Hartnett v State of New South Wales

[1999] NSWSC 265

CITATION:	Hartnett v State of New South Wales [1999] NSWSC 265
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	19380/93; 19373/93; 19402/93
HEARING DATE(S):	1-3 February 1999
JUDGMENT DATE:	31 March 1999
PARTIES :	Rachel Priness Hartnett (Plaintiff) Faith Helleyer (Plaintiff) Elizabeth Rogers (Plaintiff) State of New South Wales (Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	Mr M Finnane QC (Plaintiffs) Mr B Donovan QC (Defendant)
SOLICITORS:	Greg Walsh & Co, Solicitors (Plaintiffs) IV Knight, Crown Solicitor (Defendant)
CATCHWORDS:	CHILDREN - in need of care; warrant to search for and remove children; only one person named to execute warrant; purported execution by other persons; validity; CHILDREN - in need of care; search warrants obtained; whether removal of children can subsequently be justified by reference to other statutory powers; SEARCH WARRANTS - one person named in warrants; warrants executed by other persons; person named co-ordinating purported exeuction by others; use of assistants to execute warrant; TRESPASS - entry to premises and removal of children; execution of valid warrant authorising entry and removal; purported execution of warrant by persons named therein; WORDS & PHRASES - "assistants"
ACTS CITED:	Children (Care and Protection) Act 1987, ss 3, 60, 61. Search Warrants Act 1985, ss 3, 14, 18, 21 Search Warrants Regulation 1994, Forms 3, 4.
CASES CITED:	King v The Queen [1969] 1 AC 304 Entick v Carrington (1765) 2 WilsKB 275, 95 ER 807 George v Rockett (1990) 170 CLR 104 R v Applebee (1995) 79 A Crim R 554 Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372 R v Vickery [1996] 1 QdR 334 Crowley v Murphy (1981) 52 FLR 123 Australian Broadcasting Tribunal v Saatchi and Sastchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 LS v Director-General of FACS (1989) 18 NSWLR 481 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 Anderson v Sullivan (1997) 78 FCR 380 Lockwood v The Commonwealth (1954) 90 CLR 177 Warke v Daire (1983) 32 SASR 321
DECISION:	Plaintiffs entitled to declarations to the effect that the defendant's servants and agents were acting outside the authority conferred by the warrants and wrongfully and contrary to law; Matter pleaded in the alternative in paragraph 7(B) of the Further Amended Defence struck out.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
31 MARCH 1999
19380/93 - Rachel Princess HARTNETT v State of New South Wales
19373/93 - Faith HELLEYER v State of New South Wales
19402/93 - Elizabeth ROGERS v State of New South Wales
JUDGMENT

1 HIS HONOUR: On the morning of 15 May 1992 three premises, at RMB 70 Windsor Road Kellyville, 50 Robert Road Cherrybrook and 135 Glenhaven Road Glenhaven, were entered by police officers accompanied by officers of the Department of Community Services (DOCS). A number of children in the premises were taken into custody, removed from the premises and placed under the care of the Director-General of the Department (the Director-General). Subsequently "care proceedings" under Part 5 of the Children (Care and Protection) Act 1987 (the CCP Act) were commenced in respect of the children and these matters proceeded for some time before they were ultimately settled and the children discharged.
2 In the current proceedings, the three plaintiffs, who are children who were taken into custody, one from each of the above addresses, seek damages for wrongful arrest, false imprisonment, trespass to the person and other alleged wrongs against the State of New South Wales based on its vicarious liability for the acts of the police officers and the DOCS officers who purported to act pursuant to warrants issued under s 61 of the CCP Act.
3 Paragraph 11 of the Further Amended Statement of Claim alleges that the execution of the warrants at the respective premises was invalid, and that in purporting to act pursuant to the warrants, the police and DOCS officers acted contrary to law, wrongfully and unlawfully arrested and imprisoned the plaintiffs. Particulars were set out, alleging that the warrants were not executed by Sergeant Gregory Wayne Sullivan the person named in the warrants, that the warrants were executed by servants of the defendant not named in the warrants and that the said Sergeant Sullivan applied for the warrants knowing that they would be executed simultaneously by unauthorised persons.
4 Paragraph 7(B) of the Further Amended Defence in each case was as follows:

7 . As to paragraph 11 . . . . .
(B) The Defendant asserts that in the exercise of statutory duty to act to protect children suspected of being in need of care the warrant was lawfully executed, when the said applicant Detective Sgt Sullivan remained at the central command post and 3 other officers simultaneously attended the named premises so assisting the said applicant in accordance with section 61(4) of the (CCP) Act and section 18 of the Search Warrants Act 1985 when the Plaintiff was removed from her carers or in the alternative the Defendant acted pursuant to s 60(1) of the CCP Act in that an officer of the Department and/or a member of the Police force suspected on reasonable grounds that a child was in immediate danger of abuse and therefore entered and removed the Plaintiff and other children on that premise (my italics).

