided that they would return to Bicheno and go to the restaurant. The plan was that Mr Muhlbacher would go in first and serve the writ on Mr Bick. Their legal advice was that this would terminate the lease. As soon as that was done Mr Adam would enter the premises and remain there until Mr Bick left. They decided that this time, they would not go to the police station first.
On the afternoon of 19 August 1988 Messrs Adam and Muhlbacher set off from Hobart. They took with them their night clothes as they believed that they might be staying at least overnight, if not longer, until Mr Bick gave up possession and left. Mr Bick gave evidence of the events of 19 August 1988 but I can place little reliance on his account. It was vague and inconclusive. He frequently said that he could not remember when propositions were put to him in cross–examination and by his own admission he was not "100% sure" of the events having regard to the passage of time. There was a fundamental difference between the evidence of Senior Constable Mikulski and that of Messrs Adam and Muhlbacher which needs some attention.
According to Messrs Adam and Muhlbacher the following occurred. On arrival outside the restaurant Mr Muhlbacher went inside the take–away food shop while Mr Adam watched from outside. The shop was open for business. Mr Bick approached Mr Muhlbacher and the latter effected personal service of the writ and a statement of claim. Mr Bick then asked an employee to lock the premises but meantime, Mr Adam entered through the shop door and told Mr Bick that they were there to take over the premises. Mr Bick said words to the effect that Mr Adam was not going to do that. Mr Adam went to go behind the counter but was stopped by Mr Bick. Messrs Adam and Muhlbacher remained in the shop while Mr Bick went to the adjoining restaurant area and rang Senior Constable Mikulski. He complained that Mr Adam and another man would not leave his premises. Senior Constable Mikulski arrived within a few minutes and walked in through the open shop door. I find that Mr Bick handed the writ to Senior Constable Mikulski who read it. Senior Constable Mikulski denied that he saw the writ but that denial is inconsistent with an entry he made later that night in the Crime and Occurrence book kept at the police station. That entry states that at about 7 pm. on 19 August 1988 Stewart Bick telephoned police with a complaint that John Adams [sic] and another male person were on his premises. "They have just served a legal document and refuse to leave". The entry goes on to record that Senior Constable Mikulski attended immediately and concludes:
"Supreme Court writ had been served on Stewart Bick. John Adams [sic] spoken to when requested by Bick to leave. Left of own accord. Inspector Flemming notified 8pm."
According to Mr Mikulski, on his arrival he acknowledged the presence of Mr Adam and Mr Bick. Mr Bick then asked Messrs Adam and Muhlbacher to leave the premises and they immediately did so without demur. Senior Constable Mikulski said that he spoke briefly to Mr Bick and then went outside and spoke to the other two who were waiting there. He said that they told him that they had served the writ and would be returning to Hobart. He said that he was in the shop not more than about 30 seconds or a minute. He expressly denied that he asked Mr Adam or Mr Muhlbacher to leave and that he mentioned any question of arrest. He said that he did not telephone his inspector whilst at the shop although he did so later that evening to keep him informed of the events. He said that there appeared to him to be no hostility between the parties.
That account is quite different from the one given by Messrs Muhlbacher and Adam. They said that on his arrival, Senior Constable Mikulski read the writ and then, with the permission of Mr Bick used his telephone to speak to someone. On his return he asked Mr Bick in the presence of the other two if he wished them to leave. Mr Bick confirmed that this was the case. Senior Constable Mikulski then turned to Messrs Adam and Muhlbacher and asked them to leave. Mr Adam said that he was not going to. Senior Constable Mikulski said words to the effect, "I am very sorry Mr Adam, you have to leave the premises". Mr Adam claimed that he was entitled to stay. Senior Constable Mikulski told Mr Adam that he had got orders that if he did not leave the premises he would have to be arrested. Mr Adam protested that that was not fair as he had a right to be in the premises. This exchange continued for a short time. Mr Mikulski made it clear that if Mr Adam and Mr Muhlbacher did not leave they would be arrested and consequently the two of them walked out of the shop and ultimately returned to Hobart. That evidence is not in conflict with the note in the Crime and Occurrence book for the parties did leave of their own accord in the sense that they did not have to be arrested or physically ejected from the premises. Without imputing any adverse view of the honesty of Senior Constable Mikulski I accept the account given by Messrs Adam and Muhlbacher principally because it is a likely or probable account of what occurred. I take into account the following:
(i)it was not disputed that Mr Adam's legal advice was to the effect that he was entitled to take and remain in possession of the premises.
