Re: ROBERT ALEXANDER DONALDSON And: IAN COLLINGS BROOMBY (1982) 60 FLR 124 No. ACT G30 of 1981 False Imprisonment - Appeal - Statutes
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY REGISTRY GENERAL DIVISION Deane(1), Fisher(2) and Kelly(3) JJ.
CATCHWORDS
False Imprisonment - power to arrest without warrant where suspected past breach of a law of Commonwealth or Territory - conditions precedent to the existence of the power
Appeal from Australian Capital Territory - inconsistency of Commonwealth Act, Ordinance of A.C.T. and continued operation of N.S.W. Act - whether the effect of such inconsistency is implied repeal.
Limitation of Action - notice required where arrest was "reasonably supposed to have been done" in pursuance of N.S.W. Act - whether the provision of N.S.W. Act must be operative in the Territory - mistake not as to effect of provision but as to existence - quantum of damages.
Seat of Government (Administration) Act, 1910, s.4
Police - Power to arrest without warrant in Australian Capital Territory - Suspected past offence - Inconsistent legislation - Implied repeal - Crimes Act 1914 (Cth), s. 8A - Crimes Act, 1900 (N.S.W.), s. 352 - Police Ordinance 1927 (A.C.T.), s. 18(e).
Statutes - Interpretation - "This Act" - Whether referring also to that part of "this Act" which had ceased to operate in Australian Capital Territory - Crimes Act, 1900 (N.S.W.), s. 563(1).
HEADNOTE
The appellant was arrested, without warrant, in 1976 by the respondent, an officer of the Australian Capital Territory police force, for a suspected past offence notwithstanding that the respondent did not believe that a summons would be ineffective.
The appellant sued the respondent seeking damages for, inter alia, wrongful arrest but failed to give the respondent notice in writing of the action or of the cause thereof at least one month before the commencement of the action as required by s. 563(1) of the Crimes Act, 1900 (N.S.W.). The action having been dismissed because of that failure, the appellant appealed to the Full Court of the Federal Court of Australia.
Held: Per Deane and Kelly JJ. - (1) The provisions of s. 352 of the Crimes Act, 1900 (N.S.W.), in its application to the Australian Capital Territory, and of s. 18(e) of the Police Ordinance 1927 (A.C.T.), at least to the extent to which they would confer a power to arrest without a warrant on a constable in respect of a suspected past offence, are inconsistent with the provisions of s. 8A of the Crimes Act 1914 (the Act) and ceased to have effect in the Australian Capital Territory, at the latest, at the time of the 1960 amendment to s. 8A of the Act.
(2) The only general power of arrest without warrant possessed by a member of the police force in…
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.
The case of Donaldson v Broomby involved a dispute between Robert Alexander Donaldson, the plaintiff, and Ian Collings Broomby, the defendant. The primary issue was whether the defendant had falsely imprisoned the plaintiff. The case was heard and decided in the Supreme Court of the Australian Capital Territory, and later appealed to the same court.
The court had to determine the legal validity of the defendant's actions in detaining the plaintiff, particularly whether the defendant had the power to arrest without a warrant under the circumstances of the case. This involved examining the conditions under which such a power could be exercised and whether the defendant's actions met these conditions. The court also had to consider the extent to which the defendant's actions constituted false imprisonment and whether any statutory provisions could be invoked to justify the arrest.
The court found that the defendant did not have the power to arrest the plaintiff without a warrant and that the detention was unlawful. The court concluded that the defendant's actions constituted false imprisonment and awarded the plaintiff damages in the amount of $1000. The court also ordered the defendant to pay the plaintiff's costs of the action. The appeal was allowed, and the orders of the Supreme Court were set aside in favour of the plaintiff. The court further ordered that the defendant pay the plaintiff's costs of the appeal, including costs taxed on the full scale.
Orders
Orders of the court
1. THE appeal be allowed.
2. THE Orders of the Supreme Court of the Australian Capital Territory be set aside and in lieu thereof order:
(i) judgment in the amount of $1000 be entered in favour of the plaintiff Robert Alexander Donaldson against the defendant Ian Collings Broomby;
(ii) that the defendant pay to the plaintiff his costs of the action and that, notwithstanding the provisions of O.65 r.7A of the Rules of the Supreme Court of the Australian Capital Territory, such costs be taxed on full scale.
3. THE respondent pay the appellant's costs of the appeal.