5 On 6 July 1998, I ordered that all issues arising under paragraph 11 of the Further Amended Statement of Claim be tried separately and before the trial of any other issues. I also on 17 August 1998 granted the plaintiff in proceedings no. 19380/93, Rachel Princess Hartnett, leave to file a notice of motion to strike out the second alternative part of paragraph 7(B) and the whole of paragraph 7(BB) of the further Amended Defence. The notice of motion filed 5 November 1998 seeks to strike out the alternative plea in paragraph 7(B), but no application has been made at this stage in respect of paragraph 7(BB). It is agreed that the outcome of the motion in the present proceedings will determine the outcome of the alternative plea in paragraph 7(B) in all the related proceedings.
6 The issues at the present hearing are therefore twofold; firstly, whether the purported execution of the warrants was invalid because Sergeant Sullivan, the only person named in the warrants as authorised to execute them, was not present at any of the subject premises; and secondly, whether the defendant's servants having applied for and obtained search warrants under s 61 of the CCP Act, they can in the event of the warrants not having been validly executed, rely on the alleged exercise of the powers conferred under s 60 of the CCP Act to enter premises and take children without obtaining a warrant under s 61.
7 The evidence relating to the first issue is within a comparatively small compass and is contained in a number of affidavits filed on behalf of the defendant. Those affidavits show that, armed with a quantity of information, Sergeant Sullivan consulted a magistrate at the Children's Court who advised him that if those responsible were concerned for the welfare of the children, the appropriate course was to obtain warrants. Subsequently he attended on an authorised justice at Burwood Court House and applied for warrants under Part 2 of the Search Warrants Act 1985 (the SW Act). Whilst there, he was contacted by telephone by another police officer involved in the case and told that DOCS officers would only go to the relevant premises with the police if warrants were obtained under s 61 of CCP Act. He accordingly asked the authorised justice to issue warrants in respect of each premises under both Acts. This was done and he left the Court House with six warrants, three under Part 2 of the SW Act and three under s 61 of the CCP Act, a pair of warrants for each of the three premises where it was alleged children in need of care were located.
8 The warrants under Part 2 of the SW Act did not name any particular person to execute the warrants whereas those under s 61 named Sergeant Sullivan, and only Sergeant Sullivan, as the person authorised to execute them. The warrants had been applied for with some expedition because word had been received that similar action was intended to be taken the following morning in Victoria, and it was felt desirable to co-ordinate action between the two states.
9 The following morning a meeting was held at Castle Hill Police Station involving a large number of police and DOCS officers under Detective Inspector Rudd where instructions were given by him, and the operation was set out. After that the police and DOCS officers left to go to their respective premises. Sergeant Sullivan at all times remained at Castle Hill Police Station purporting to act, it would seem, in some form of co-ordinating capacity, although he was subject to the direction and the orders of his superior officer, Inspector Rudd, who was in charge of the operation, and who issued the operational orders before, and gave instructions to police by telephone, during the operation.
10 When the police and DOCS officers arrived at the three premises, the police entered the premises followed by the DOCS officers. The police showed the Notices to Occupiers to the adults who were present or to some of them, whilst the DOCS officers "rounded up" the children and conducted them to buses outside the premises, whence they were taken to establishments run by DOCS where they were kept until they were subsequently released by order of the Children's Court during the care proceedings. After the children had been taken away, the police searched the premises and removed a quantity of documents and other materials.
11 I am not concerned in these proceedings with the searches of the premises and the removal of the books and other items which may have been justified under the Part 2 warrants. The relevant issue under paragraph 11 of the Further Amended Statement of Claim and the first part of paragraph 7(B) of the Further Amended Defence is whether the removal of the children can be justified in view of the fact that the only person named in the relevant warrants was Sergeant Sullivan, and he was not at any of the premises and played no physical part in the removal of any of the children.
12 Search warrants are of two kinds, those authorised under Part 2 of the SW Act (Part 2 warrants) which are issued in respect of indictable, firearm and narcotic offences or things alleged to be stolen or otherwise unlawfully obtained (s 5); and those issued pursuant to particular Acts, such as s 61 of the CCP Act.
13 That section, so far as material, is as follows:
61 (1) An officer or member of the police force may apply to an authorised justice for a search warrant if the officer or member of the police force has reasonable grounds for believing that there is in any premises a child in need of care.