(ii)because of the arrears of rental and the intention of the mortgagee to force a sale of the premises, the plaintiffs were anxious to take over possession at the earliest possible moment in order to build up trade and thereby increase the value of the business.
(iii)It was not disputed that before Senior Constable Mikulski arrived, Mr Bick had asked Messrs Adam and Muhlbacher to leave but they had refused to do so. There is a note to this effect in the Crime and Occurrence book. It is highly improbable that, on being asked to leave a second time, they would have done so without making any claim to the right they believed they had to remain on the premises.
(iv)Messrs Adam and Muhlbacher took their night attire to Bicheno and it was not disputed that they went to the premises with the intention of staying there overnight or longer if necessary until Mr Bick left. It is unlikely that they would have abandoned this intention simply because Mr Bick asked them to leave.
(v)If service of the writ was the sole object of the trip to Bicheno there was no need to remain after that had been effected.
(vi)The evidence of Messrs Adam and Muhlbacher with respect to the events on 19 August 1988 is consistent with the undisputed evidence of Mr Adam's expressed intention to gain possession of the premises on his visit there the preceding week.
In addition to the foregoing, I was singularly impressed by the evidence given by Mr Muhlbacher and in particular by the following passage in his cross–examination:
"I was pretty nervous at the time. After the policeman came I cannot recall if Bick then asked us to leave. I am quite sure that the police officer asked us to leave the premises. He definitely said, 'if you don't leave the premises I have no choice but to arrest you'. I have never been arrested in my life. It quite frightened me at the time."
Accordingly, I find that, on the evening of 19 August 1988 Mr Adam and Mr Muhlbacher would not have left the demised premises had Senior Constable Mikulski not threatened to arrest them if they continued to remain there.
The Events Subsequent to 19 August 1988
In the proceedings commenced by the writ served on Mr Bick the plaintiffs made an application for summary judgment for possession of the premises. The application was heard on 5 December 1988 and determined by a judgment on 16 December (unreported 6788). The orders of the court were a declaration that the plaintiffs effected re–entry of the demised premises and that the plaintiffs recover possession of those premises. On 23 December 1988 Mr Bick vacated the premises and the plaintiffs' retook possession. The premises were in a considerable state of disrepair. The plaintiffs applied themselves to the task of cleaning the premises up. They re–opened the business on 28 December 1988.
The plaintiffs claim damages for the tort of intimidation. As pleaded, it was claimed that the tort was committed on both 11 and 19 August but, in final addresses, counsel for the plaintiff made no submissions to support the claim with respect to 11 August. With respect to 19 August it was submitted that Senior Constable Mikulski threatened to use unlawful means namely, to arrest Mr Adam and Mr Muhlbacher if they failed to leave the premises and, by reason of that threat alone they were forced into giving up their lawful possession of the premises and thereby suffered loss and damage.
The Lawfulness of the First–Named Plaintiff's Possession on 19 August 1988
On the application for summary judgment against Mr Bick, referred to above, I held that service of the writ for possession by Mr Muhlbacher on 19 August 1988 terminated the lease of the demised premises. The following passage appears at p6 of my reasons for judgment:
"Re–Entry may be effected by actual entry on to the demised premises or by service of a writ of summons which contains an unequivocal demand for possession. See Grimwood v Moss (1872) LR 7 CP 360; Re Morrish, ex parte Sir W Hart Dyke (1883) 22 Ch D 410; Calabar Properties v Seagull Autos Ltd [1969] 1 Ch D 451; Moore v Ullcoats Mining Co Ltd [1908] 1 Ch 575."
