Tallott v City of Stirling - [2017] WASCA 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TALLOTT -v- CITY OF STIRLING [2017] WASCA 126

CORAM: BUSS P
MURPHY JA
MITCHELL JA

HEARD: 23 MARCH 2017

DELIVERED : 13 JULY 2017

FILE NO/S: CACV 179 of 2015

BETWEEN: AARON PETER TALLOTT
Appellant
AND
CITY OF STIRLING
First Respondent
NEIL EMERY
Second Respondent
PHILLIP MITCHELL
Third Respondent
COLIN HANLEY
Fourth Respondent
PETER MITCHELL
Fifth Respondent
SEAN THOMSON
Sixth Respondent
ANDREAS KOLM
Seventh Respondent
COLIN McLEAN
Eighth Respondent

FILE NO/S :CACV 1 of 2016

BETWEEN :AARON PETER TALLOTT
Appellant
AND
CITY OF STIRLING
Respondent

FILE NO/S :CACV 2 of 2016

BETWEEN :AARON PETER TALLOTT
Appellant
AND
CITY OF STIRLING
First Respondent
HARRY WILKINS
Second Respondent
NEIL EMERY
Third Respondent
PHILLIP MITCHELL
Fourth Respondent
COLIN McLEAN
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :CHANEY J
Citation  :TALLOTT -v- CITY OF STIRLING [No 2] [2015] WASC 483
File No  :CIV 1324 of 2014, CIV 1220 of 2015, CIV 1266 of 2015

Catchwords:

Torts - False imprisonment - Misfeasance in public office - Trespass to goods - Conversion - Conspiracy to harm - Collateral abuse of process

Local law - Validity - Whether it has the characteristics of subsidiary legislation that has 'legislative effect' - Whether local law confers functions and powers - Scope of parent Act - Whether local law widens scope of parent Act - Issues of construction - Issues of standing - Scope of powers conferred on the local authority - Whether police acted as 'agent' for local authority - Power of police to enforce local law, issue move on notices and institute proceedings

Criminal Investigation Act 2006 (WA) - Section 27 move on order - Whether offence under local law could result in move on order - Whether principles regarding the issue of a move on notice were lawfully invoked - Whether appellant was in an area closed to the public under the local law - Police's power of arrest - Whether appellant was arrested for trespass - Whether there was lawful justification for the arrest

Malice - Whether any of the local authority's officers acted with malice - Whether any of the judge's findings of fact as to the absence of malice could properly be the subject of appellate intervention

Words and phrases - 'Obstruction' - 'Belong to'

Legislation:

Bush Fires Act 1954 (WA), s 25
Caravan Parks and Camping Grounds Act 1995 (WA), s 5, s 28, s 29
Caravan Parks and Camping Regulations 1997 (WA), reg 8A, reg 10, reg 11
City of Stirling Local Government Property Local Law 2009 (WA), cl 1.5, cl 1.6, cl 3.13, cl 3.14, cl 5.6, cl 8.1, cl 9.1, cl 9.2, cl 10.3, cl 10.4
City of Stirling Thoroughfare and Public Places Local Law 2009 (WA), cl 4.1, cl 4.3
Constitution Act 1889 (WA), s 52, s 53
Criminal Code (WA), s 1, s 22, s 70A
Criminal Investigation Act 2006 (WA), s 3, s 4, s 27, s 127, s 128, s 153
Interpretation Act 1984 (WA), s 5
Land Administration Act 1997 (WA), s 3, s 7, s 13, s 41, s 46
Local Government (Functions and General) Regulations 1996 (WA), reg 29, reg 35
Local Government Act 1995 (WA), s 2.5, s 3.1, s 3.2, s 3.4, s 3.5, s 3.7, s 3.10, s 3.37, s 3.39, s 3.40, s 9.1, s 9.10 - s 9.13, s 9.15 - s 9.22, s 9.24, s 9.56
Rules of the Supreme Court 1971 (WA), O 58 r 13

Result:

Appeals dismissed

Category: B

Representation:

CACV 179 of 2015

Counsel:

Appellant:     In person
First Respondent           :     Mr M Jones & Mr A Sharpe
Second Respondent      :     Mr M Jones & Mr A Sharpe
Third Respondent          :     Mr M Jones & Mr A Sharpe
Fourth Respondent        :     Mr M Jones & Mr A Sharpe
Fifth Respondent           :     Mr M Jones & Mr A Sharpe
Sixth Respondent          :     Mr M Jones & Mr A Sharpe
Seventh Respondent      :     Mr M Jones & Mr A Sharpe
Eighth Respondent        :     Mr M Jones & Mr A Sharpe

Solicitors:

Appellant:     In person
First Respondent           :     Sparke Helmore
Second Respondent      :     Sparke Helmore
Third Respondent          :     Sparke Helmore
Fourth Respondent        :     Sparke Helmore
Fifth Respondent           :     Sparke Helmore
Sixth Respondent          :     Sparke Helmore
Seventh Respondent      :     Sparke Helmore
Eighth Respondent        :     Sparke Helmore

CACV 1 of 2016

Counsel:

Appellant: In person
Respondent: Mr M Jones & Mr A Sharpe

Solicitors:

Appellant: In person
Respondent: Sparke Helmore

CACV 2 of 2016

Counsel:

Appellant:     In person
First Respondent           :     Mr M Jones & Mr A Sharpe
Second Respondent      :     Mr M Jones & Mr A Sharpe
Third Respondent          :     Mr M Jones & Mr A Sharpe
Fourth Respondent        :     Mr M Jones & Mr A Sharpe
Fifth Respondent           :     Mr M Jones & Mr A Sharpe

Solicitors:

Appellant:     In person
First Respondent           :     Sparke Helmore
Second Respondent      :     Sparke Helmore
Third Respondent          :     Sparke Helmore
Fourth Respondent        :     Sparke Helmore
Fifth Respondent           :     Sparke Helmore

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

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167
Australian Wool Innovation Ltd v Newkirk [2005] FCA 290
Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299
Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134
Fly by Night Musicians Club Limited v City of Fremantle [2004] WASCA 161
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133
Hughes & Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127
Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251
Leerdam v Noori [2009] NSWCA 90
Lynch v Brisbane City Council [1961] HCA 19; (1961) 104 CLR 353
MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34
Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Myer Stores Ltd v Soo [1991] 2 VR 597
Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Shire of Tungamah v Merrett [1912] HCA 63; (1912) 15 CLR 407
Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746
Tallott v City of Stirling [No 2] [2015] WASC 483
The Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58
Varawa v Howard Smith Company Ltd [1911] HCA 46; (1911) 13 CLR 35
Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433
Widgee Shire Council v Bonney [1907] HCA 11; (1907) 4 CLR 977
Table of Contents

Background

General overview
The O 58 r 11 proceedings and the judge's findings

The incidents in question - the judge's findings

Incident one - 13 May 2011 - arrest following move on notice
Incident two - 14 November 2011 - removal of vehicle
Incident three - 15 November 2011 - arrest following move on notice for 'failure to obtain a permit to camp'
Incident four - 19 April 2012 - removal of items from cave
Incident six - 21 October 2013 - removal from dunes area to nearby grassed area
Incident seven - 21 July 2014 - move on notice in relation to fire outside cave

Appeals
Grounds of appeal and submissions in CACV 179 of 2015 - the first, second, third, fourth and sixth incidents

Incident one - 13 May 2011
Incident two - 14 November 2011
Incident three - 15 November 2011
Incident four - 19 April 2012
Incident six - 21 October 2013
Other grounds

Notice of contention in CACV 179 of 2015 - in respect of the second, fourth and sixth incidents

Incident six
Incidents two and four

Grounds of appeal and submissions in CACV 1 of 2016 - the appeal in relation to the O 58 r 11 proceedings

Submissions in CACV 1 of 2016 - O 58 r 11 proceedings

Grounds of appeal and submissions in CACV 2 of 2016 - seventh incident

Grounds of appeal
Submissions in CACV 2 of 2016

Legislation

Police may issue move on orders - Criminal Investigation Act 2006 (WA) (CI Act)
Police's powers of arrest - CI Act
Local Government Act 1995 (WA)
Caravan Parks and Camping Grounds Act 1995 (WA) (Camping Act)
Caravan Parks and Camping Grounds Regulations 1997 (WA)
Local Law

The Land Administration Act - 'management body'
City of Stirling Thoroughfare and Public Places Local Law 2009 WA
Impounding - the LocalGovernment (Functions and General) Regulations 1996 (WA)
Trespass - s 70A of the Criminal Code (WA)
Ignorance of law - honest claim of right - Criminal Code

The Constitution Act 1889 (WA)
Bush Fires Act 1954 (WA)

Disposition - appeal in respect of O 58 r 11 proceedings

Disposition - appeal in respect of seventh incident

Seventh incident

Disposition - appeal in respect of incidents one to four and six

Incident one
Incident two
Incident three
Incident four
Grounds 12 and 13
Incident six and the notice of contention

Conclusion

REASONS OF THE COURT:

These reasons deal with three appeals from the decision of Chaney J in Tallott v City of Stirling [No 2][1] (primary decision). That decision concerned three separate actions in proceedings commenced by the appellant, Mr Tallott. Each proceeding effectively concerned Mr Tallott's activities in connection with his desire to sleep in the general area of Scarborough and Trigg beaches, and his interactions with the relevant local authority, the City of Stirling (City), in the period May 2011 to July 2014.
[1] Tallott v City of Stirling [No 2] [2015] WASC 483.
The first proceeding, CIV 1324 of 2014 (CIV 1324), involved allegations of the commission of various torts by officers of the City in relation to six specific incidents involving Mr Tallott. The second proceeding, CIV 1266 of 2015 (CIV 1266), similarly involved allegations of the commission of various torts by officers of the City in relation to a seventh incident involving Mr Tallott. These actions were heard together due to an overlap of issues. The third proceeding, CIV 1220 of 2015, involved a claim by Mr Tallott for relief pursuant to O 58 r 11 of the Rules of the Supreme Court 1971 (WA) (Rules) for a determination as to the validity of the City of Stirling Local Government Property Local Law 2009 (Local Law). With the consent of the parties, that matter (which will be referred to as the O 58 r 11 proceedings) was dealt with at the same time as the other two actions on the basis that the validity of the Local Law was relevant to the bases upon which actions were taken by the City's officers in relation to at least some of the incidents the subject of the other two proceedings.
Justice Chaney dismissed all three actions in the primary decision.
Mr Tallott's submissions in these appeals traverse a variety of statutes and other written laws. The provisions of the principal instruments are collected and set out in [128] ‑ [176] of these reasons.
For the reasons which follow, Mr Tallott's appeals against the primary decision should be dismissed.

Background

General overview

Since at least January 2011, Mr Tallott has wanted the freedom to stay and sleep in the general area of Scarborough and Trigg beaches. Those areas are within the City. The City, through its officers, tried to prevent Mr Tallott from doing so on several occasions, on the basis that Mr Tallott was breaching various local laws. The City eventually involved the police, who issued Mr Tallott with move on notices. Mr Tallott, however, breached those notices, and was subsequently arrested and imprisoned.[2]
[2] Primary decision [1].
The relationship between the City and Mr Tallott continued to deteriorate. This ultimately led Mr Tallott to institute the above proceedings against the City and its officers (also collectively, where the context requires, the City).
As noted above, the first two sets of proceedings related to seven incidents involving Mr Tallott. CIV 1324 involved the first six incidents. Mr Tallott pleaded specific causes of action in relation to each incident. The causes of action included false imprisonment, misfeasance in public office, trespass to goods, conversion, and 'combination', which was a reference to the tort of conspiracy to harm. Mr Tallott claimed damages in relation to each incident, and relief by way of injunction to prevent the City from engaging in similar conduct in the future.[3] CIV 1266 related to a seventh incident. The causes of action relied on were 'collateral abuse of process', misfeasance in public office and false imprisonment.[4]
[3] Primary decision [2].
[4] Primary decision [3].
It will be necessary to set out his Honour's findings in respect of each of these incidents in order to provide context to the present appeals. Before doing so, however, it is convenient to outline the issues and the judge's findings in respect of the O 58 r 11 proceedings.

