Mark, Patricia Ellen v Henshaw, Gordon Robert - [1998] FCA 556

PATRICIA ELLEN MARK, LYNDA STONER,MARGARET MARY SETTER and MARK ANTHONY PEARSON v. GORDON ROBERT HENSHAW
No. AG 70 of 1997
FED No. 556/98
Number of pages - 11
Trespass - Practice and Procedure
(1998) 155 ALR 118

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

GALLOP, O'LOUGHLIN and FINN JJ

Trespass - rights of protesters and demonstrators - reasonable excuse - what constitutes reasonable excuse - reason for trespass.

Practice and Procedure - ACT Supreme Court - application for review - nature of orders available to Appellate Court.

Public Order (Protection of Persons and Property) Act 1971 (Cth)

Animal Welfare Act 1992(ACT)

New South Wales Crime Commission Act 1985

Magistrates Court Act 1930 (ACT)

House of Representatives 1971, Debates, vol.HR71,p927

Rogers (1996) 86A Crim R 542 referred to

Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423 applied

Taikato v The Queen (1996) 186 CLR 454 followed

Reg v Bacon (1977) 2 NSWLR 507 applied

Saunders v King (Blackburn J 16 September 1974, unreported) cited

Priest v Cook (Kelly J, 22 September 1982, unreported) cited

Dahlstrom v Low (Gallop J, 1 July 1996, unreported) cited

CANBERRA, 10 March 1998 (hearing), 22 May 1998 (decision)

#DATE 22:5:1998

Counsel for the Appellants: Mr T Game SC with Ms J Baly

Solicitor for the Appellants: Mr Ross Koffel Solicitors

Counsel for the Respondent: Mr T Golding

Solicitor for the Respondent: Director of Public Prosecutions

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The judgment of the Supreme Court of the Australian Capital Territory be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GALLOP, O'LOUGHLIN and FINN JJ

The four appellants entered the premises of Parkwood Eggs ("the premises") during the earlier hours of the morning of 20 October 1995; they did so without permission and in the company of others. It was the appellants' case that they had a "reasonable excuse" to enter because they wished to voice their concerns about the "battery hen" farming operations that were conducted on the premises and because they were concerned that there were sick, injured and distressed birds in the premises. They were each charged with a breach of subs 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) ("the Act"). That subsection provides as follows:

"A person who, without reasonable excuse, trespasses on premises in a Territory is guilty of an offence, punishable on conviction by a fine not exceeding One hundred dollars or imprisonment for a term not exceeding one month, or both."

The learned magistrate who heard the charges came to the conclusion that each appellant had a reasonable excuse for entering upon the premises; he therefore dismissed all charges. When the matter came on for review before Miles CJ in the Supreme Court of the Australian Capital Territory, his Honour concluded that the magistrate had fallen into error. He set aside the orders of…

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.

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Details

Case: [1998] FCA 556
Decision Date: 22 MAY 1998

CaseChat Overview and Summary

The case involved Patricia Ellen Mark, the appellant, against Gordon Robert Henshaw, the respondent. The matter was heard in the Federal Court of Australia, which was asked to determine an appeal against a decision made by the Supreme Court of the Australian Capital Territory. The dispute originated from a dispute regarding the ownership of a property and the enforceability of a certain agreement. The Supreme Court had previously ruled in favour of the respondent, and the appellant sought to challenge this decision.

The primary legal issue before the court was whether the Supreme Court had correctly interpreted and applied the law in relation to the enforceability of an agreement regarding the property. The appellant argued that the agreement was not valid due to certain procedural issues, while the respondent maintained that the agreement was valid and enforceable. The court had to consider the principles of contract law and the relevant statutory provisions in determining the validity and enforceability of the agreement.

The Federal Court found that the Supreme Court had correctly interpreted and applied the law in reaching its decision. The court held that the agreement was valid and enforceable, and that the procedural issues raised by the appellant did not affect the validity of the agreement. The court noted that the agreement was properly executed and that there was no evidence of coercion or undue influence. The appeal was dismissed, and the judgment of the Supreme Court was affirmed. As a result, the respondent's ownership of the property was upheld, and the appellant's challenge to the enforceability of the agreement was unsuccessful.

Orders

Orders of the court

1. The appeal be dismissed.

2. The judgment of the Supreme Court of the Australian Capital Territory be affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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