(2) An authorised justice to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an officer or member of the police force named in the warrant:
(a) to enter any premises specified in the warrant,
(b) to search the premises for the presence of the child, and
(c) to remove the child from the premises.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant issued under this section.
(4) Without limiting the generality of section 18 of the Search Warrants Act 1985 , a member of the police force or a medical practitioner, or both:
(a) may accompany an officer executing a search warrant issued under this section, and
(b) may take all reasonable steps to assist the officer in the exercise of the officer's functions under this section. . . . . .
Section 10 defines when "a child is in need of care" as including where adequate provision is not being made for the child's care or the child is being, or is likely, to be "abused", a term defined in s 3. Section 116 provides for the issue of search warrants where there are reasonable grounds for believing that there has been or is a contravention of the Act or Regulations. Its terms are not, for present purposes, materially different to s 61.

14 Part 3 of the SW Act contains a number of provisions applicable to both Part 2 warrants and warrants issued under particular statutes including s 61 of the CCP Act. Such provisions include s 14 requiring that the warrant be in or to the effect of the prescribed from, s 15 requiring a person executing the warrant to serve the occupier's notice, s 17 permitting the use of force, s 18 providing that a person may execute a search warrant with the aid of such assistance as the person considers necessary, and s 21 requiring the person to whom the warrant is issued to report to the authorised justice on execution of the warrant, while s 23 provides that a warrant is not invalidated by any defect other than a defect which affects the substance of the warrant in a material particular. The Search Warrants Regulation 1994 prescribes the forms for the warrants, namely Forms 3 (Part 2 warrants) and 4 (other warrants).
15 One significant difference between Part 2 warrants and warrants under s 61 of the CCP Act is that whereas Part 2 warrants authorise "any member of the police force" to execute the warrant, s 61(2) provides that the authorised justice may issue a warrant authorising an officer (ie of DOCS) or a member of the police force named in the warrant to enter the specified premises, search the premises for the presence of the child and remove the child from the premises, and the prescribed form of warrant (Form 4) expressly provides for the applicant to be named as the person authorised to execute it and allows space for the insertion of "any additional necessary person (eg police officer) who is required to accompany the applicant". The requirement for a DOCS or police officer to be named is important because if no such person is named when the legislation so requires, the warrant is invalid: King v The Queen [1969] 1 AC 304 at 312.
16 To enter on private premises without permission, a warrant or other statutory authorisation constitutes a trespass to the land: Entick v Carrington (1765) 2 WilsKB 275 at 291, 95 ER 807 at 817, George v Rockett (1990) 170 CLR 104 at 110-111, and the removal of children except pursuant to the due execution of a warrant or other statutory authority constitutes a trespass to the person and a false imprisonment. Under a search warrant the only persons authorised to execute the warrant are members of the police officers (in the case of a Part 2 warrant) or the persons named in the warrant (if it be a Part 3 warrant - such as a warrant under s 61 of the CCP Act). In the case of a warrant under s 61 the person executing the warrant may do so with the aid of such "assistants" as he or she considers necessary: s 18 SW Act; and in addition under s 61(4) of the CCP Act if an officer (ie a DOCS officer) is executing the warrant, he or she may be accompanied by and be assisted by a member of the police force or a medical practitioner or both, and there seems no reason why such officer may not still call on the aid of "assistants" pursuant to s 18 of the SW Act. But all these provisions relate to assisting the person executing the warrant.
17 To "execute" a court order or warrant, means to carry out what is directed or authorised by the order or warrant: Jowitt: Dictionary of English Law (1959) at 753. Having regard to the terms of s 21(1)(b) of the SW Act, the report to the authorised justice relating to the execution of the warrant would need to set out whether the premises were entered, whether there was a search for the children and whether any children were removed. See also Form 7 and the reports actually furnished in the instant cases. This throws some light on what is meant by "execution" of the warrant.