The O 58 r 11 proceedings and the judge's findings

Mr Tallott sought relief pursuant to O 58 r 11 of the Rules for a determination as to the validity of the Local Law. Order 58 r 11 of the Rules provides:
11.Construction or validity of legislation
(1)Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute, or of a regulation, rule, by-law or instrument made or purporting to be made under a statute, or of the validity of any such regulation, rule, by-law, or instrument, may apply by originating summons for the determination of such question of construction or validity, and for a declaration as to the right claimed.
(2)This rule is subject to any special statutory provision for the determination of any such matters.
In defence of the proceedings, the City alleged that Mr Tallott had not satisfied the prerequisite to an application under O 58 r 11 because he failed to identify any disputed right which would be vindicated by determining the invalidity of the impugned local law. The City accordingly contended that Mr Tallott lacked standing to challenge the Local Law, and said that if he did have standing, his arguments as to invalidity should, in any event, be rejected.[5]
[5] Primary decision [29].
Mr Tallott's contention in relation to this claim appears to have been that the whole, or at least certain parts, of the Local Law should be declared invalid on the basis that its provisions go outside the powers to make local laws conferred by the Local Government Act 1995 (WA). He also pleaded that cl 3.14 of the Local Law is inconsistent with the Caravan Parks and Camping Grounds Act 1995 (WA) (Camping Act), and is therefore invalid on that basis.[6]
[6] Primary decision [30].
Having regard to the issues in the other proceedings, and to the fact that Mr Tallott was self‑represented with no legal qualifications, the judge said that it was appropriate to deal with Mr Tallott's contentions in the O 58 r 11 proceedings, insofar as they involved allegations of invalidity of certain provisions of the Local Law which were of relevance to the other proceedings. His Honour said that those provisions were cl 3.14, cl 9.1 and cl 9.2 of the Local Law.[7]
[7] Primary decision [35], [37].
Clause 3.14 of the Local Law, in general terms, relates to camping without a permit. Clause 9.1 and cl 9.2 relate to the authority of persons authorised by the City to give directions to leave local government property.
The judge found that cl 3.14 is a local law which regulates camping within the municipality. He said that the power to make that local law is found in s 29 of the Camping Act, or alternatively, would exist under s 3.5 of the Local Government Act, and that cl 3.14 of the Local Law is valid.[8] In so finding, his Honour rejected Mr Tallott's contention that, in reliance on Swan Hill Corporation v Bradbury,[9] cl 3.14 of the Local Law amounted to a prohibition on camping and thus exceeded the power to regulate camping.
[8] Primary decision [42] - [46].
[9] Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746.
Mr Tallott pleaded that cl 9.1 and cl 9.2 were beyond power because 'they confer a power or a duty inconsistent with the power delegated under s 9.10' of the Local Government Act. The judge rejected that submission. His Honour said that s 9.10 enables the local government to 'appoint persons or classes of persons to be authorised for the purposes of performing particular functions', and there is nothing inconsistent between that provision and cl 9.1 and cl 9.2.[10]
[10] Primary decision [47]. There appears to be a typographical error where his Honour refers to s '9.1' rather than s '9.10'.

The incidents in question - the judge's findings

The judge's findings in relation to the relevant incidents are set out below. As there is no appeal in relation to incident five it is unnecessary to set out the judge's findings in relation to that incident.

Incident one[11] 13 May 2011 - arrest following move on notice -

[11] CIV 1324.

On the morning of 13 May 2011, Mr Tallott was observed by Mr Phillip Mitchell (Mr Mitchell), a security patrol officer employed by the City, cutting down branches from a Norfolk Island tree. Mr Mitchell reported the matter to his superiors and prepared a written report, but otherwise took no further action.[12]
[12] Primary decision [53], [66(i) ‑ (ii)].
Later in the day, persons were observed by Mr Clark (a resident of Scarborough) sitting around a fire at the northern end of the car park at Scarborough Beach. After returning home, Mr Clark reported what he had seen to Mr Emery (a security team leader employed by the City). Mr Emery arranged, with another security officer, to attend the car park area. When they arrived, they did not observe any fire, but did observe a group of people drinking alcohol in the public area of the car park. They notified the police in relation to the people drinking alcohol, and two police officers attended the car park. Relevantly, the police were not notified because of anything that Mr Tallott was then doing.[13]
[13] Primary decision [57], [62] - [63], [66(iii) ‑ (vii)].
Upon their arrival, Mr Tallott, who was evidently located nearby, engaged the police officers in an aggressive manner. The police officers issued him with a move on notice. Mr Tallott, however, refused to comply with the move on notice and was arrested on that basis. His arrest did not result from any false information provided by the City. The police officers formed their own opinion as to whether they reasonably suspected Mr Tallott of camping and as to whether a fire had been lit.[14]
[14] Primary decision [66(viii) - (x)].
There was no evidence of any agreement by any City officers to do any unlawful act or use any unlawful means to harm Mr Tallott, nor was there any evidence that the City had any intention to cause injury or harm by causing Mr Tallott's arrest. In these circumstances, Mr Tallott's claim based on combination was not established, and was dismissed.[15]
[15] Primary decision [67].
Further, a claim for false imprisonment against the City officers could not succeed. This was not a case where the police acted on any false information presented to them which caused them to wrongfully arrest a person. The only evidence was that the police were informed that there had been difficulties with Mr Tallott earlier in the day when he caused damage to trees.[16]

Incident two[17] - 14 November 2011 - removal of vehicle

[16] Primary decision [68].

[17] CIV 1324.

Mr Tallott said that he lived in his van within the vicinity of the northern end of Scarborough Beach car park from about January 2011 to November 2011.[18] He gave the following relevant account of events, which appears to have been accepted by the primary judge or at least is not in dispute.
[18] Primary decision [70].

On 10 November 2011, Mr Tallott received a letter which read, relevantly:[19]
Dear Sir/Madam
Abandoned vehicle
Please be advised that in accordance with the City's Thoroughfares and Public Places Local Law 2009 section 4.1 and section 4.3 that if this vehicle is not removed within 24 hours then the City intends to impound the vehicle.
Should you have any enquiries in relation to this please contact the City on [a specified phone number]. You are also advised that it is also an offence to camp outside a designated camping ground in accordance with Local Government Property Law 2009 section 3.14.
I trust you understand the City's position in this matter and your co‑operation would be appreciated.
[19] Primary decision [72].
On 13 November 2011, Mr Tallott jacked up the van and placed logs and other things under its wheels.[20]
[20] Primary decision [71].
On 14 November 2011, Mr Tallott left the van and went to university. When he returned he found that the vehicle had been removed.[21]
[21] Primary decision [71].
Mr Hanley (a senior community ranger) gave evidence that he had engaged a contractor to remove the vehicle. Once the vehicle was towed away, he placed a letter to Mr Tallott under a log or rock near to where the vehicle had been parked. The letter advised of the City's intention to impound the vehicle under cl 4.1 and cl 4.3 of the City of Stirling Thoroughfare and Public Places Local Law 2009 (WA) and s 3.39 and s 3.40 of the Local Government Act. Reference was made to the letter of 10 November 2011 requesting the vehicle be moved within 24 hours, and the letter advised that the vehicle was being removed to a specified location in Kewdale and could be reclaimed on payment of fees and proof of ownership being supplied.[22]
[22] Primary decision [74].
Mr Hanley said that, after the vehicle had been towed away, two of the City's rangers went to the holding yard and removed personal belongings contained in the vehicle. Those items were taken to the City's administration building for storage.[23]
[23] Primary decision [75].
On 15 November 2011, Mr Tallott was arrested in circumstances that comprise incident three, discussed below. He was held in custody for approximately six weeks.[24]
[24] Primary decision [73].
Mr Tallott eventually attended the City's offices and reclaimed the goods that had been removed from his vehicle.[25] According to Mr Hanley, a week or so later, Mr Tallott contacted him to enquire as to the vehicle's whereabouts. Mr Hanley told Mr Tallott that the vehicle could be collected, and that he would need proof of ownership and to pay towing fees. In his written statement, Mr Hanley said that he thought the vehicle had been crushed after the two‑month period in which it had not been collected, but in his oral evidence he said that he had since ascertained that the vehicle had been sold at auction.[26]
[25] Primary decision [75].
[26] Primary decision [76].
Mr Tallott sought damages for loss of the vehicle on the basis of trespass to goods, detinue and conversion.[27] The City pleaded, in effect, that they were authorised under the provisions of s 3.39 of the Local Government Act to remove the vehicle, and that Mr Tallott was in breach of various other local laws, including cl 3.14(3)(c) of the Local Law. Mr Peter Mitchell (another security officer), who evidently authorised the sale of the vehicle, pleaded that he was entitled to do so after a two month period pursuant to s 3.47(2) of the Local Government Act.[28]
[27] Primary decision [77].
[28] Primary decision [77], [86], [107].
The primary judge observed that s 3.37 of the Local Government Act provides that regulations may prescribe any contravention of a regulation or local law made under the Local Government Act to be a contravention that can lead to impounding.[29] By s 3.39 of the Local Government Act, an employee authorised by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding, and a person may use reasonable force to exercise that power.[30] The Local Government (Functions and General) Regulations 1996 (WA) prescribes contraventions that can lead to impounding for the purposes of s 3.37 of the Local Government Act,[31] including, relevantly, reg 29(1) which provides for the impounding of goods involved in the contravention of a local law if it occurs in a public place and, relevantly, the presence of the goods obstructs the lawful use of any place.
[29] Primary decision [78].
[30] Primary decision [79].
[31] Primary decision [83].
Having regard to these provisions, the primary judge found that Mr Hanley was properly authorised to impound goods pursuant to s 3.39 of the Local Government Act.[32]
[32] Primary decision [87].
In response to the contention that the vehicle was lawfully impounded, Mr Tallott contended that his vehicle did not obstruct the lawful use of the place where it was parked. The judge rejected this, and found that Mr Tallott's vehicle was obstructing a part of a public place and City property, and was obstructing the lawful use of that place.[33]
[33] Primary decision [88], [92].
The judge concluded that the City was entitled to dispose of the vehicle when it was not collected within a two month period. His Honour said that the vehicle's removal, impounding and ultimate disposal were all justified by law.[34]

Incident three[35] - 15 November 2011 - arrest following move on notice for 'failure to obtain a permit to camp'

[34] Primary decision [95].

[35] CIV 1324.

