Roy v O'Neill - [2020] HCATrans 43

[2020] HCATrans 043

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D19 of 2019

B e t w e e n -
AILEEN ROY
Applicant
and
JULIE O’NEILL
Respondent
Application for special leave to appeal

BELL J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 MARCH 2020, AT 9.45 AM

MR P.R. BOULTEN, SC: If the Court pleases, I appear for the applicant. (instructed by North Australian Aboriginal Justice Agency)

MR T.J. MOSES: If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (NT))

BELL J: Yes, Mr Boulten.

MR BOULTEN: Your Honours, this application concerns some issues that relate to the scope of the implied licence to enter a person’s property and especially in the context of police powers. In the court below there was a decision which we criticise in the grounds of appeal with some quite specific contentions, but generally this is an issue that is going to become more and more of concern.

EDELMAN J: Mr Boulten, can I just ask you - I can appreciate from your submissions that there are courts across the world that are dealing with this issue and splitting as to the result and the manner in which it should be dealt with. One point that is not clear to me from your submissions is precisely what your answer is to these two questions. The first is whether you say the implied licence is to be determined objectively or subjectively, and the second is whether infringement of the implied licence is to be determined by reference to some objective characterisation of purpose or a subjective characterisation of purpose.

MR BOULTEN: It is an objective analysis of what the intention and action was, so if – we say there are a number of building blocks in determining the ultimate position. It is a matter of inference, so it is an objective qualitative assessment ‑ ‑ ‑

EDELMAN J: So the implied licence - when one determines what its scope is you look at the objective factors including signs that say “Trespassers Prohibited”, or whatever, but what about then the question of infringement of the implied licence, the reason why somebody might be present in the curtilage?

MR BOULTEN: Well, that is part of it. We say that at the heart of determining the scope is determining the true purpose of the entry.

EDELMAN J: No, one must be anterior to the other. Before one looks at the purposes of the entry you have to ask: what is the implied licence to permit?

MR BOULTEN: That involves an assessment of commonsense issues and as we have said the common behaviour of people in the community, what would be expected normally when a policeman comes to the door. In one respect there have been very clear statements that the infringement of private property by police officers is not necessarily dependent solely…

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 Roy v O'Neill

Details

AGLC: Roy v O'Neill [2020] HCATrans 43
Case: [2020] HCATrans 43
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Roy v O'Neill*. The dispute concerned the proper interpretation of section 101(1) of the *Civil Procedure Act 2010* (Vic) (the Act), which provides that a party to civil proceedings may be required to attend a compulsory conference. The appellant, Mr Roy, had been ordered to attend a compulsory conference by the County Court of Victoria, but he failed to do so. The respondent, Ms O'Neill, sought to have Mr Roy's defence struck out as a consequence of his non-attendance.

The central legal issue before the High Court was whether section 101(1) of the Act imposed a personal obligation on a party to attend a compulsory conference, or whether it merely conferred a power on the court to order attendance. This distinction was critical because if the obligation was personal, a failure to attend could lead to sanctions such as the striking out of pleadings. If it was merely a power, the court would need to consider the appropriate response to non-compliance.

The High Court held that section 101(1) of the Act imposes a personal obligation on a party to attend a compulsory conference when ordered to do so by the court. Their Honours reasoned that the language of the provision, particularly the phrase "may be required to attend," indicated a power vested in the court to impose a mandatory obligation. Furthermore, the purpose of compulsory conferences, as outlined in the Act, was to facilitate settlement and efficient dispute resolution, which would be undermined if parties could simply disregard attendance orders without consequence. The Court affirmed that the power to strike out a defence for non-compliance with such an order was a legitimate sanction available to the court under the Act.

Orders