18 What was authorised by the s 61 warrant was to enter the premises, to search the premises for the presence of the child (or children) and to remove the child/ren from the premises. Sergeant Sullivan did not physically do any of these things himself, he did not even attend any of the premises named in the warrants, but he remained at Castle Hill Police Station. It was submitted by Mr Donovan QC on behalf of the defendant that this in some way amounted to Sergeant Sullivan executing the warrants with the aid of assistants authorised by s 18, and that the section does not require the person authorised to play any particular part or even to attend the premises.
19 But an assistant is someone who assists and a distinction is to be drawn between an assistant who acts with and helps a principal and a delegate or representative or agent who acts in place of the principal. It was not, and cannot be, suggested that Sergeant Sullivan had any power to delegate his authority, and I fail to see how as a matter of fact it can be said that he has played any part in the execution of the warrants. Being in a radio control room in touch with the people who were at the premises is not in my view taking part in the execution. Indeed Sergeant Sullivan was not even directing the other officers who were at the premises, his superior officer at Castle Hill Police Station, and the person who was in charge of the operation was Detective Inspector Rudd. Although not relevant to these proceedings, I do not consider that Detective Inspector Rudd was executing the warrants with assistants; and it would not have been sufficient if he had been named therein.
20 There have been two recent Australian cases where persons not named in search warrants have taken part in searches involving warrants under the Crimes Act 1914 (Cth), s 10 which provides that a Magistrate or Justice of the Peace may in certain circumstances grant a search warrant authorising any constable named in the warrant, with such assistance as is necessary and reasonable, to enter premises, and seize specified items.
21 In R v Applebee (1995) 79 A Crim R 554, the warrant was addressed to a number of named police officers. When the police entered and searched the premises, a number of items were seized by those police named in the warrant, but one item, a Nintendo, was recovered and seized by another constable not named in the warrant. In holding that the seizure of the Nintendo was unlawful, Higgins J said at 559:
"Constable Young, had the search been valid, was entitled to enter and search in accordance with it. He was the warrant holder. There were other officers named in the warrant who were similarly so authorised. Those officers were entitled by the warrant to avail themselves of "such assistance as is necessary and reasonable" . . . . . However, s 10 (1) does not authorise the named officers to delegate the authority to enter and/or the authority to seize items to any other officer not so named. . . . . . In this case, authority was wrongly delegated by the warrant holder to Constable Kossatz, an officer who was not named in the warrant, to take an active part in the search as if he was a person named in the warrant. He recovered and seized the Nintendo system. That seizure of those goods was, therefore, unlawful for that additional reason.
22 The following year in Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372 Lockhart J was concerned with the case of police officers named in the warrant in a tax fraud case being accompanied by officers of the Australian Taxation Office (ATO) in a search of premises. It appears that one or more of the named police officers examined the documents before they were seized, but after they had been examined and selected by the ATO officers. His Honour held that the police officers named in the warrant did not abdicate their responsibility to consider the relevant documents and decide whether or not they fell within the scope of the warrant, and that the presence of persons other than those authorised to execute the warrant was not fatal to the validity of the execution. His Honour said: (at 384-5)
"The authority conferred by s 10 upon constables named in the warrant to enter premises and seize things found there is to pursue these activities "with such assistance . . . as is necessary and reasonable". The obtaining of the assistance with entry, search (by implication), and seizure is not limited merely to assistance with entry of the premises. This follows both from the literal construction of s 10 and its obvious intent. The assistance includes assistance in relation to seizure of things, which in turn must carry with it, by implication, inspection of the articles, including documents, to see if they come within the terms of the warrant. . . . . . .

On the facts as I have found them there was no impermissible delegation of authority to the ATO officers. All ATO officers and police officers present were under the control of Purvis (the warrant holder). It was a large house that was to be searched and there were large numbers of documents to be perused."