On 15 November 2011, Mr Tallott retrieved his swag from his locker at university and went to Scarborough Beach at 2.00 pm or 3.00 pm. He walked up an unfenced hill in the sand dunes, unrolled his swag and set the hood up to break the wind. He was in possession of a baby lorikeet that had been given to him by some friends to look after.[36]
[36] Primary decision [97], [105].
Mr Tallott noticed Mr Thomson and Mr Kolm (beach inspectors employed by the City) observing him. He said that Mr Kolm approached him and told him the area was a no camping area and that he was required to leave. Mr Tallott told Mr Kolm to go away, and Mr Kolm responded that he was going to call the police to have Mr Tallott removed.[37]
[37] Primary decision [98].
Mr Tallott said that two police officers, namely Senior Constable Hannon and Constable Noonan (a probationary constable), then attended the scene. Mr Emery, Mr Thomson, Mr Peter Mitchell, Mr Wilkins and a number of other City officers were also present.[38]
[38] Primary decision [99], [108]
Constable Noonan issued a move on notice for 'failure to obtain a permit to camp outside a facility'.[39] In his evidence, Mr Tallott said that when he did not comply with the notice, the police officers arrested him and escorted him back to their police van.[40] The primary judge, however, found that Mr Tallott was not arrested for initially failing to comply with the move on notice, but was escorted from the location by the police officers.[41] At Mr Tallott's request, the police officers then drove him to a nearby address in Scarborough to leave the lorikeet with the friends who had initially given it to him. When they arrived at the address, Mr Tallott said that the police removed his possessions from the vehicle and told him that he was 'unarrested' and had complied with the move on notice. The police told him that if he returned to the beach area he would be arrested again.[42]
[39] Primary decision [99], [100].
[40] Primary decision [99].
[41] Primary decision [112].
[42] Primary decision [99], [109]
Mr Tallott said that he then returned to the beach, telephoned the police and told them that they should come and re‑arrest him. The police did so, and Mr Tallott said that he was remanded in custody for about six weeks as a result of the arrest. It appears that Mr Tallott remained in custody because of a refusal to accept a condition of bail that he not return to the Scarborough Beach area until the end of the trial proceedings.[43]
[43] Primary decision [100] ‑ [101], [115].
On 22 February 2012, the charge brought against Mr Tallott for failure to comply with the move on notice was discontinued.[44]
[44] Primary decision [102].
Mr Tallott alleged two causes of action in relation to this incident, being combination and false imprisonment. The primary judge said that neither was made out.[45]
[45] Primary decision [111].
His Honour said that there was no basis for holding the City liable for false imprisonment by knowingly giving false information to police which led to a wrongful arrest. Rather, a move on notice was issued pursuant to s 27 of the Criminal Investigation Act 2006 (WA) (CI Act) in circumstances where police officers reasonably suspected Mr Tallott intended to commit an offence against cl 3.14 of the Local Law by camping on local government property. Having witnessed Mr Tallott's swag and hood in the dune area, the police officers were in a position to form a reasonable suspicion sufficient to issue the move on notice, and nothing the City's officers told the police was false.[46]
[46] Primary decision [112] ‑ [113].
In relation to the claim for combination, there was no evidence of any agreement between the City's officers to do any unlawful act or to do any act by unlawful means. Nor was there any evidence of any intention on the part of the City's officers to injure Mr Tallott.[47]
[47] Primary decision [114].
Finally, in relation to incident three, the primary judge said that the question of whether the hill fell within a conservation area or was an area set aside for recreation, and whether it mattered that it was not fenced off, was, in effect, irrelevant. He also said that questions of the authority of various City officers to exercise powers under the Camping Act was irrelevant.[48]

Incident four[49] - 19 April 2012 - removal of items from cave

[48] Primary decision [116] ‑ [117].

[49] CIV 1324.

On 18 April 2012, Mr Tallott slept in a cave on Trigg Island. The next day, he left his possessions unattended in the cave and went to university. The cave is on land under the care and control of the City.[50]
[50] Primary decision [119], [122(i)], [122(vii)].
On 19 April 2012, after receiving a report that someone had been camping in the cave, Mr Thomson, a City officer, attended the cave and noticed various unattended items. He did not know who the items belonged to. They were therefore removed and taken to the Scarborough police station.[51]
[51] Primary decision [120], [122(ii) ‑ (vi)].
Mr Tallott subsequently collected his goods from the police station and suffered no loss by their removal.[52]
[52] Primary decision [122(viii)].
Mr Tallott alleged three causes of action in relation to this incident, being misfeasance in public office, trespass to goods and combination to cause harm. The primary judge found that none of these causes of action were made out.[53]
[53] Primary decision [123] ‑ [125].
With respect to the claim for misfeasance in public office, the judge said that Mr Thomson was acting in the ordinary course of his duties, and without malice. Given that the goods were found, apparently abandoned, on land for which the City had responsibility and was in possession, the active removal of the goods to a safe and secure position was not invalid or unauthorised.[54]
[54] Primary decision [123].
In relation to the claim for trespass to goods, the judge found that, while Mr Tallott may have had a right to possession, at the time when the goods were removed they were apparently abandoned on land over which the City exercised control, and it was therefore effectively in possession of the goods. It did not interfere with Mr Tallott's right to possession of the goods as owner, which he subsequently exercised by recovering the goods from the police station.[55]
[55] Primary decision [124].
Finally, in relation to the claim of combination to cause harm, there was no evidence of any agreement between Mr Thomson and anyone else and, in any event, Mr Thomson was not acting in any way unlawfully by removing the items to the local police station where they could be collected by their rightful owner.[56]

Incident six[57] - 21 October 2013 - removal from dunes area to nearby grassed area

[56] Primary decision [125].

[57] CIV 1324.

On 21 October 2013,[58] Mr Tallott found a discarded pole, erected it on a hill in the dunes area of Scarborough Beach (being the scene of incident three) and began painting it.[59] Various City officers, including Mr Emery and Mr Mitchell were gathered at a nearby car park.[60] Then, according to Mr Tallott's evidence which the judge evidently accepted at this point, Mr Tallott 'decided it was time to get dressed for the occasion, put on his sarong and sashes … raised a flag on the pole and "stood at the apex waiting for the [security officers] to attack"'.[61]
[58] Primary decision [134].
[59] Primary decision [133], [135] read with [97].
[60] Primary decision [133], [135], [136].
[61] Primary decision [133].
Mr Mitchell's evidence, which the judge evidently accepted, was that he formed the view that Mr Tallott was acting wrongfully by erecting a structure, and also by being on a dune conservation area overseen by the City, but he thought there was 'no good' in the City's officers 'going up and causing a confrontation'.[62] Police officers, including Senior Constable Robinson,[63] were called by either Mr Mitchell or his colleague, Mr Kolm.[64] The police officers initially went up to the top of the hill, and subsequently Officer Robinson called Mr Mitchell to the top of the hill.[65] The judge referred to the following evidence of Mr Mitchell, which the judge evidently accepted:[66]
[S]ubsequently Officer Robinson called Mr Mitchell to the top of the hill. He said that Mr Tallott confronted him [Mr Mitchell] by moving towards him until their chests touched. The police told Mr Tallott 'to back off'. They then asked Mr Mitchell to ask Mr Tallott to leave, which Mr Mitchell did by saying something to the effect 'you know you're not supposed to be in the conservation area, I'm asking you to leave'. He said that reference was made to the relevant local government law, which was cl 5.6 of the [Local Law]. He said that Mr Tallott requested that he be issued with a fine. The police then said that as Mr Tallott had been asked by the City's officer to leave, he should leave. Mr Tallott refused, and the police told him that they would give him a move on order but that the move on order pad was in their vehicle. Mr Mitchell said that the police then had Mr Tallott accompany them back to the police vehicle in order to give him a move on notice. He said there was discussion between the police and Mr Tallott about whether or not Mr Tallott, who had brought the pole with him from the hill, could take it with him. Mr Mitchell said that he then decided he and Mr Kolm should leave the area rather than inflame the situation. He said that they then left the matter in the hands of the police. They removed themselves to another car park and observed what was going on from that location. They saw a second police vehicle arrive, but then both vehicles left, with Mr Tallott still sitting on the grass with his pole. (emphasis added)
[62] Primary decision [135] - [136].
[63] Primary decision [136], [139].
[64] Primary decision [136].
[65] Primary decision [136].
[66] Primary decision [136].
The primary judge, after referring to the evidence of the witnesses (including the limited recollections given by Mr Kolm and Senior Constable Robinson), said that the only substantial issue of fact in relation to this incident was whether Mr Tallott was arrested for a brief period during which he was accompanied from the hill to the nearby car park area (ie, the grassed area), or whether he simply accompanied the police at their request to enable them to retrieve their move on order book from their vehicle so as to serve Mr Tallott with a move on order.[67] In relation to this issue, having regard to the evidence, including a video of the incident, the primary judge found that Mr Tallott was not arrested while on the hill and whilst he accompanied the officers to the grassed area.[68]
[67] Primary decision [140].
[68] Primary decision [142].
Mr Tallott alleged two causes of action in relation to this incident, being misfeasance in public office and false imprisonment. The primary judge found that neither of these were made out.[69]
[69] Primary decision [143], [148].
The claim for false imprisonment could not be sustained having regard to the fact that Mr Tallott was not arrested, but was merely required to leave the hill on the basis that he was in a dune conservation area.[70]
[70] Primary decision [143].
In relation to the claim for misfeasance in public office, Mr Tallott contended that because the hill was not closed to the public by a sign or otherwise, he was not, to the knowledge of the City, contravening cl 5.6 of the Local Law.[71] In this regard, the judge found, in effect, that it did not matter that the area was not completely fenced off. He found that the whole of the dune area, including that part in which the hill is located, was effectively closed to the public by signs. The judge said:[72]
Clause 5.6 [of the Local Law] refers to property which 'has been fenced off or closed to the public by a sign or otherwise'. The prohibition is not, therefore, confined to areas which are fenced off. It is sufficient if they are closed to the public by a sign. I find that the whole of the dune area, including that part in which the hill is located, was effectively closed to the public by signs. The evidence establishes that there were multiple signs along the edges of the dune area denoting the area a dune conservation zone and exhorting the public to use the tracks provided for the purpose of gaining access to the beach area. Mr Tallott placed some reliance on the use of the expression 'please use beach access paths provided' as suggesting that access was not prohibited, but simply that the public was requested to choose to use the paths provided. I do not accept that contention. The fact that the word 'please' is used in most (although not all) of the signs does not detract from an ordinary reading of the signs as a whole as meaning that access to the dunes was not permitted. In my view, the area in which the hill was located was an area which was effectively closed to the public by signs. (emphasis added)
[71] Primary decision [144].
[72] Primary decision[145].
The judge found that the view formed by Mr Mitchell, that Mr Tallott was in breach of cl 5.6 of the Local Law, and which Mr Mitchell conveyed to the police, was well‑founded.[73]
[73] Primary decision [145].
Mr Tallott also contended that the City could not exclude the public from dunes reserved for the purpose of recreation where no separate purpose of dune conservation was prescribed. This submission appears to have been made on the basis that the hill is located in Reserve 12992, which is the subject of Management Order H539211 by which the Minister for Land ordered that the reserve be under the care, control and management of the City to be used for the purpose of 'Recreation'. The primary judge, however, rejected Mr Tallott's submission, and noted that the preservation of the environment and physical form of the area are clearly relevant considerations in relation to the enhancement and maintenance of the land for recreational purposes.[74]

Incident seven[75] - 21 July 2014 - move on notice in relation to fire outside cave

[74] Primary decision [146] ‑ [147].

[75] CIV 1266.

