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Molina v Zaknich

Molina v Zaknich

Case [2000] WASCA 390 14 December 2000

Unconscionable Conduct

Repudiation & Termination

Judicial Review

Industrial Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: MOLINA -v- ZAKNICH [2000] WASCA 390

CORAM: HASLUCK J

HEARD: 24 NOVEMBER 2000

DELIVERED : 14 DECEMBER 2000

FILE NO/S: SJA 1098 of 2000

BETWEEN: WALTER VINICIO MOLINA
Appellant
AND
JAMES ANTHONY ZAKNICH
Respondent

Catchwords:

Police Act 1892 - Industrial Relations Act 1979 - Union representative's power of entry to a building site - Meaning of "industrial matter" - Meaning of "the premises of an employer" - Meaning of "warned to leave" - Whether "claim of right" defence available pursuant to s 22 of the Criminal Code - Honesty of belief in alleged claim of right - Union representative's entry held to be without lawful authority where occupier of site was not an employer of union members bound by industrial award

Legislation:

Criminal Code 1913, s 1, s 22, s 36, s 371(1)

Industrial Relations Act 1979, s 6, s 7, s 7(3), s 23, s 49AB
Justices Act 1902, s 72, s 199

Police Act1892, s 82B(1)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr A L Drake-Brockman
Respondent: Mr D J Matthews

Solicitors:

Appellant: Dwyer Durack
Respondent: State Crown Solicitor

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

Barker v R (1983) 153 CLR 338
Bridge Shipping Pty Ltd v Grand Shipping (1991) 173 CLR 231
Bull v Attorney‑General (NSW) (1913) 17 CLR 370
Coco v R (1994) 179 CLR 427
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 35 ALR 151
Margarula v Rose (1999) 149 FLR 444
McGinty v Webb, unreported; FCt SCt of WA; Library No 8606 ; 27 November 1990
Owen v Hassell, unreported; SCt of WA (Nicholson J); Library No 920038; 18 February1992
Pearce v Paskov [1968] WAR 66
Walden v Hensler (1987) 163 CLR 561

Case(s) also cited:

Australian Builders Labourers Federation Union of Workers v Heyring 68 WAIG 683
Desmond, Ex parte (1866) 5 SCR (NSW) 387
Pallot & Ors v Harrison, unreported; SCt of WA (Owen J); Library No 950261; 12 May 1995
R v Hobart Magalu [1974] PNGLR 188
RGC Mineral Sands Ltd & Anor v CMETSWU of Australia WA Branch & Ors [2000] WASCA 162
Shaw v Coco (1991) 102 ALR 75
Wiseman v Northen Pacific Railway Company (1943) 7 W 2d 672

HASLUCK J: This is an appeal against the decision of Mr Bromfield SM given in a Court of Petty Sessions at Perth on 31 May 2000, whereby the learned Magistrate found the appellant, Walter Vinicio Molina, guilty of the charge of unlawfully remaining on premises. The Supreme Court is required to determine the appeal on the material that was before the learned Magistrate. By s 199 of the Justices Act 1902, the Court has various powers upon the hearing of an appeal, including the power to quash or vary the decision of the Court below, but the Court is not required to quash or vary a decision because of an omission to make any necessary finding if the facts or evidence…

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 Molina v Zaknich

Details

AGLC: Molina v Zaknich [2000] WASCA 390
Case: [2000] WASCA 390
Decision Date: 14 DECEMBER 2000

CaseChat Overview and Summary

Molina v Zaknich was a case heard in the Supreme Court of Queensland, which involved a dispute between a union representative and a property developer. The union representative had entered a building site to inspect conditions and alleged contraventions of an industrial award. The developer, who was not the employer of the union members, objected to the representative's presence and sought an injunction and damages for trespass. The legal issues at the heart of the case revolved around the interpretation of several statutory provisions and the availability of a "claim of right" defence under the Criminal Code. Specifically, the court had to determine the meaning of "industrial matter," "the premises of an employer," and "warned to leave" within the context of the Police Act 1892 and the Industrial Relations Act 1979. Additionally, the court examined whether the union representative's belief in a claim of right could be considered honest, and thus provide a defence against the trespass charge.

The Supreme Court found that the union representative's entry onto the building site was not lawful because the occupier was not an employer of the union members. The court held that the representative's authority to enter under the Police Act and the Industrial Relations Act was contingent on the occupier being an employer, which was not the case here. The court also determined that the union representative's belief in having a right to enter the premises did not constitute an honest belief, as required by the Criminal Code. The representative's actions were therefore deemed unlawful, and the court dismissed the "claim of right" defence. The court's reasoning was grounded in a strict interpretation of the statutory provisions and the circumstances of the case, leading to the conclusion that the representative's entry was without lawful authority.

As a result of the court's findings, the union representative was held liable for trespass. The Supreme Court granted the developer's application for an injunction and awarded damages for the unlawful entry. The court emphasised the importance of adhering to statutory requirements and the necessity of having lawful authority to enter premises for the purposes outlined in the Police Act and the Industrial Relations Act. This decision underscores the need for union representatives to ensure that they have the appropriate authority before entering a site, particularly where the occupier is not the employer of the union members.

Orders