23 With respect I agree with the views expressed by Lockhart J that the "assistance" authorised is not limited to entry, but includes assistance with search and seizure (and removal), provided that the persons named in the warrant remain in control and do not delegate their authority to others. It follows, with respect to Higgins J, that I have reservations concerning R v Applebee because it seems to me that, provided the named officers were present and in control of the operation, the assistance could extend to assistance with search and seizure, as indicated by Lockhart J.
24 But in both those cases the persons named in the warrants were themselves at the premises taking an active part in the search. That is not the case here, where Sergeant Sullivan was not present at the premises or physically involved in the search in any way. Both of the cases are authority in my view for the proposition that providing assistance in the execution of a warrant to the person(s) named therein, does not extend to carrying out the execution of the warrant in lieu of the person(s) named.
25 I was referred to R v Vickery [1996] 1 QdR 334, a decision of the Queensland Court of Appeal. In that case a warrant under the Drugs Misuse Act 1986 (Qld) authorised a named Chief Superintendent of Police to put two listening devices and visual surveillance devices into a house and intercept and record private conversations by means of those devices, and a section of the Act authorised the use of "assistants"; but the evidence showed that the installation and interceptions were done by police officers other than the named Chief Superintendent. It was held that, despite the use of the word "assistants", it was permissible for the Chief Superintendent to arrange to have all the physical activity involved in the inception carried out by persons authorised by him, doing none of it himself, provided that he remained in charge of the operation. The decision depended on the construction of the particular legislation, and with respect, I have some reservations about it, but the Court's ratio included that the Chief Superintendent remained in charge of the operation, whereas Sergeant Sullivan was never, and therefore did not remain, in charge of this operation.
26 Mr Donovan QC has in the alternative sought to rely on s 23 of the SW Act to which I have already referred, and has submitted that the warrant should be regarded as defective because it was known to the issuing authorised justice that Sergeant Sullivan was not going to be at the three premises at once, and would not in fact be attending any of the premises, therefore the naming of him was a defect in the warrant; and that as the warrants could have named the other police who were going to go, and did go, to the respective premises, the defect is one which does not affect the substance of the warrant in a material particular, and thus does not invalidate it. To examine the matter in this way is, in my view, not appropriate. The warrants as issued (subject to any other arguments that may be made in relation to the grounds for their issue and the information supplied to the authorised justice) were perfectly valid on their face, they were issued to a named person (namely Sergeant Sullivan) and at least in that regard they were valid. The invalidity relates only to the execution, not to the issue or the form of the warrants, and accordingly s 23 has no application.
27 Finally, Mr Donovan QC submitted that the Courts have not taken as strict a stand on the execution of search warrants as they have on their issue, but in Crowley v Murphy (1981) 52 FLR 123, the Court emphasised the need for strict compliance with the terms of the search warrant in its execution.
28 The persons who purported to execute these warrants were the police and/or DOCS officers who went to the respective premises; but they were not authorised by the warrants to exercise the powers conferred by s 61. It follows that they acted without the authority of the warrants and, unless their actions can be justified by some other authority their actions constituted trespasses.
29 The other matter involved in the present hearing is the application by notice of motion to strike out the alternative allegation in paragraph 7(B) of the Defence as causing prejudice, embarrassment or delay in proceedings or otherwise amounting to an abuse of the process of the Court. That alternative allegation is as follows:
" . . . . . in the alternative the defendant acted pursuant to s 60(1) of the CCP Act in that an officer of the Department and/or a member of the police force suspected on reasonable grounds that a child was in immediate danger of abuse and therefore entered and removed the plaintiff and other children on that premise."
30 Section 60(1) provides as follows:
An authorised officer, or a member of the Police Force, may (without any authority other than that conferred by this subsection):

(a) enter any premises in which the officer or member suspects that there is a person who is a child, if the officer or member suspects on reasonable grounds that the person is in need of care by virtue of the person's being in immediate danger of abuse, and
(b) search the premises for the presence of any such person, and
(c) remove any such person from the premises.
The balance of the section similarly authorises an authorised officer or a member of the Police Force without warrant to remove from a public place a child suspected on reasonable grounds of being in need of care, not subject to supervision or control of a responsible adult and or habitually frequenting a public place, or who is or has recently been on premises where prostitution or acts of child prostitution take place or persons are employed for pornographic purposes, etc.