On 21 July 2014, Mr Tallott had been sleeping in a cave at Trigg Island. There was a fire at or near the cave.[76]
[76] Primary decision [161].
The judge found:[77]
[77] Primary decision [161] ‑ [162].
There is no significant difference in the factual accounts provided by each of the witnesses to the events of 21 July 2014. What emerges from those accounts is the following.
(i)There were reasonable grounds to suspect that Mr Tallott was acting contrary to cl 3.13(j) of the [Local Law] by lighting a fire on local government property in a place other than a facility provided for that purpose, and in breach of cl 3.14 of the [Local Law] by camping without a permit on local government property.
(ii)Mr Wilkins, who was authorised to perform the functions of an authorised person under the City of Stirling local laws, gave a direction to Mr Tallott to extinguish the fire which Mr Tallott declined to comply with.
(iii)Mr Tallott spoke aggressively to the City's officers when they confronted him in relation to the fire.
(iv)Mr Wilkins telephoned the police for assistance because Mr Tallott was refusing to comply with his directions.
(v)After initially speaking to Mr Tallott, the police officers returned to the car park for the purpose of determining what action they proposed to take.
(vi)Mr Emery showed the police officers the [Local Law]. Although no witness was able to identify precisely which provisions of the [Local Law] were shown to the police officers, it is reasonable to conclude that the provisions shown to them were cl 3.13(1)(j) dealing with the prohibition on lighting fires, cl 3.14 dealing with camping outside facilities, and cl 9.1 and cl 9.2 dealing with directions of authorised officers.
(vii)The police officers had a reasonable basis to conclude that Mr Tallott was committing an offence against the [Local Law] sufficient to justify them issuing a move on order, and they formed that view by themselves reviewing the [Local Law] and after having spoken to Mr Tallott about his activities.
I accept that, as the video records, the reason given by the police officers to Mr Tallott for the issue of the move on order was that he was trespassing. As noted above, Constable Rees explained that by saying that he looked at the bylaws and concluded that 'once an offence had been committed', Mr Tallott could be told to leave the area and if he refused to leave then he was trespassing. That view is consistent with s 70A of the Criminal Code, which defines trespass on a place as including being in a place without the consent of the person having control or management of the place, or remaining in a place after being requested by a person in authority to leave the place. A person in authority is a person having control or management of the place or a police officer acting on a request of such a person. A person who trespasses in that way, without lawful excuse, commits an offence. I am satisfied that the police officers requested Mr Tallott to leave the area, and did so on the request of the City's officers who were authorised under the [Local Law] to direct Mr Tallott to leave the beach area which is under the care and control of the City. There was a reasonable basis upon which the police officers could reasonably suspect Mr Tallott of committing the offence of trespass.

The judge accepted that the police officers had acted on the request of the City, but nevertheless found that:[78]
(a)the City's officers did not give any false information to the police officers, and the information they conveyed was true;
(b)the police officers made their own assessment of the information and, on that basis, decided to serve a move on order;
(c)Mr Tallott's refusal to comply with the move on order led to his arrest; and
(d)there was no basis for concluding that the City acted with malice.
[78] Primary decision [163].
Mr Tallott alleged three causes of action in relation to this incident, being collateral abuse of process, misfeasance in public office and false imprisonment. The primary judge found that none of these claims were made out.[79]
[79] Primary decision [164].
Collateral abuse of process was not made out because neither the City nor the City's officers were parties to any court process. Further, there was no evidence of any court process resulting from the events of 21 July 2014.[80]
[80] Primary decision [165].
The claim in relation to misfeasance in public office failed due to the absence of any finding of malice on the part of the City's officers or any invalid or unauthorised acts on their part.[81]
[81] Primary decision [166].
Finally, the claim for false imprisonment failed by reason of the fact that no false information was provided by the City's officers to the police, and Mr Tallott's detention was based upon his refusal to comply with a move on order.[82]
[82] Primary decision [167].

Appeals

Mr Tallott appealed the primary decision by amended appeal notices dated 4 January 2016, and commenced separate appeals in respect of each of the primary proceedings as follows:
1.Appeal CACV 179 of 2015 is in respect of CIV 1324. The appeal involves, principally, allegations of tort in respect of the first, second, third, fourth and sixth incidents.
2.Appeal CACV 1 of 2016 is in respect of the O 58 r 11 proceedings.
3.Appeal CACV 2 of 2016 is in respect of CIV 1266. The appeal is in relation to the allegations of tort against the City in respect of incident seven.
Mr Tallott filed separate appellant's cases in respect of each of the above appeals. A notice of contention was filed by the respondents in CACV 179 of 2015 in relation to incidents two, four and six.

Grounds of appeal and submissions in CACV 179 of 2015 - the first, second, third, fourth and sixth incidents

Mr Tallott's appellant's case in CACV 179 of 2015 contains 13 grounds of appeal. The grounds of appeal are largely grouped by reference to the particular incident to which they relate. Mr Tallott's submissions in CACV 179 of 2015 are similarly grouped by reference to the particular incident to which they relate. They also appear to correspond, by paragraph number, to particular grounds of appeal. The submissions are, generally speaking, largely overlapping with one another and feed into different grounds of appeal. It is therefore convenient to adopt Mr Tallott's approach and deal with them in relation to each particular incident to which they relate, rather than isolate them by reference to specific grounds of appeal.

Incident one - 13 May 2011

In relation to incident one, Mr Tallott advanced four grounds of appeal to the following effect (grounds 1 to 4):
1.The judge erred in his findings at [66] of the primary decision.
2.The judge made an error of fact at [68] of the primary decision, where he found that the police were only informed of the damage to trees and did not act on any false information.
3.The judge erred in law in finding that 'camping' was an offence and that the 'offences' were able to be dealt with under s 27 of the CI Act.
4.The judge made an error of fact and law at [68] of the primary decision, where he 'sums up that it was solely the decision of Police' to arrest Mr Tallott, and where he found that there was no 'false information' given to police that led to a wrongful arrest.
In relation to incident one, Mr Tallott submits that the judge erred in fact at [66] in finding that there was no false information given to police. He says, in effect, that the judge erred in fact in finding that:[83]
(a)'camping' was an offence in May 2011;
(b)it was Mr Tallott's 'aggressive' manner which led to his arrest;
(c)Mr Emery notified police regarding people 'drinking alcohol' and not in respect of anything Mr Tallott 'was then doing';
(d)the police formed their own opinion whether Mr Tallott was camping, or whether a fire had been lit.
[83] Appellant's submissions, par 1.
Mr Tallott submits that the offences involving lighting a fire and cutting down branches were committed earlier in the day and could not have been the subject of a move on notice under s 27 of the CI Act.[84] The only offence that it could be 'reasonably suspected' that Mr Tallott had committed was the offence of 'camping'.[85] However, as at 13 May 2011, 'camping' did not include 'sleeping in your vehicle'.[86] The Local Law did not create an offence of 'sleeping in your vehicle' until October 2011.[87] Thus, the police were incorrectly informed of the status of 'camping' as an offence committed by Mr Tallott, which false information procured Mr Tallott's detention.[88] Ultimately, according to Mr Tallott, this incident and the procurement of his detention were retribution for the events earlier in the day.[89] In support of this argument, Mr Tallott makes reference to Myer Stores Ltd v Soo;[90] Coles Myer Limited v Webster; Coles Myer Limited v Thompson,[91] and particular reference to the dissenting judgment of Kirby J in Ruddock v Taylor.[92]
[84] Appellant's submissions, par 3(b)
[85] Appellant's submissions, par 3.1.
[86] Appellant's submissions, par 1.1(a).
[87] Appellant's submissions, par 3(a).
[88] Appellant's submissions pars 3.1 ‑ 4.
[89] Appellant's submissions, pars 4.5 ‑ 4.6.
[90] Myer Stores Ltd v Soo [1991] 2 VR 597.
[91] Coles Myer Limited v Webster; Coles Myer Limited v Thompson [2009] NSWCA 299.
[92] Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.
Finally, on the issue of Mr Tallott's aggression, Mr Tallott says that there was no other evidence apart from that of Mr Emery's that touched upon his 'aggressive manner' as 'the reason that he was arrested'. He makes reference to becoming annoyed and argumentative, but says in effect that this is less than being aggressive.[93]

Incident two - 14 November 2011

[93] Appellant's submissions, par 1.2(b)

In relation to incident two, Mr Tallott advanced two grounds of appeal to the following effect (grounds 5 and 6):
5.The judge erred in fact at [92] of the primary decision, where he found that Mr Tallott's van was causing an 'obstruction'.
6.The judge erred in law at [92] of the primary decision, when he relied on the decision of Griffith CJ in Haywood v Mumford[94] for the definition of 'obstruction'.
[94] Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133.
In relation to incident two, Mr Tallott says that the judge drew an unreasonable inference that Mr Tallott's van was causing an obstruction when it was parked in a parking reserve.[95] He says that, even though his vehicle was parked on the wood chips, that 'extra car park' is frequently used by people when the car park is otherwise full.[96] Further, he says that his vehicle did not block any right of way, footpath, laneway, curb, or that it in any other way affected, to any substantial degree, the commodiousness of the place.[97]
[95] Appellant's submissions, par 5.3.
[96] Appellant's submissions, par 6.2.
[97] Appellant's submissions, par 6.5.
Also, in relation to this incident, Mr Tallott submits that it was a 'dog act' to take his vehicle in circumstances where it would render him totally homeless. He submits, in this respect, that the court will have to consider the proper construction of s 53(c) and s 53(d) of the Constitution Act 1889 (WA).[98] He also submits that it is questionable whether the car park would constitute 'local government' property in the sense that it does not 'belong to' the City.[99] Reference in this regard is made to Fly by Night Musicians Club Limited v City of Fremantle.[100]

Incident three - 15 November 2011

[98] Appellant's submissions, par 6.7.

[99] Appellant's submissions, par 6.6.

[100] Fly by Night Musicians Club Limited v City of Fremantle [2004] WASCA 161 [27], [31], [35] ‑ [36].

In relation to incident three, Mr Tallott advanced two grounds of appeal to the following effect (grounds 7 and 8):
7.The judge erred in law and fact at [112] ‑ [117] of the primary decision in finding that:
(a)none of the City officers was responsible for Mr Tallott's arrest;
(b) the principles regarding the issue of a move on notice under s 27 of the CI Act were lawfully invoked; and
(c)it was 'irrelevant' if the area was 'restricted' or not, as the offence for which the move on notice related was 'camping on local government property'.
8.The judge erred in law at [117] of the primary decision, insofar as his Honour found that questions of the authority of City officers to exercise powers under the Camping Act were irrelevant, in that none of the officers purported to exercise any powers under that statute.
Mr Tallott submits that false information was relayed to police. He says, in effect, that Mr Thomson lied about Mr Tallott's aggression, and that there was false information regarding 'camping'. In this regard, he submits that cl 4.8 of the Local Law allowed the erection of a structure for 'protection from the elements', and that it was 'a bit of a stretch' to infer that Mr Tallott was camping at 3.00 pm in the afternoon.[101] He says, in effect, that the police officers, in arresting him, acted on the false information regarding Mr Tallott's 'aggression' and 'camping'. In this respect, he submits that it is irrelevant whether or not he was formally arrested, although he says that he was still always under arrest.[102]
[101] Appellant's submissions, par 7.
[102] Appellant's submissions, par 7.4(a).
In any event, if the relevant land on which he was 'camping' was restricted, Mr Tallott submits, in effect, that it was not a public place in relation to which the move on notice could lawfully be issued. In turn, the judge erred in finding that it was irrelevant whether or not the land on which Mr Tallott was 'camping' was restricted.[103]
[103] Appellant's submissions, pars 7.1(c) ‑ 7.3(c).
Mr Tallott says that if the City's officers were not performing any 'particular function', 'they are not afforded the "immunity" under s 9.56(c) of the [Local Government Act] or r 35 of the [Local Government (Functions and General) Regulations]', which require 'good faith'.[104]
[104] Appellant's submissions, par 7.5(a).
Mr Tallott also submits that the Local Law does not have the characteristics of subsidiary legislation that has 'legislative effect'. In this regard, reference is made to the submissions in CACV 1 of 2016 (see below). Mr Tallott says that it is questionable whether a move on notice may be issued for local law infringements.[105]
[105] Appellant's submissions, par 7.1(b)
Finally, Mr Tallott submits that, under the Local Government Act, there is no power to call police to enforce the Act or to perform 'criminal prosecutorial functions' based on infringements in the Local Law.[106]

Incident four - 19 April 2012

[106] Appellant's submissions, par 8.2.

