Meeks v Kirkham - [2000] WASCA 94

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MEEKS -v- KIRKHAM [2000] WASCA 94

CORAM: KENNEDY J
IPP J
WALLWORK J

HEARD: 13 MARCH 2000

DELIVERED : 13 MARCH 2000

PUBLISHED : 12 APRIL 2000

FILE NO/S: FUL 113 of 1999

BETWEEN: OWEN JAMES MEEKS
Appellant (Plaintiff)
AND
STUART NEVILLE KIRKHAM
Respondent (Defendant)

Catchwords:

Tort - Assault - Authority to remove plaintiff from premises - Application of s 254 of the Criminal Code - Whether defendant authorised by occupier of premises - Evidence of defendant as to terms of authority given by occupier wrongly disallowed - Without that evidence, authority not adequately established

Legislation:

Criminal Code, s 254

Result:

Appeal allowed
New trial ordered

Representation:

Counsel:

Appellant (Plaintiff) : Mr P R Eaton
Respondent (Defendant) : No appearance

Solicitors:

Appellant (Plaintiff) : Bowen Buchbinder Vilensky
Respondent (Defendant) : No appearance

Case(s) referred to in judgment(s):

Subramaniam v Public Prosecutor (1956) 1 WLR 965
West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535

Case(s) also cited:

Nil

KENNEDY J: At the conclusion of argument in this matter, the appeal was allowed, the orders of the learned Commissioner set aside and a new trial ordered. These are my reasons for joining in the making of those orders.
The appellant instituted proceedings in the District Court of Western Australia seeking damages for assault. An order was subsequently made for the action to be listed for trial on the issue of liability only. On 16 July 1999, judgment was given in favour of the appellant on this issue, with damages to be assessed on the basis that the assault was constituted by the respondent's pushing the appellant into the appellant's car, causing the appellant to sustain a laceration to his right lateral eyebrow. The appellant appealed against this decision, claiming that there had been another assault immediately prior to the assault which was found by the learned Commissioner to have been committed, the Commissioner having, it was claimed, erroneously found the earlier assault to have been lawful.
The appellant had been in a relationship with Ms C M Willett for a number of years. That relationship had come to an end some six to seven weeks before the events the subject of these proceedings. On the day in question, Justin, Ms Willett's eight year old son, had spent the day out with the appellant and his two daughters. The appellant wished to speak to Ms Willett when he drove Justin back to Ms Willett's home. He maintained that, before returning Justin, he had telephoned Ms Willett to apologise for his being late and that Ms Willett had then agreed to his request that she should come outside and speak to him when he arrived at her home. His evidence was that, on his arrival, he parked his car on the roadway end of the driveway leading into the premises. Justin left the car and went inside the house. The appellant said that he…

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 Meeks v Kirkham

Details

AGLC: Meeks v Kirkham [2000] WASCA 94
Case: [2000] WASCA 94
Decision Date: 12 APRIL 2000

CaseChat Overview and Summary

In the case of Meeks v Kirkham, the plaintiff, Meeks, brought an action against the defendant, Kirkham, seeking damages for assault. The dispute centred around an incident where Kirkham, who was an employee of a company, removed Meeks from the company's premises. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether Kirkham had the authority to remove Meeks from the premises, as required by section 254 of the Criminal Code. Specifically, the court had to determine whether Kirkham was authorised by the occupier of the premises to perform the act of removing Meeks.

The court examined the evidence provided by Kirkham regarding the terms of his authority as given by the occupier. The trial judge had excluded this evidence, leading to a challenge on the adequacy of the established authority. The court had to consider whether the exclusion of this evidence was appropriate and whether it sufficiently established the necessary authority. The outcome hinged on whether Kirkham's authority was adequately demonstrated in the absence of the excluded evidence.

The Supreme Court of South Australia ruled that the exclusion of Kirkham's evidence concerning his authority was erroneous. This error meant that the authority to remove Meeks was not adequately established. Consequently, the court found that Kirkham did not have the necessary authority to remove Meeks from the premises, and the action for assault was upheld. The court ordered Kirkham to pay damages to Meeks for the assault, reflecting the importance of properly establishing the authority under which such actions are taken.

Orders