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Hamilton v Halesworth

Hamilton v Halesworth

Case [1937] HCA 69 13 December 1937

Limitation Periods

Appeal

Jurisdiction

Statutory Construction

Negligence & Tort

Statutory Interpretation

Civil Procedure

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58 CLR 369

HALESWORTH

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Police Offences-Limitation of actions-Arrest by special constable "in pursuance of "

Police Offences Act-Period within which action may be commenced--Different periods prescribed in different statutes-Bona fides of special constable-Burden of proof of mala fides-Police Offences Act 1901-1936 (N.S.W.) (No. 5 of 1901- No. 30 of 1936), secs. 101 (1A), 103, 114*-Crimes Act 1900-1929 (N.S.W.) (No. 40 of 1900-No. 39 of 1929), secs. 352, 520, 563.*

Sec. 101 of the Police Offences Act 1901-1936 (N.S.W.) provides for the appointment of special constables. Sec. 103 of that Act enacts that " every special constable appointed under this Act shall have, exercise, and enjoy all such powers, authorities, advantages, and immunities stable duly appointed now has by virtue of the common law, or of any Act or Imperial Act."

Held that in exercising the power of arrest conferred upon constables by sec. 352 of the Crimes Act 1900-1929 (N.S.W.) a special constable appointed under the Police Offences Act 1901-1936 (N.S.W.) acts in pursuance of the Police Offences Act and is, therefore, entitled to the protection of sec. 114 thereof. See 114 (1) of the Police Offences

Sec. 563 (1) of the Crimes Act 1900- Act 1901-1936 (N.S.W.) provides: All

1929 (N.S.W.) provides: All actions actions to be commenced against any

against any person, for anything done, person for anything done in pursuance

or reasonably supposed to have been done in pursuance of this Act, shall be commenced within six months after

58 CLR 370

370

HIGH COURT

A special constable is entitled to the protection of sec. 114 of the Police Offences Act 1901-1936 (N.S.W.) provided that he acts under a bona fide belief in the existence of a state of facts which, if they existed, would justify him in doing the acts complained of. Some facts must exist which give rise to an HALES-

honest belief, but it is not necessary that the belief should be reasonable, and the burden of proof of an indirect motive or mala fides lies upon the plaintiff.

The application of sec. 114 of the Police Offences Act 1901-1936 (N.S.W.) to the exercise by a special constable of the power of arrest conferred upon con- stables by sec. 352 of the Crimes Act 1900-1929 (N.S.W.) is not excluded by

Decision of the Supreme Court of New South Wales (Full Court) Hamilton V. Halesworth, (1937) 54 W.N. (N.S.W.) 198, affirmed.

APPEAL from the Supreme Court of New South Wales.

In an action brought by William Hamilton in the Supreme Court of New South Wales against Fred Halesworth, the plaintiff sued in three counts alleging (a) wrongful arrest, (b) assault, and (c) malicious prosecution.

The defendant pleaded (i.) not guilty, (ii.) not guilty by statute, the Acts relied on being the Crimes Act 1900 and particularly secs. 352 and 563, and the Police Offences Act 1901, as amended by the Police Offences (Amendment) Act 1908, and particularly secs. 101, 102, 103, and 114, and…

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 Hamilton v Halesworth

Details

AGLC: Hamilton v Halesworth [1937] HCA 69
Case: [1937] HCA 69
Decision Date: 13 December 1937

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, William Hamilton, sued the respondent, Fred Halesworth, a park ranger and special constable, for wrongful arrest, assault, and malicious prosecution. The dispute arose from Halesworth's apprehension of Hamilton and two companions for allegedly stealing pansy plants from Centennial Park. Hamilton's charge was later dismissed.

The central legal issues before the court were whether the respondent, as a special constable, was entitled to the protection of section 114 of the *Police Offences Act 1901-1936* (NSW), which prescribed a two-month limitation period for actions brought against persons acting in pursuance of that Act, and whether the appellant's action, commenced more than two months but less than six months after the events, was therefore out of time. This required the court to determine if the respondent's actions, including the arrest, were undertaken "in pursuance of" the *Police Offences Act*, or if they were instead governed by the *Crimes Act 1900-1929* (NSW), which provided a six-month limitation period. The court also considered whether the respondent had acted *bona fide* in exercising his powers.

The High Court held that the respondent, a special constable appointed under the *Police Offences Act*, was entitled to the protection of section 114 of that Act. The court reasoned that section 103 of the *Police Offences Act* conferred upon special constables the powers and immunities of ordinary constables, effectively incorporating those powers into the *Police Offences Act*. Therefore, when the respondent acted to apprehend the appellant, he was acting in purported pursuance of the *Police Offences Act*, even if he was exercising powers derived from the *Crimes Act*. The court found that there was no evidence to suggest the respondent did not *bona fide* believe in the existence of facts that would justify his actions, and the burden of proving mala fides lay with the appellant, a burden which had not been discharged. The court affirmed the decision of the Supreme Court, dismissing the appeal.

Orders