In relation to incident four, Mr Tallott raises one ground of appeal (ground 9). That is that the judge erred in fact and law in finding that Mr Tallott was not in 'constructive possession' of his chattels, but that the City was in 'constructive possession' of Mr Tallott's chattels.
Mr Tallott submits, in effect, that a local government's 'control' over Crown land does not give it any 'interest' in possession of any items that are on 'their property'. He relies on s 46(5) of the Land Administration Act 1997 (WA) for the proposition that there is 'no "greater interest" in the possession of persons property, especially the owner out of possession by the acts of persons "controlling" that reserve'. With reference to the decision in Fly by Night Musicians Club, Mr Tallott submits that the cave does not 'belong to' the City, nor does its 'care, control or management' create an interest in the land in favour of the City.[107]
[107] Appellant's submissions, par 9.2.
Mr Tallott also submits that the cave is located below the low water mark, and that the jurisdiction of 'local government property law' is deemed to finish at the high water mark. He cites no evidence to that effect, and accepts that the point was not raised at trial.[108]
[108] Appellant's submissions, par 9.3.
Finally, Mr Tallott says that the City's officers knowingly deprived him of his chattels, and that there was clear malice. In any event, absent the 'knowing actions' of the City officers, this was irrelevant to the tort of trespass, and the defence of 'acting in good faith' was not available.[109]

Incident six - 21 October 2013

[109] Appellant's submissions, par 9.4.

In relation to the sixth incident, Mr Tallott raises two grounds of appeal to the following effect (grounds 10 and 11):
10.The judge erred in fact at [141] ‑ [142] of the primary decision in finding that Mr Tallott was not under arrest, when it was an unchallenged fact that Mr Tallott was under arrest for trespass.
11.The judge erred in fact and law at [144] ‑ [147] of the primary decision in finding that Reserve 12992 was effectively closed by sign, and that Mr Tallott was not allowed there.
As to ground 10, Mr Tallott says that his arrest was admitted by counsel for the City.[110]
[110] Appellant's submissions, par 10.
As to ground 11, Mr Tallott says that the judge's findings at [147] are unfounded, and that the relevant signs did not make it clear that the dunes were 'restricted areas'.[111]
[111] Appellant's submissions, par 11.
Mr Tallott further says that Reserve 12992 is clearly set aside for recreation.[112] He says that the reserve does not 'belong to' the City, and that it cannot restrict access to the recreation area or deal with the reserve in a manner contrary to the order under which it was designated for 'recreation only'.[113]
[112] Appellant's submissions, par 11.2.
[113] Appellant's submissions, par 11.3.
Mr Tallott submits that the actions of Mr Mitchell and Mr Kolm were what led to his arrest for trespass, and that Mr Mitchell acted recklessly and that they effected the outcome with malicious intent. He says that Mr Mitchell admits he actively endeavoured to persuade the police that Mr Tallott was in a restricted area, and that this was an invalid act in the sense that Mr Mitchell was not engaged in any function known to his statutory authority.[114]

Other grounds

[114] Appellant's submissions, par 11.7.

Mr Tallott also advances two further grounds of appeal, grounds 12 and 13, that are not in respect of particular incidents. They are to the following effect:
12.The judge erred in law and fact in finding that none of the defendants acted with malice.
13.'The City adduced "security documents" called CRM's [sic]. These documents were missing "memo's" [sic], had mismatching id's [sic], and were generally confusing to follow. [Mr Tallott] claims that the documents were either edited, the missing memo's [sic] were destroyed, or not produced to the Court. The City refused to disclose documents relative [sic] to the case'.
In relation to ground 12, Mr Tallott says, in effect, that malice on Mr Mitchell's part could be inferred from his evidence. Reference in this regard is made to, amongst other things, comments by Mr Mitchell in relation to Mr Tallott.[115] Mr Tallott also submits that there was evidence that Mr Kolm acted with malice in requesting foot patrols in order to 'blatantly target and harass' him.[116] He says, in respect of both Mr Mitchell and Mr Kolm, that their actions were not 'well founded', and that they 'actively engaged the presence of the criminal prosecution body to procure an outcome alien to the proper administration of their act'.[117] Finally, he says that there has been an unsavoury relationship between himself and Mr Thomson, and that Mr Thomson displayed reckless indifference as to whether he was lawfully entitled to interfere with Mr Tallott's goods.[118]
[115] Appellant's submissions, par 12.
[116] Appellant's submissions, par 12.1.
[117] Appellant's submissions, par 12.3.
[118] Appellant's submissions, par 12.5.
In relation to ground 13, Mr Tallott submits, in effect, that there were 'missing memo's', and that the City therefore failed to comply with an order for discovery. He says that the City had no real explanation for why the documents were missing.[119]
[119] Appellant's submissions, pars 13-13.2.

Notice of contention in CACV 179 of 2015 - in respect of the second, fourth and sixth incidents

As noted above, the City filed a notice of contention in the appeal. The notice of contention raises two points.

Incident six

By ground 1, it is contended that the primary decision in relation to the false imprisonment claim in respect of incident six is supportable on the basis that Mr Tallott did not make out any of the following elements of the tort (even if there had been an arrest):
(a)There was lawful justification for the arrest on the basis that Mr Tallott had committed the offence of trespass under s 70A of the Criminal Code at the time of the arrest. Reference in this regard is made to Soo.[120]
(b)Despite the arrest, Mr Tallott did not suffer relevant deprivation of liberty of movement and was never taken into custody.
(c)There was no evidence to support a conclusion that any of the respondents were active in promoting and causing the arrest, or that any of the respondents had requested that Mr Tallott be arrested. The elements of trespass were all observable by the arresting officer.
[120] Soo (599), (625). Note: there appears to be a typographical error in the citation referred to in the notice of contention.
Ground 1 was argued by the City on the basis that it encompassed the (lesser) proposition that the police reasonably suspected that Mr Tallott had committed the offence of trespass under s 70A of the Criminal Code.[121]

Incidents two and four

[121] Appeal ts 23 - 24.

By ground 2 of the notice of contention, it is submitted that the primary decision in relation to Mr Tallott's claims for trespass to chattels in respect of incidents two and four are also supported on the basis that Mr Tallott:
(a)was not in actual possession of the chattels at the time of the alleged interference; and
(b)could not point to any person in actual possession that held the chattels as his servant, agent or recoverable bailee.

Grounds of appeal and submissions in CACV 1 of 2016 - the appeal in relation to the O 58 r 11 proceedings

Mr Tallott's appellant's case in CACV 1 of 2016 contains eight grounds of appeal to the following effect:
1.The judge erred in failing to consider the second limb of the construction and validity of the impugned Local Law, which was that the Local Law was not subsidiary legislation that had legislative effect.
2.The judge erred in law in failing to consider at [43] of the primary decision that the power to make local laws under s 3.5 of the Local Government Act does not only include s 3.1(1) and s 3.1(3), but that s 3.1(2) defines the scope of the general function and how it is to be construed in light of the other functions under the Act and other written laws.
3.The judge erred in law at [39] ‑ [42] of the primary decision by not taking into account the statutory definition of 'camp' in the Camping Act.
4.The judge erred in fact and law at [44] of the primary decision in finding that cl 3.14 of the Local Law did not amount to a prohibition on camping, and in failing to consider the prima facie meaning of the word 'regulate' in Swan Hill Corporation.
5.In considering the issue of standing at [37] of the primary decision, the judge erred in fact in finding that the clauses in the Local Law relevant to Mr Tallott's causes of action were only limited to cl 3.14, cl 9.1 and cl 9.2, when Mr Tallott was also directly affected by cl 3.2 ‑ cl 3.14, cl 5.3 and cl 10.6.
6.The judge erred in fact at [35] of the primary decision by failing to consider that 'the unlawfulness' or invalidity of the acts of the City were not only attributable to their reliance on the invalid provisions of the Local Law, but the mistaken belief that the Local Law had legislative effect. This led to the police becoming involved in incidents where they had no power to enforce the Local Law, or to issue move on notices.
7.The judge erred in fact and law by failing to consider whether the City officers' actions were properly performed according to statute, or whether the 'immunity' under the Local Government Act afforded the City officers any real defence unless they were acting pursuant to a prescribed power or duty provided for under that Act and reg 35 of the Local Government (Functions and General) Regulations in 'administering their local laws'.
8.There was an overall miscarriage of justice by the primary judge in failing to construe the Local Law in light of the principles governing the construction and validity of delegated instruments, the omission to take into account the 'legislative effect limb of the action', the inconsistencies in language, and performance of 'authorised persons' functions under the Local Government Act.