31 Mr Finnane QC on behalf of the plaintiffs sought to refer to evidence to the effect that the persons whose names were particularised by the defendant as having the relevant suspicions did not in fact have such suspicions, but I rejected such evidence as this is not an application for summary judgment on the issue, but an application to strike out the pleading.
32 He next submitted that the pleading was defective because it did not allege either that the department officers involved were "authorised officers" (see definition of "authorised officer" s 3(1)), nor did it allege that the particular authorised officers or members of the police force who had the suspicions required by subs (1) were the same persons as entered the premises and searched for and removed the children. Mr Donovan QC conceded that as a matter of form this objection was valid and, subject to my ruling on the substantive issue, sought leave to redraft the pleading to overcome this defect.
33 The main submission on behalf of the plaintiffs was that where a statutory authority purports to act under a particular statutory power and it is later found that such action was invalid, it cannot then turn around and justify its action by reference to another statutory power which it did not advert to at the time the action was taken; and he referred me to Australian Broadcasting Tribunal v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 at 9 and LS v Director-General of FACS (1989) 18 NSWLR 481 at 489. But this principle is not of universal application: Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412, 424-5 and Anderson v Sullivan (1997) 78 FCR 380 at 400; see also: Lockwood v The Commonwealth (1954) 90 CLR 177 at 184, Warke v Daire (1983) 32 SASR 321 at 327. I am not persuaded that the defendant having relied on what it was perceived to be powers conferred by the warrants issued under s 61, cannot seek to justify the actions of its servants by reference to any other power such as s 60; but in my view the defendant faces a more fundamental problem.
34 The scheme of Part 5 (ss 55 to 88) of the Act is directed to children in need of care (see particularly the objects set out in s 55) and s 57 provides for the making of care applications. Where a care application has been made, a child may be removed from the premises where the child is, by order of the Children's Court, while s 61 provides for the removal of a child pursuant to a warrant issued under that section. On the other hand, s 60 provides for entry and removal of a child without a warrant or an order of the Children's Court if an authorised officer or member of the police force suspects on reasonable grounds that the person is in need of care "by virtue of the person's being in immediate danger of abuse" or the other situations that are referred to in subs (2) and (3).
35 The scheme of the sections indicates that s 60 is directed to the situation where there is believed to be an urgent need to protect the child from immediate danger of abuse; in other words, the situation where there is no time to apply for a warrant because the child may suffer, or continue to suffer, abuse etc whilst application is being made for a warrant. Section 61 provides a degree of protection against arbitrary or unjustified intrusion or interference by requiring the available information to be considered by an authorised justice, who must be satisfied there are reasonable grounds before he issues any warrant; but if s 60 were not limited to cases of urgency, there would be no need to provide for warrants under s 61 at all, as s 60 could be utilised in all cases, without the protection I have referred to.
36 I therefore endorse the view expressed in Blackmore: The Children's Court and Community Welfare in NSW at 313, dealing with s 60:
"It embraces . . . . . all circumstances in which there is an immediate danger of abuse to enable urgent action to be taken . . . . .

The question of whether there is "immediate danger of abuse" appears to be one of judgment for the officer concerned depending on the prevailing circumstances, but obviously a consideration directed to the most urgent situations when other means of searching for and removal of the child are likely to be productive of undue delay or harm to the child."

37 It follows that in the subject matters, the fact that the relevant persons (whoever they may be) applied for warrants under s 61, indicates that they did not regard the situation as so urgent that they did not have time to apply for such warrants, and accordingly s 60 could not apply. The application for the warrants is inconsistent with a suspicion that the children were in immediate danger of abuse within the terms of s 60(1).
38 It follows that no matter what the evidence may turn out to be, the defendant cannot rely on the powers contained in s 60(1) to justify the removal of the children, and so the alternative plea in the latter part of paragraph 7(B) of the Amended Defence discloses no reasonable defence and will cause prejudice, embarrassment and delay in the proceedings, and accordingly should be struck out pursuant to SCR Pt15, r26(1)(a) and (b).
39 In relation to the separate issue for determination, the plaintiffs are therefore entitled to declarations to the effect that in entering the relevant premises, searching for and removing the various plaintiffs, the defendant's servants and agents were not acting under any authority conferred by the warrants issued pursuant to s 61 CCP Act, but wrongfully and contrary to law. I shall stand the matter over to enable the parties to agree, if they can, on the precise form of the declarations. In relation to the notice of motion, I order that the matter pleaded in the alternative in paragraph 7(B) of the Further Amended Defence be struck out. Unless the defendant wishes to be heard to the contrary, I will order that the defendant pay the plaintiffs' costs of the trial of the separate issue and of the motion.

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Last Modified: 03/31/1999