The writ and the statement of claim served on Mr Bick constituted "an unqualified election on the part of the plaintiffs to determine the lease", per Younger J in Wheeler v Keeble(1914) Ltd [1920] 1 Ch 57 at p62. Upon termination of the lease the plaintiffs were entitled to possession of the demised premises. The first–named plaintiff re–entered those premises by walking through the shop door immediately after the writ and the statement of claim had been served. In Butcher v Poole Corporation [1943] 1 KB 48 Lord Greene MR referred to re–entry after the termination of a lease and said at p54:
"Another example is that of a landlord who re–enters on the termination of a lease. He is merely exercising his own proprietary right and is not doing something which defeats or determines the interest of the lessee as is the case where a right of re–entry for breach of covenant is exercised." [Mr Bick's interest in the leasehold property had been terminated by the earlier service of the writ and statement of claim.]
In Hemmings & Wife v Stoke Poges Golf Club Ltd & Anor [1920] 1 KB 720 it was held that a landlord is entitled to use no more force than is reasonably necessary to evict a tenant whose tenancy has been terminated. However, it must be noted that this case is a civil action for damages. Whether or not such action constituted a breach of the criminal law was not in issue. The Criminal Code, s79(1) makes it a crime for anyone, without lawful authority, to enter in a violent manner, any lands in the peaceable possession of another for the purpose of taking possession whether or not he has a right of entry thereto and, subs(2) makes it an offence for any person who has wrongfully entered lands to detain them with force. Doubt has been cast upon the correctness of the proposition that a landlord may use reasonable force to evict a tenant whose original lawful possession has been terminated as to do so would amount to a breach of the criminal law. See McPhail v Persons, Names Unknown [1973] 1 Ch 447 at p459. However, this question does not arise in this case for the first–named plaintiff used no force to gain or retain possession.
In Housing Commission of New South Wales v Allen [1967] 69 SR (NSW) 190 this point was not adverted but the following passage appears in the judgment of Sugerman JA. at p193:
"The law is accurately stated in Foa's General Law of Landlord and Tenant, 8th edn pp718–719: 'for as soon as a person entitled enters in the assertion of possession, the law immediately vests the actual possession in him and so far as relates to the fact of possession and its legal consequences, it makes no difference whether it has been taken forcibly or not'. This accords with what was said by Maule J in Jones v Chapman (1849) 2 Ex. 803 at p821, cited by Lord Selborne in Lows v Telford (1876) 1 App Cas 414 at p426 to which the learned text writer refers and with the case of Harvey v Brydges (1845) 14 M & W 437 also cited by Lord Selborne. In Hemmings v Stoke Poges Golf Club, Bankes LJ referring to the view of the law expressed by Coltman J in his minority decision in Newton v Harland (1840) 1 Man & G. 644 said 'I think that the view he takes is entirely confirmed by Lord Selborne's comment on Harvey v Brydges in Lows v Telford where he expresses his concurrence with the view of the law that, so far as relates to the fact of possession and its legal consequences, it makes no difference whether it has been taken by the legal owner forcibly or not'."
See also Aglionby v Cohen [1955] 1 All ER 785; Jones v Foley [1891] 1 QB 730.