Submissions in CACV 1 of 2016 - O 58 r 11 proceedings

In relation to ground one, Mr Tallott submits, in effect, that the Local Law is not 'subsidiary legislation' in that it does not have 'legislative effect'. Rather, it is administrative or executive in effect. Mr Tallott refers to the judgment of Edelman J in Sea Shepherd Australia Ltd v The State of Western Australia.[122] In reliance on this judgment, he refers to several factors which he says point to the Local Law being purely administrative or executive (and not legislative) in character.[123]
[122] Sea Shepherd Australia Ltd v The State of Western Australia [2014] WASC 66.
[123] Appellant's submissions, par 9.
Accordingly, Mr Tallott submits, in effect, that there can be no added 'function conferred on an authorised person' in the Local Law, nor 'can the bye‑law [sic] try to widen the scope of the parent act [sic]', in this case the Local Government Act. He submits that cl 9.1 of the Local Law, which refers to 'must obey any lawful direction', is inconsistent with the power derived from s 9.12 of the Local Government Act. Mr Tallott also says that cl 9.2 of the Local Law, which refers to directing people to leave local government property, is inconsistent with s 9.11 of the Local Government Act. Mr Tallott says that, under the Local Government Act, there is no power of arrest, except where you refuse to give your name, although the City has never sought to rely on that power in this case.[124]
[124] Appellant's submissions par 2.
Mr Tallott submits that the Local Law cannot prescribe or confer powers, functions or duties. Those are prescribed in the Local Government Act. He says that the Local Law can create offences and prescribe penalties pursuant to s 3.10 of the Local Government Act, and that the function and duty of an authorised person then comes in administering those local laws. He says that the 'function' is prescribed by enforcement through infringement (s 9.15 ‑ s 9.23), the power to request a name (s 9.11), and offences to obstruct (s 9.12). Mr Tallott says that at no stage were the authorised persons engaged in a particular course of conduct relating to those specific functions. Further, '[a]ny diversion from performing those functions according to the Statute and Regulation means that the protection afforded under [s] 9.56 of the [Local Government Act] is not available, as they were not carrying out a function according to law or "acting in good faith"'. Mr Tallott also refers to s 9.10(2) of the Local Government Act, which requires an authorised person to produce their certificate of authorisation whenever required to do so by a person who has been or is about to be affected by any exercise of authority by the authorised person.[125]
[125] Appellant's submissions, par 4.
Mr Tallott also submits, in effect, that any 'offence' under the Local Law would not meet the definition of an 'offence' under the CI Act for which a move on notice may be issued, nor would it be an offence where a 'direction could be made' by an authorised officer under cl 9.2 of the Local Law.[126]
[126] Appellant's submissions, par 7.
In relation to ground two, Mr Tallott submits, in effect, that the judge erred in construing s 3.1 of the Local Government Act at [43] of the primary decision, and failed to have proper regard to s 3.1(2) and thereby read the whole of s 3.1 together.[127] He says that s 3.1 of the Local Government Act, construed in light of all its provisions, would not permit the enactment of cl 3.14 of the Local Law, as s 28 and s 29 of the Camping Act serve to constrain law making powers to those under s 28(a) ‑ (f) of that Act. He says that s 3.1(2) 'is important' when construing power to regulate through the Camping Act as it serves as a 'limiter' to what subject matter it may 'regulate' under the Act. Reference is also made to the High Court's decision in Swan Hill Corporation. He also says, in effect, that restricting and prohibiting camping is not consistent with the objects of the Camping Act. He also submits that the 'format' of s 3.10 of the Local Government Act should have been taken into consideration.[128]
[127] Appellant's submissions, par 10.
[128] Appellant's submissions, pars 11 ‑ 12.
In relation to ground three, Mr Tallott submits, in effect, that the judge erred by referring to cl 3.14 of the Local Law as it stood before October 2011, and failed to have regard to the current clause which points to s 5 of the Camping Act for the definition of 'camp ground', 'facility' and 'caravan park'. Mr Tallott submits that at no point in any of the incidents, but for one, did he in any way breach the statutory definition of 'camp'.[129]
[129] Appellant's submissions, pars 13 ‑ 16.
In relation to ground four, Mr Tallott submits that the Local Law not only goes outside the ambit of the statutory power to make local laws for the 'regulation' of a subject matter, but also that '[t]he compounding Bradbury effect, on the administrative/executive character of [the Local Law] is that the local law applies the law in "particular cases"'.[130]
[130] Appellant's submissions, pars 17 ‑ 20.
The 'Bradbury effect' appears to be a reference to the High Court's judgment in Swan Hill Corporation. In that case, Dixon J said:[131]
For the force of the word 'regulating' has been discussed repeatedly and the cases dealing with its application have grown only too familiar. Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated.
[131] Swan Hill Corporation (762); see appellant's submissions, par 19.
Mr Tallott also submits that the judge erred in fact when he found that cl 3.14 did not prohibit camping, but sought only to 'regulate' it. He says that the Local Law clearly prohibits camping throughout the City's entire district. In this regard, he submits that there was no evidence that there were any 'camp grounds' or 'facilities' which were 'run by the [C]ity'.[132]
[132] Appellant's submissions, par 21.
Finally, Mr Tallott submits, in effect, that the judge erred in noting at [45] of the primary decision that the requirement to obtain a permit to camp on local government property in cl 3.14 is consistent with reg 11(1)(d) of the Camping Regulations. Mr Tallott appears to contend that the word 'camp' when used as a verb in the Camping Act and the Camping Regulations has a defined meaning inconsistent with the meaning of 'camp' when used as a verb in cl 3.14 of the Local Law. He also submits that a 'permit' means a building permit or a demolition permit as defined in s 3 of the Building Act 2011 (WA).[133]
[133] Appellant's submissions, par 22.
In relation to ground five, Mr Tallott submits, in effect, that relevant provisions in respect of the Local Law for which he ought to have standing are at least cl 3.2 ‑ cl 3.14, cl 9.1 ‑ cl 9.2, cl 5.3 ‑ cl 5.5 and cl 10.6.[134]
[134] Appellant's submissions, pars 23 ‑ 24.
In relation to ground six, Mr Tallott submits, in effect, that the City exercised powers inconsistent with their statutory powers. Further, he says that the judge's failure to consider if the Local Law was administrative or executive in effect led to error in determining whether the City acted ultra vires in advising the police to exercise powers that were not available to be exercised.[135] He submits, in effect, that a local government has no standing relevantly 'to institute proceedings through third parties' by which, it appears, he means that a local authority cannot cause the police to prosecute an offence on behalf of, or as agent for, the local authority.[136]
[135] Appellant's submissions, pars 25 ‑ 26.
[136] Appellant's submissions, par 25.
In relation to ground seven, Mr Tallott submits that the City not only relied on 'invalid provisions', but recklessly invoked criminal process outside the ambit of their prescribed power under the Local Government Act. He submits that the outcome of invoking imprisonment and criminal charges in lieu of an infringement under the Local Law is inconsistent with the statutory functions conferred on an authorised officer under the Local Government Act.[137]
[137] Appellant's submissions, par 27.
Ground eight is, in effect, a catch-all ground and Mr Tallott's submissions are framed as such.[138]
[138] See appellant's submissions, pars 28 ‑ 33.

Grounds of appeal and submissions in CACV 2 of 2016 - seventh incident

Grounds of appeal

Mr Tallott's appellant's case in CACV 2 of 2016 contains six grounds of appeal to the following effect:
1.The judge erred in law in finding that 'offences' against the Local Law were 'offences' to which a move on notice could be issued pursuant to s 27 of the CI Act.
2.The judge erred in fact in finding that there was no evidence of criminal court proceedings being instigated as a result of the seventh incident, and the judge erred in law in finding that there was no improper purpose in the City 'invoking the criminal machinery of the law'.
3.The judge erred in law and fact in finding that there was no false information given to police officers that led to a wrongful arrest, nor was there any malice in the City's actions.
4.The judge erred in law and fact in finding that there was a 'reasonable suspicion' that Mr Tallott was 'trespassing' pursuant to s 70A of the Criminal Code.
5.The judge erred in law and fact at [161] of the primary decision, and failed to consider the legal effect of the by-laws and whether the 'immunity' under s 9.56 of the Local Government Act applied to the City.
6.The judge erred in law and fact at [164] ‑ [167] of the primary decision by finding that the torts were not made out.

Submissions in CACV 2 of 2016

In relation to ground one, Mr Tallott submits, in effect, that the judge erred in finding that an 'offence' against the Local Law is an offence that could be dealt with under s 27 of the CI Act. He says that the relevant local laws are prescribed through s 3.10 of the Local Government Act, and that there is no link between that Act and the CI Act.[139]He submits that 'the administrative effect of the local law, is a direct separation of powers', that the Local Government Act has its own procedure for making and enforcing local law, and that the administrative character of the Local Law separates it from an 'offence' recognised by the CI Act.[140] He says, in effect, that breach of the Local Laws is not punishable by anything other than an infringement, that authorised persons under the Local Government Act do not have, and cannot be prescribed by reason of the Local Laws to have, 'move on powers', and that the police should not be involved in exercising any power through a local law. He also alleges that the Local Law does not have legislative effect.[141]
[139] Appellant's submissions, pars 1 ‑ 1.2.
[140] Appellant's submissions, pars 1.3, 1.8.
[141] Appellant's submissions, pars 1.6 ‑ 1.8.
In relation to ground two, Mr Tallott submits, in effect, that there was material contained in his evidence bundle related to criminal proceedings that had been commenced by the respondents.[142] He specifically refers to tabs 33 ‑ 38 of his evidence bundle.[143] He says that these proceedings were improperly instituted against him through the police in order to achieve a 'collateral advantage' to the Local Government Act, namely his arrest and imprisonment.[144] Mr Tallott refers to Leerdam v Noori,[145] where the court said:
[I]n Emanuele v Hedley (Federal Court of Australia, 19 June 1998, unreported) … [i]n a joint judgment Wilcox, Myles and Nicholson JJ said:
'… It seems clear that … an action for abuse of process is available only against the party who actually instituted the proceedings: See Williams v Spautz … This is logical because the essence of the tort is that the proceeding was instituted for an improper purpose. If the person who actually instituted the proceeding had a proper purpose, the claim of an abuse of process must fail irrespective of the motives and conduct of people who enforce the decision to institute the proceedings. No doubt a person may act through a servant or agent in instituting a proceeding, in which case the purpose of the principal will be the relevant purpose.'
[142] Appellant's submissions, pars 2, 2.2.
[143] Appellant's submissions, par 2.
[144] Appellant's submissions, pars 2.3 ‑ 2.7.
[145] Leerdam v Noori [2009] NSWCA 90 [32]; see appellant's submissions, par 2.6.
In this regard, Mr Tallott submits, in effect, that the police were the agents of the City in bringing proceedings against him.
In relation to ground three, Mr Tallott submits that the information given by Mr Mitchell to police that the cave was in a 'restricted area' was entirely false.[146] By 'restricted area', Mr Tallott appears to mean an area closed to the public pursuant to cl 5.6 of the Local Law. He also says that malice could be inferred on behalf of the City officers insofar as they performed their functions with reckless indifference as to whether they had the power to do certain acts.[147]
[146] Appellant's submissions, par 3, with reference to ts 20 ‑ 204.
[147] Appellant's submissions, par 3.2.
In relation to ground four, Mr Tallott says, in effect, that it is absurd that an offence against a by‑law could amount to trespass.[148] He says that, just because an offence has been 'committed', that does not also imply that a trespass has been committed, and that lighting a fire or engaging in activities that require a permit does not then involve a 'trespass'.[149] He also says that trespassing on Crown land set aside for recreation 'is a bit of a stretch'.[150] Finally, he says that the police did not witness any of the purported 'offences' but, in effect, acted under the authority and direction of the City officers that by-law offences had been committed.[151]
[148] Appellant's submissions, par 4.1.
[149] Appellant's submissions, par 4.3, 4.5.
[150] Appellant's submissions, par 4.2.
[151] Appellant's submissions, par 4.4.
In relation to ground five, Mr Tallott, in effect, challenges the judge's findings with respect to incident seven at [161(ii)], [161(iv)] and [161(vi) ‑ (vii)] of the primary decision (see [62] above). He says, in relation to the judge's finding at [161(ii)] that Mr Wilkins refused to comply with a request to produce his 'authority card', that he thereby refused to perform a statutory duty and that, while he tried to exercise some form of power, he failed to bring himself within the ambit of the 'immunity' under s 9.56(c) of the Local Government Act. He also says that there is no statutory foundation for giving 'directions' under the Local Government Act.[152]
[152] Appellant's submissions, pars 5.1 ‑ 5.2.
With respect to the findings at [161(iv)], Mr Tallott says that he did not need to comply with any direction given by Mr Wilkins after he refused to produce his 'certificate of authority'. He also says that he did not have to comply with any direction that was not a 'particular Statutory function' of an authorised officer.[153] He further says, in effect, that a requirement under the Local Law for a permit for a fire seems to be inconsistent with s 25 of the Bush Fires Act 1954 (WA).
[153] Appellant's submissions, par 5.3.
With respect to the findings at [161(vi) ‑ (vii)], Mr Tallott says that there was a clear refusal on Mr Emery's part to perform his duty according to his statutory power, and that he acted in reckless disregard as to whether he had the power to 'invoke the Police to carry out criminal prosecutions on his behalf instead of exercise his Statutory duty according to law' (emphasis added).[154]
[154] Appellant's submissions, pars 5.5 ‑ 5.6.
Finally, in relation to ground six, Mr Tallott alleges, in effect, that he had established the torts of collateral abuse of process, false imprisonment and misfeasance in public office.
With respect to collateral abuse of process, Mr Tallott says that the 'only thing that may exculpate the [City] from this particular Tort, is the fact that they were not "parties" to the actual Court proceeding being "instituted"'.[155] Nevertheless, Mr Tallott says that the City's officers were 'involved' and 'participating' in the legal proceedings, and that they were 'involved with others taking part in the activity'.[156]
[155] Appellant's submissions, par 6.
[156] Appellant's submissions, par 6.1.
In relation to the false imprisonment claim, Mr Tallott says that the police officers' belief or suspicion that any 'offences' had been committed was a direct result of information from the City. In this regard, he says that although the information about the 'fire' was correct, this does not mean that being 'moved on' or arrested as a result of that offence being committed was within the ambit of the statutory power for enforcing the infringement. He says, in effect, that breach of the Local Law cannot be enforced outside the scope of what is permitted by the Local Government Act, and that a move on notice is outside that scope.[157]
[157] Appellant's submissions, par 6.4.
Finally, with respect to the claim for misfeasance in public office, Mr Tallott submits, in effect, that Mr Wilkins and Mr Emery intended for Mr Tallott to be arrested, and that they recklessly disregarded the means of ascertaining the extent of their power in this regard.[158] He says that they have committed an 'invalid act' by failing to produce their 'authority cards', and by failing to perform their functions according to statute and issue an infringement notice rather than engaging the police to arrest Mr Tallott.[159]
[158] Appellant's submissions, pars 6.5, 6.7, 6.10.
[159] Appellant's submissions, par 6.8.

