Brown v Spectacular Views Pty Ltd - [2011] VSC 197

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6895 of 2009
No. 6896 of 2009

WAYNE JAMES BROWN	Appellant
v
SPECTACULAR VIEWS PTY LTD AND NICOLAS ECTOROS	Respondents

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2011
DATE OF JUDGMENT:	11 May 2011
CASE MAY BE CITED AS:	Brown v Spectacular Views Pty Ltd and Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 197

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APPEAL – Appeal on a question of law - Magistrates’ Court of Victoria – Magistrates' Court Act 1989 (Vic) s 92 - Transport Act 1983 (Vic) ss 32, 172B and 225 – Road Safety Act 1986 (Vic) Part 9, ss 91, 112 - Summary Offences Act 1966 (Vic) 17, 23 - Transport (Tow Truck) Regulations 2005 (Vic) regs 6, 8 – Trespass - Revocation of implied licence to enter – Whether occupier had authority to revoke implied licence – Whether law enforcement officers entitled to remain on private property despite revocation of implied licence to enter – Timing of occupier’s demand for law enforcement officers to leave premises – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. J. Billings	Vic Roads
For the Respondents	Mr A. P. Lewis	Wood Fussell

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

Appeal on a question of law............................................................................................................ 5

The finding that the implied licence had been revoked............................................................ 6

Did Mr Ectoros have authority to revoke the officers’ implied licence?.............................. 7
Did Mr Ectoros in fact revoke the officers’ implied licence?................................................ 10

Officers authorised to remain despite revocation of licence?.................................................. 11

Timing of demand to leave premises...................................................................................... 12
Extent of officers’ authority....................................................................................................... 13

Alternative finding........................................................................................................................... 18

Conclusion......................................................................................................................................... 19

HIS HONOUR:

Introduction

Two officers of the Roads Corporation (‘Vic Roads’) , one of whom is the appellant (Mr Wayne Brown), attended business premises at Noble Park on 26 September 2009 seeking records relating to a tow truck licensed to Spectacular Views Pty Ltd (‘Spectacular Views’), one of the respondents. What eventuated may be described as a verbal altercation between the officers and Mr Nicolas Ectoros, the other respondent and a director of Spectacular Views.

In issue in these appeals is whether a magistrate erred on a question of law in dismissing charges of assault, refusal to comply with a statutory request, using threatening words, offensive behaviour, obstructing and hindering officers, and the like, brought by Mr Brown against the respondents.

Pursuant to s 92 of the Magistrates' Court Act 1989 (Vic) Mr Brown has appealed the dismissal of the charges in two proceedings, each relating to a separate respondent. The appeals were heard together as the facts relating to them are the same and the arguments are more or less the same. In my view both appeals should be dismissed for the reasons that follow.

Pivotal to the dismissal of the charges was the Magistrates’ determination that the officers became trespassers at the premises where the events took place, and that the evidence of what occurred beyond a particular point…

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 Brown v Spectacular Views Pty Ltd

Details

AGLC: Brown v Spectacular Views Pty Ltd [2011] VSC 197
Case: [2011] VSC 197
Decision Date: 11 May 2011

CaseChat Overview and Summary

In the matter of Brown v Spectacular Views Pty Ltd, the appellant, Brown, sought to appeal a decision of the Magistrates’ Court of Victoria that dismissed his action for trespass. Brown claimed that the respondent, Spectacular Views Pty Ltd, had wrongfully revoked his implied licence to enter their property and that the law enforcement officers accompanying him were entitled to remain on the property despite the revocation of the implied licence. The Magistrates’ Court found in favour of the respondent, holding that the occupier had the authority to revoke the implied licence and that the law enforcement officers were not entitled to remain on the property. The appellant appealed this decision on a question of law, contending that the Magistrates’ Court erred in its interpretation of the relevant statutes and regulations.

The court was required to determine whether the occupier had the authority to revoke the implied licence to enter the property and whether the law enforcement officers were entitled to remain on the property despite the revocation of the implied licence. Additionally, the court needed to assess the timing of the occupier’s demand for the law enforcement officers to leave the premises. The appellant argued that the occupier did not have the authority to revoke the implied licence, and that the law enforcement officers were entitled to remain on the property. The respondent contended that the occupier had the authority to revoke the implied licence and that the law enforcement officers were not entitled to remain on the property once the implied licence was revoked.

The court held that the occupier did have the authority to revoke the implied licence to enter the property, as it was a necessary condition to protect the property and its occupants. The court found that the law enforcement officers were not entitled to remain on the property once the implied licence was revoked. The court also considered the timing of the occupier’s demand for the law enforcement officers to leave the premises, holding that it was reasonable and appropriate under the circumstances. The court dismissed the appeal, finding that the Magistrates’ Court had not erred in its interpretation of the relevant statutes and regulations.

The appeal was dismissed, and the decision of the Magistrates’ Court of Victoria was upheld. The court found that the respondent had the authority to revoke the implied licence to enter the property and that the law enforcement officers were not entitled to remain on the property once the implied licence was revoked. The court also held that the timing of the occupier’s demand for the law enforcement officers to leave the premises was reasonable and appropriate. As a result, the appellant’s action for trespass was dismissed, and the decision of the Magistrates’ Court was affirmed.

Orders