On behalf of the defendant it was submitted that even if Mr Bick's lease of the premises had been terminated by the service of the writ and statement of claim, the plaintiffs were not entitled to take possession of the premises for, by the commencement of proceedings, they had elected to obtain possession by curial proceedings and physical action to take possession was no longer open to them. Argyle Art Centre Pty Ltd & Anor v Argyle Bond and Free Stores CoPty Ltd [1976] 1 NSWLR 377 was relied upon as authority for this submission. The case is not in point. In the Argyle Art Centre case, the landlord elected to submit his right to re–enter for curial determination by instituting proceedings under the Landlord and Tenant Act 1899, s23. Before those proceedings had been determined the landlord resorted to self help by physical re–entry. On the facts, Needham J held that the proceedings under the Act would have been unsuccessful. He held that having elected to submit the issue of the right to re–enter to curial determination, the landlord could not thereafter obtain by self help a remedy that was not available to it by that curial determination. The landlord had issued a notice to quit. After its expiry the landlord accepted rent and Needham J held that a new tenancy was thereby created. The proceedings under the Landlord and Tenant Act were instituted after the expiry of the notice to quit and after the acceptance of rent. The hearing of those proceedings was commenced and adjourned. Before the hearing resumed, the landlord issued a second notice to quit and on its expiry resorted to self help. That second notice was accompanied by a letter which claimed to reserve the landlord's rights "in relation to proceedings presently being heard by Mr Briese SM, and in relation to the notice to quit served on 27 October 1975". This letter also claimed that the notice to quit was not to be taken as waiver of the first notice to quit.
Needham J acknowledged the existence of the common law right of self help after the determination of the tenancy by the service of the second notice to quit. He said at p381:
"However, the creation of such a new tenancy would be of importance to the parties, because it would debar the magistrate from making any order under the existing summons, and also it would have the practical effect that it would take some time for the defendant to obtain an order from a court of Petty Sessions based upon the determination of the tenancy so created by the expiration of the second notice to quit. However, the defendant is not confined to its curial remedies (subject to the consideration of the argument of the plaintiffs based on election in this case), and, if the Petty Sessions proceedings were withdrawn or dismissed, the defendant would be entitled, so it seems to me, to proceed to eject the plaintiffs from the premises, because of the determination of the tenancy effected by the second notice to quit."
At p385 his Honour said that in view of the creation of a new tenancy the proceedings in the Court of Petty Sessions could not result in the issue of a warrant for possession. After reviewing in some detail Jones v Foley, Hemmings v Stoke Poges Golf Club Ltd and Housing Commission of New South Wales v Allen (all referred to above) his Honour said at p386:
"It might then be argued that, that tenancy having been determined by the expiration of the second notice to quit on 6 March, 1976, the defendant was entitled at common law to re–enter because of that determination, and that the re–entry should be deemed to have taken place under that right. However, I think that, where a landlord has issued two notices to quit and has taken curial proceedings under the first notice and has continued those proceedings after the issue and expiration of the second notice to quit, a case of election arises, and he cannot, at least before the termination of the curial proceedings, take action under the second notice to quit, as if the first and the curial proceedings had never existed."
In the present case, the proceedings instituted by the writ and statement of claim have been determined by a judgment in favour of the plaintiffs. It has been judicially determined that by the service of the writ and statement of claim, the plaintiffs became entitled to possession of the demised premises.
I find that, on 19 August 1988, the first–named plaintiff was in lawful occupation of the premises and that he was entitled to remain in such occupation. I also find that he intended to remain but left solely because Senior Constable Mikulski threatened to arrest him if he did not do so.
The Lawfulness of the Threatened Arrest
Senior Constable Mikulski's power to make a lawful arrest did not depend upon the niceties of the law concerning the rights of the first–named plaintiff to occupy the demised premises. The Police Offences Act 1935, s55(2B) and (2C) provide:
"(2B) Subject to subsection (2C), a police officer may arrest, without warrant, any person whom he believes on reasonable grounds to be on the land of another person without the consent of its owner or occupier or the person in charge of it.
(2C) The power of arrest conferred by subsection (2B) is not exercisable –
(a) unless the police officer has previously requested the person in relation to whom he seeks to exercise the power to leave the land concerned and that person has refused or failed to comply with the request; or
(b) if the police officer has reasonable grounds for believing that that person has some reasonable or lawful excuse for being on that land."