Legislation

At this point, it is convenient to set out the principal provisions of the relevant legislation and other written laws canvassed in the appeal, together with certain observations on the operation of those provisions.

Police may issue move on orders - Criminal Investigation Act 2006 (WA) (CI Act)

Section 27 of the CI Act provides, relevantly:
27.Suspects and others may be ordered to move on
(1)A police officer may order a person who is in a public place, or in a vehicle used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person -
…
(e)intends to commit an offence; or
(f)has just committed or is committing an offence.

(2)A police officer giving an order under subsection (1) may in addition do either or both of the following -
(a)order the person to go beyond a reasonable distance from the place, or the part of the place, set by the officer;
(b)order the person to obey the order or orders for a reasonable period set by the officer; but the period must not be longer than 24 hours.

(3)When giving a person an order under subsection (1), a police officer must take into account the likely effect of the order on the person, including but not limited to the effect on the person’s access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.
(4)For the purpose of giving an order under this section to a person whose personal details (as that term is defined in the Criminal Investigation (Identifying People) Act 2002 section 16) are unknown to the officer, a police officer may request the person to give the officer any or all of the person’s personal details.
(5)If a request is made under subsection (4), the Criminal Investigation (Identifying People) Act 2002 section 16 applies to and in relation to the request in the same way as it applies to a request made under subsection (2) of that section.

As to ground 4, the judge found, in effect, that the police ordered Mr Tallott to move on from the area of the cave and the fire, he refused to comply with the order, and was arrested. The police issued the move on order because they formed a reasonable suspicion that he had committed offences under the Local Law (cl 3.13(j)), in relation to lighting the fire; cl 3.14, in relation to camping; and cl 9.1 and cl 9.2, in relation to directions from authorised officers).[195] The judge also appears to have found, in addition, that the order to move on involved, or perhaps was accompanied by, the police conveying a 'request' on behalf of the City to leave the area, and that by failing to leave the area when requested, the police reasonably suspected Mr Tallott of committing the offence of trespass.[196]
[195] Primary decision [161(vi)], [161(vii)].
[196] Primary decision [162].
It is that latter finding of reasonable suspicion of trespass which is the subject of ground 4. As to this, two points may be made. First, on the judge's unchallenged or unchallengeable findings of fact as to Mr Tallott refusing to leave the area after the police requested him to leave the area, having formed the reasonable suspicion that he was committing an offence or offences under the Local Law, it was open to his Honour to conclude that the police had a reasonable suspicion that the offence of trespass under s 70A of the Criminal Code had been committed. Secondly, and more fundamentally, the point does not assist Mr Tallott in challenging the judge's ultimate findings that Mr Tallott had not established, as against the City, the specific torts of collateral abuse of process, misfeasance in public office and false imprisonment. The material findings of fact, which have not been shown to be in error, are that:[197]
(a)the City was not a party (directly or via the 'agency' of the police) to the prosecution of criminal proceedings against Mr Tallott;
(b)the City's officers did not act with malice;
(c)no false information was provided by the City; and
(d)Mr Tallott's detention was based on his refusal to comply with a move on order issued by the police.
[197] Primary decision [165] - [167].
Accordingly, ground 4 should be dismissed.
In relation to ground 5, the findings of fact were open on the evidence. There was no finding of fact that the City's officers had failed to produce their authority cards. Mr Wilkins denied that he was asked to produce his.[198] Mr McLean said, in effect, that he did produce it.[199] Mr Emery said that he 'had no reason to produce [his] warrant card as [he] was not dealing with [Mr Tallott]'.[200] The judge appears to have accepted that Mr Emery's role was relevantly confined to providing a copy of the Local Law to the police to enable the police to exercise whatever powers they considered appropriate.[201] On the findings, Mr Tallott was not about to be affected by 'any exercise of authority' by Mr Emery and he was not required to produce his certificate in accordance with s 9.10(2) of the Local Government Act. Insofar as Mr Tallott submits that the police acted as agent for the City and the City's officers, there is no foundation in the judge's findings of fact, or in law, for that submission. Nor is there any inconsistency between cl 3.14 of the Local Law and s 25 of the Bush Fires Act. The Local Law does not purport to address the topic or subject matter of the prohibition contained in s 25(1) of the Bush Fires Act. Ground 5 should be dismissed.
[198] ts 256 - 257.
[199] Primary decision [156], ts 318 - 319.
[200] GB 62, par 33.
[201] Primary decision [154] - [155], [161(vi)].
In relation to ground 6, on the judge's undisturbed findings of fact, and on the proper construction of the CI Act, there is no error in the judge's conclusion that Mr Tallott had not established, as against the City, the torts of collateral abuse of process, misfeasance in public office or false imprisonment.

Disposition - appeal in respect of incidents one to four and six

Incident one

Ground 1 relates to the judge's findings leading to his conclusion that Mr Tallott had not established the torts of false imprisonment or conspiracy to harm (or 'combination').
The judge's statement of the principles and approach to the issue of false imprisonment has been set out in relation to incident seven. In relation to conspiracy, the judge observed that there may be 'conspiracy by lawful means' and 'conspiracy by unlawful means'.[202] As to the former, the elements are:[203]
(a)combination or agreement between two or more persons;
(b)the sole or predominant purpose of the combination or agreement being to injure the plaintiff;
(c)the combination or agreement was carried into effect by the defendant's conduct; and
(d)the causation of loss and damage to the plaintiff.
[202] Primary decision [17].
[203] Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 [60 ] - [61].
As to the latter, the elements are:[204]
(a)a combination or agreement between two or more persons to engage in conduct amounting to unlawful means;
(b)the purpose of that combination or agreement was to injure the plaintiff;
(c)the combination or agreement was carried into effect by the commission of the agreed unlawful acts; and
(d)those unlawful acts caused damage to the plaintiff.
[204] Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 [421]; Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 [612].
In the primary decision, the judge found, in effect, that:
(a)in relation to the alleged false imprisonment, the police had not acted on any false information provided to them by the City which caused them to wrongfully arrest Mr Tallott;[205] and
(b)in relation to the alleged conspiracy, there was no agreement by the City's officers to do any unlawful act, or use any unlawful means to harm Mr Tallott. Nor did the City's officers have any intention to cause injury or harm to Mr Tallott.[206]
[205] Primary decision [68].
[206] Primary decision [67].
The judge's findings were based on hearing all the evidence and his assessment of the witnesses. Having considered Mr Tallott's submissions, including the evidence to which he has referred, it cannot be accepted that Mr Tallott has established that the findings of fact made by the judge are properly the subject of interference by an appellate court. Ground 1 should be dismissed.
Ground 2 also alleges error of fact, and should be dismissed for similar reasons.
In relation to ground 3, it may be assumed, without deciding, that the words 'camp on, or lodge at … local government property' in cl 3.14(3)(a) of the earlier version of the Local Law[207] could not apply to the matters observed by Sergeant Sagar, ie, the sleeping bags, the items outside the van which were suggestive of camping, and the charred remains of what appeared to be a fire.[208] Even on that assumption, the ground should be dismissed for two reasons. First, it does not answer the finding that the police reasonably suspected Mr Tallott of having made a fire without a permit, contrary to cl 3.13(1)(j) of the Local Law, which was itself a reason for the move on notice. Secondly, even if the police misapplied or misunderstood cl 3.14 of the Local Law, that does not establish any error by the judge in finding that Mr Tallott's claims against the City alleging false imprisonment and conspiracy had not been established.
[207] GB 410 ‑ 411.
[208] Primary decision [59].
Ground 4, to the extent that it also challenges findings of fact, should be dismissed for similar reasons to those given in relation to grounds 1 and 2. There is no error of law established with respect to the judge's finding at [68] of the primary decision.

Incident two

Incident two concerns the removal of Mr Tallott's vehicle on 14 November 2011. Mr Tallott's evidence was that he lived in the van near the northern end of the Scarborough Beach car park. He placed the vehicle on certain land between some trees.[209] It was not on the tarmac set aside for parking.[210] This was a public place.[211] The vehicle had been there for several days, jacked up on logs and other things.[212]
[209] Primary decision [70] - [71].
[210] Primary decision [74], [90].
[211] Primary decision [87], [90].
[212] Primary decision [71], [74], [93].
The judge at [91] said:
In Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133, 138 Griffith CJ said:
'In my opinion the term "obstruction", is used in the Police Offences Act 1890, includes any continuous physical occupation of a portion of a street which appreciably diminishes the space available for passing and repassing, or which renders such passing or repassing less commodious, whether any person is in fact affected by it or not.'
The judge at [92] continued:
In my view, the sense in which the word 'obstructs' is used in r 29(1) of the Local Government (Functions and General) Regulations, cl 8.6 of the Parking Local Law 2008 and cl 4.1 of the Thoroughfares and Public Places Local Law is the sense described in Haywood v Mumford. I find that Mr Tallott's vehicle was obstructing a part of a public place and city property and the lawful use of that place. That is because it was occupying space which might be used by pedestrians entering or leaving the parking area and diminishing the area available for that or any other purpose.
By grounds 5 and 6, Mr Tallott challenges the findings at [92].
Whether the word 'obstruct' carries the meaning referred to in Haywood v Mumford,[213] or (to the extent that there may be any difference) has its ordinary meaning, which includes to 'make difficult of passage' and 'to come in the way of',[214] the judge's findings of fact concerning obstruction at [92] were open.
[213] Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133.
[214] Macquarie Online Dictionary.
Insofar as Mr Tallott contends that there is a general principle that a man's house is his castle, as a result of which the provisions of the Local Government Act and the Local Law are contrary to the Constitution Act, that submission cannot be accepted. A principle in those general terms is not the 'operation of any law' within the meaning of s 53 of the Constitution Act.
Nor is it relevant that the area in question did not 'belong' to the City, as the management, care and control of the land was vested in the City pursuant to management orders under s 46(1) of the Land Administration Act.[215] The decision in Fly By Night Musicians Club Ltd does not assist Mr Tallott in this regard. That case concerned an entirely different question. It was an appeal against a determination of the Land Valuation Tribunal to the effect that rates had been legally levied against the appellant in respect of a property it leased from the National Trust of Australia. The property was the subject of a management order under s 46(1) of the Land Administration Act, placing its care, control and management with the National Trust. It was common ground that if the property was property ‘belonging to’ the National Trust, it would be exempt from rates under s 17(1) of the National Trust of Australia (WA) Act 1964 (1964 Act). The Tribunal at first instance concluded that the property did not belong to the National Trust. On appeal, Le Miere J concluded that the property did not belong to the National Trust by reason only of a management order in its favour. He said that the land belonged to the Crown, and that the rights created by the management order were not sufficient to constitute the land ‘belonging to’ the National Trust within the meaning of s 17(1) of the 1964 Act.
[215] Primary decision [27]; GB 473.
Grounds 5 and 6 should be dismissed.