On the facts as I have found them Senior Constable Mikulski acted as is provided by subs(2C)(a) above and therefore, a failure by Messrs Adam and Muhlbacher to comply with his request to leave would have entitled him to lawfully arrest them if he believed on reasonable grounds that they were on the land of another person without the consent of its owner or occupier or person in charge of it. The difficulty is that Senior Constable Mikulski denied making any threat to arrest and consequently, did not assert that he held any such belief whether based on reasonable grounds or not. It may be that Senior Constable Mikulski did hold such a belief but on this issue I conclude that the defendant carries the onus of proof and there is neither direct evidence nor circumstantial evidence from which an inference could be drawn that the senior constable held the requisite belief which would have made execution of the threatened arrest lawful.
The Criminal Code, s27(6) provides:
"It is lawful for any person to arrest without warrant any person whom he sees committing a breach of the peace or whom he believes on reasonable grounds to be about to commit or renew a breach of the peace."
Again, there is neither direct nor circumstantial evidence to justify a finding that, on the balance of probabilities, at the time of threatening arrest, Senior Constable Mikulski believed on reasonable grounds that either Mr Adam or Mr Muhlbacher were about to commit or renew a breach of the peace.
Accordingly, I find that the threat to arrest Messrs Adam and Muhlbacher if they did not leave the premises to be a threat to do an unlawful act.
The Tort of Intimidation
Since the decision of Rookes v Barnard& Ors [1964] AC 1129, the tort of intimidation has been recognised as a part of the common law. Commonly, it involves three parties. The cause of action is made out if the defendant threatens to do an unlawful act to another as a result of which that other does or refrains from doing some act which he or she is lawfully entitled to do thereby causing damage to him or herself. In Morgan v Fry & Ors [1968] 2 QB 710 Lord Denning described the essential ingredients at p724 as follows:
"There must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation."
In common with other economic torts, the plaintiff must establish that the defendant's unlawful act or threat to do an unlawful act, was aimed at the plaintiff in the sense that it was done with the intention of causing injury to the plaintiff. In Rookes v Barnard (supra) Lord Devlin said at p1208:
"It must be proved that A's object is to injure C through the instrumentality of B. (That is why in the case of an 'innocent' breach of contract which was remarked upon by Sellers LJ, that is, one into which A was forced by circumstances beyond his control, there could never be the basis of an actionable threat.)"
Lord Evershed said at pp1182, 1183:
"My Lords, it seems to me that in the year 1963 it is not sensible or possible to deny such a wrong, at any rate where the illegal acts threatened are criminal or tortious in character and where the threats are sufficiently substantial and coercive to cause real damage to the person against whom they are aimed and directed; and the person entitled to recover may be either the party intimidated or may be a third party where the intention and effect of the threat is to injure such third party." [My emphasis.]
In Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 Jacobs JA confirmed the existence of the tort of intimidation in Australia and said at p766:
"Whether the cause of action be described as the separate tort of intimidation or not, there is strong authority for the proposition that if A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his legal right with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C."
The tort can be committed in what has been described as a "two party" situation (Clarke and Lindsell on Torts (15th edn) 5.17; Central Canada Potash Co Ltd v Attorney–General for Saskatchewan (1976) 57 DLR (3rd edn) 7 at p116 et seq). In Rookes v Barnard (supra) Lord Devlin at p1205 adopted the following passage from Salmond on Torts (13th edn) at p697:
"Although there seems to be no authority on the point it cannot be doubted that it is an actionable wrong intentionally to compel a person, by means of a threat of an illegal act, to do some act whereby loss accrues to him: for example, an action will doubtless lie at the suit of a trader who has been compelled to discontinue his business by means of threats of personal violence made against him by the defendant with that intention ...". [My emphasis.]
See also Pete's Towing Service Ltd v Northern Industrial Union of Workers [1970] NZLR 32; Huljich v Hall [1973] 2 NZLR 279; Street on Torts (8th edn) pp147–150.
For the plaintiffs, it was submitted that in a "two party" situation it was not necessary for the plaintiff to establish that the defendant intended to injure the plaintiff by his threat to do an unlawful act. Reliance was placed on Beaudesert Shire Council v Smith& Ors (1966) 120 CLR 145. In that case, the appellant council unlawfully removed gravel from the bed of a river from which the respondent had a statutory right to take water to irrigate his land. The action of the council had the effect of draining a natural pond in the river from which the respondent pumped his water. He was thereby injured. The council acted in ignorance of the effect of its unlawful action on the respondent. It did not intend to injure the respondent. The High Court founded its judgment on an action on the case for trespass and held at pp155, 156:
"There is, therefore, a solid body of authority which protects one person's lawful activities from the deliberate, unlawful and positive acts of another. It is not, however, possible to adopt a principle wide enough to afford protection in all circumstances of loss to one person flowing from a breach of the law by another, for regard must be had to the limitations which the law has placed upon the right of a person injured by reason of another's breach of statutory duty to recover damages for his injury. Bearing this in mind, it appears that the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other."
The judgment of the Court does not refer to Rookes v Barnard. The "solid body of authority" referred to comprised a series of old cases almost all of which referred to the necessity of establishing the existence of an intention to injure the plaintiff by the threat of or commission of an unlawful act. For a survey of these cases see "The Beaudesert Decision – Raising the Ghost of the Action upon the Case" (1967) 40 ALJR 296 and 347.
The Beaudesert case was referred to in Kitano v The Commonwealth (1973) 129 CLR 151 and distinguished on the facts by Mason J at p175:
"As I see the case [Kitano's case] he has not succeeded in showing that the act was tortious (and not merely a contravention of the statute), that its inevitable consequence was to cause damage to the plaintiff, or that there was an intention to cause harm to the plaintiff."
The decision was later considered in Elston & Ors v Dore (1982) 149 CLR 480 where it was described in the judgment of the Court at p491 as "the much criticised principle of Beaudesert Shire Council v Smith". That it is of dubious authority appears from the following passage in the judgment at p492:
"It is therefore unnecessary to consider whether Beaudesert Shire Council v Smith should be followed. When that question does arise for decision, it will be desirable that a court of seven justices should consider it."
The decision was referred to by Lord Diplock in Lonrho Ltd & Anor v Shell Petroleum Co Ltd & Anor (No 2) [1982] AC 173. His Lordship referred to the case as recognising "the existence of a novel innominate tort", observed that it had not since been followed in Australia and declared that the proposition of law it espoused formed no part of the law of England (pp187, 188). Doubt as to the survival of the cause of action of this "innominate tort" was expressed by Zelling J in Bassanese v Martin (1982) 31 SASR 461 at p463.
Whatever may have become of that "innominate tort" is unclear, but at all events Beaudesert Shire Council v Smith does not assist the plaintiff in the present case for Senior Constable Mikulski committed no unlawful act at all. He did no more than threaten to make an arrest and accordingly, the plaintiffs cannot succeed on an action on the case for trespass.
The plaintiffs have failed to establish on the balance of probabilities that by threatening arrest Senior Constable Mikulski intended to injure the plaintiffs or either of them. No threat of arrest was made to the second–named plaintiff and there is nothing to suggest that Mr Mikulski ever considered her in his dealings with the first–named plaintiff and his agents. I am satisfied that, both on the 11 and 19 August, the police officer consciously detached himself from any civil dispute between Mr Adam and Mr Bick. I am satisfied that at all times he did and said neither more nor less than he considered the law obliged him to do in the proper discharge of the duties of his office. Although I am unable to make a finding that on 19 August 1988 Senior Constable Mikulski was invoking the provisions of either the Police Offences Act or the Criminal Code as a basis for threatening to arrest Messrs Adam and Muhlbacher, I am satisfied that such threat was not made with the intention of causing economic harm to either of the plaintiffs. Accordingly the plaintiffs have not made out their cause of action and there will be judgment for the defendant against the plaintiffs.
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