Incident three

Insofar as ground 7 challenges findings of fact, those challenges should be rejected, essentially for the reasons given in relation to Mr Tallott's other challenges to findings of fact. The judge heard all of the evidence and it has not been shown that he did not use, or palpably misused, his advantage, or that appellate interference in his fact‑finding is otherwise justified, in relation to this matter. Moreover, nothing in Mr Tallott's submissions would support a finding by this court that the City's officers acted in the absence of good faith.
Insofar as ground 7, and the arguments in support of it, contend that the Local Law was not subsidiary legislation within the meaning of the CI Act, or that the police had no power of arrest, or that the police acted as agents for the City, for the reasons given earlier, those contentions cannot be accepted.
Insofar as Mr Tallott relies on cl 4.8 of the Local Law,[216] which permitted a person to erect an umbrella or temporary shade structure in specified circumstances, two points may be made. First, Mr Tallott has not established that, on the evidence, it was not open to the judge to find that the police had a reasonable suspicion that, with his swag and the hood, he was camping on local government property within the meaning of cl 3.14(3)(a) of the Local Law. Secondly, even if the police had not formed a reasonable suspicion in that regard, that, in itself, would not establish the causes of action against the City of false imprisonment and combination.
[216] See GB 457.
In relation to Mr Tallott's challenge in ground 8 to [117] of the primary decision, no error is established. There, the judge said:
Some attention was also given by Mr Tallott to questions of the authority of various City officers to exercise powers under the Caravan Parks and Camping Grounds Act. That too is irrelevant. None of the officers concerned, either the City's officers or the police officers, purported to act under the Caravan Parks and Camping Grounds Act. They were acting in the context of an apparent breach of a local law. A power to make the local law was under s 29 of the Caravan Parks and Camping Grounds Act but that power is conferred 'as if that purpose were a purpose for which local laws could be made under' the LG Act. The LG Property Local Law is a local law made under the LG Act. Officers exercising power under the LG Property Local Law require appropriate authorisation under s 9.10 of the LG Act. No authority under the Caravan Parks and Camping Grounds Act was necessary for them to undertake the action which they did.
The judge was correct for the reasons he gave.
Grounds 7 and 8 in relation to incident three should be dismissed.

Incident four

In relation to incident four, Mr Tallott had alleged in the primary proceedings misfeasance in public office, trespass to goods and 'combination' to cause harm. The judge's findings of fact, which do not appear to be challenged, or were in any event open, are that a City officer, Mr Thomson, found the relevant items in the cave, did not know that they belonged to Mr Tallott, had the items removed and forwarded them to the local police so that they could be claimed by the owner in the event that the owner came forward.[217]
[217] Primary decision [122].
There is one ground of appeal, ground 9, to the effect that the judge failed to find that the items in the cave were in the 'constructive possession' of Mr Tallott. Also, in the course of his submissions, but not in the ground, Mr Tallott alleged that there was clear malice.
The latter point may be dealt with immediately. The judge found that Mr Thomson did not act with malice.[218] That finding was open and, accordingly, the judge's finding that Mr Tallott had not established a claim for misfeasance in public office was open to him. Also, ground 9 and the arguments in support of it do not seem to challenge the finding that Mr Tallott had not established a cause of action with respect to conspiracy.
[218] Primary decision [123].
That leaves the claim of trespass to goods. The finding of the judge which appears to be the subject of ground 9 is as follows:[219]
Nor do I consider that the claim for trespass to goods is established. Mr Tallott was not in actual or constructive possession of the goods at the time they were removed from the cave. Whilst, as owner of the goods, Mr Tallott may have had a right to possession, at the time they were removed, they were on land over which the City exercised control. Having found the apparently abandoned goods on land over which it clearly exercised control, the City was effectively in possession of the goods. In taking the action which it did, it did not interfere with Mr Tallott's right to possession of the goods as owner, which he subsequently exercised by recovering the goods from the police station. The action for trespass to goods is not made out.
[219] Primary decision [124].
There is no error in the judge's reasoning. An owner out of actual possession cannot maintain an action for trespass, subject to the qualification that a person with a mere right to possession may sue in trespass if, at the time of the wrong, their servant, agent or bailee at will had actual possession.[220] Neither the general rule nor the qualification applied in the case of Mr Tallott.
[220] Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 224, 226 - 228.
In relation to Mr Tallott's submission that the cave is below the low water mark, Mr Tallott did not contend that there was any evidence of that, and, as noted earlier, he accepts that the point was not raised at trial. The point cannot now be raised on appeal.[221] In any event, it is difficult to see how the point might assist Mr Tallott in terms of ground 9. Even if the cave were below the low water mark, that fact would not in itself support any claim by him to possession of the items left in the cave. That is particularly so where he did not seek to establish the exercise, by him, of any legal or other control over the cave or its contents.
[221] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] ‑ [53].
Ground 9, in relation to incident four, should be dismissed.

Grounds 12 and 13

Before turning to incident six, and the associated notice of contention, it is convenient to refer at this point to grounds 12 and 13. Ground 12 alleges that the judge erred in finding that the City's officers had not acted with malice. That was a finding of fact in relation to various incidents which, as previously noted, has not been shown to be erroneous bearing in mind the limitations on appellate intervention in relation to credibility findings. As to ground 13, it appears to be alleged that discovery by the City was inadequate. Having considered Mr Tallott's submissions, it has not been established that there was any, or at least any significant, failure by the City to comply with an order for discovery. Nor are there grounds upon which this court could reasonably infer that the City 'refused' to discover documents or has destroyed documents.[222] Further, there is no basis for an inference in the materials before this court that if the documents said by Mr Tallott to have been missing had been discovered, they could have affected or had any material bearing on the result of the primary proceedings.[223] Accordingly, grounds 12 and 13 should be dismissed.

Incident six and the notice of contention

[222] cf appellant's written submissions, par 13.2.

[223] See generally, Commonwealth Bank of Australia v Quade [1991] HCA 61; (1991) 178 CLR 134, 142 ‑ 143.

Grounds 10 and 11 concern incident six where Mr Tallott erected a pole on the hill in the dunes area of Scarborough Beach, and was removed by police from the area to the nearby car park area. As noted earlier, the judge found that the dunes area was demarcated by multiple signs along its edge. A photograph of one of the signs indicates that it was in the following terms:[224]
[224] GB 503.

City of Stirling

DUNE CONSERVATION AREA

Why Stabilise and Revegetate the Dunes

•      To create wildlife movement corridors and habitats

•      For public interest in the diversity of coastal plants and animals

•      To sustain natural sand accumulation and erosion cycles

•      To contain tidal surges during abnormal storms

•      To prevent sand drift on to built areas

What you can do to Protect the Dunes

•      Avoid littering and rubbish dumping

•      Please do not climb on to dunes - use beach access paths provided

•      Do not remove or burn tree prunings used for dune stabilisation

•      Avoid any form of damage to dune protection fencing

•      Assist with establishment of dune plantings

The judge found that as a matter of law, the effect of the signs was to close the dunes area to the public within the meaning of cl 5.6 of the Local Law.[225] As noted earlier, cl 5.6 provided:
A person must not enter local government property which has been fenced off or closed to the public by a sign or otherwise, unless that person is authorised to do so by the City.
[225] Primary decision [145].
The judge also found, as a fact, that the view formed by the relevant City officer, and conveyed to the police, that Mr Tallott's presence on the dunes area was in breach of cl 5.6 of the Local Law, was well‑founded.[226]
[226] Primary decision [145].
The judge found, in effect, that Mr Tallott had been requested by both the City's officer, and the police, to leave the dunes area but he refused.[227] The judge found that Mr Tallott then 'accompanied' the police off the dunes area and down to the nearby car park and grassed area,[228] where he then appears to have been issued with a move on order.[229]
[227] Primary decision [136].
[228] Primary decision [142].
[229] Primary decision [133], [136], [140].
Ground 10 challenges the judge's finding that Mr Tallott merely 'accompanied' the police off the dunes area. Mr Tallott contends that the judge should have found that he was under arrest for trespass in the walk down to the car park. Ground 11 challenges the finding that as a matter of law, the dunes area was closed to the public within the meaning of cl 5.6 of the Local Law.
In relation to ground 10, the City accepts that Mr Tallott was under arrest for the brief period in which he was escorted down from the hill in the dunes area to the car park area.[230] It appears that the judge's finding that there was no arrest was based on his viewing of a 'corrupted' video of the incident, when a more complete and 'uncorrupted' video of the incident indicated that he was under arrest for that period. Accordingly, ground 10 should be upheld. The City, by ground 1 of its notice of contention, nevertheless contends that even if Mr Tallott were under arrest whilst escorted to the car park area, the judge's finding that there was no false imprisonment may be upheld on other grounds. The notice of contention is addressed later in these reasons.
[230] Appeal ts 21 - 22.
In relation to ground 11 of the appeal, Mr Tallott's arguments are, in effect, that:
(a)the signs were not sufficiently explicit to warrant the finding that the dunes area had been 'closed to the public by a sign' within the meaning of cl 5.6 of the Local Law;
(b)the dunes area does not 'belong' to the City and, accordingly, the City had no power to restrict access to it;
(c)the dunes area was set aside by order for recreation, and, in the circumstances, access to the area could not be the subject of any restriction by the City; and
(d)the relevant City's officer acted recklessly and, with another officer, they effected the outcome of Mr Tallott's arrest with malicious intent.
As to Mr Tallott's first contention, in our view, at least most of the signs surrounding the dune area did not operate to close the dune area to the public for the purposes of cl 5.6 of the Local Law. Entry into such an area without authority in contravention of cl 5.6 is an offence against cl 10.3(1) of the Local Law. Given the penal nature of these provisions, cl 5.6 should be construed as requiring relevant signage to clearly and unambiguously state, by way of a command, that the area is closed to the public, or that public entry into the area without the authority of the City is prohibited. Otherwise, the Local Law would provide for the criminal liability of persons who may have no reason to suspect that they might be committing an offence by going onto public land. Ordinarily, the character of the sign as a command will be made clearer by a statement that entry into the area is an offence, although such a statement will not be required in all cases.
In our view, at least most of the signs surrounding the dune area lacked the required element of command.
It is not just that the term 'please' was used. The use of polite language does not itself preclude the signs operating to close an area to the public for the purposes of cl 5.6 of the Local Law. A sign might use polite language while making it clear that it was prohibiting entry, rather than merely providing advice or making a request which was open to the reader to follow or not at his or her choice.
The example of the sign set out in [257] above does not use the language of command. The heading to the relevant section is headed:
What you can do to Protect the Dunes
This is the language of advice or request. That is reinforced by the fact that one of the specified things which can be done to protect the dunes is to:
Assist with establishment of dune plantings
Clearly, the sign is not conscripting the reader by commanding that he or she must assist with establishment of dune plantings. That is the context in which the following statement, given no particular prominence in the sign, is to be understood:
Please do not climb on to dunes - use beach access paths provided
In our view, an ordinary person reading this sign would not understand it to close the area to the public or otherwise prohibit entry into that area. Nor would he or she understand a command against entry to be contained in a sign which said:[231]
Dune Conservation Area
Please use beach access paths provided
[231] Primary decision [103].
There was in evidence a photograph, taken by police for the purposes of a trial listed for 22 February 2012 which did not proceed when the charge to which it related was discontinued. That photograph depicted a sign which included the statement:[232]
DUNE ACCESS PROHIBITED
PLEASE USE PATHS
That sign is effective to indicate that the dune area to which it applies is closed, for the purposes of cl 5.6 of the Local Law. However, the judge did not make any finding as to whether this sign was present at the time of incident six on 21 October 2013, or the area to which it related. Rather, his Honour's conclusion appears to be based on the operation of signs generally, at least most of which did not contain any relevant command. This sign was not specifically addressed in the evidence relating to incident six. The photographs of this sign are not among the photographs to which the judge refers as being shown to Mr Tallott and containing an 'exhortation to use paths provided for beach access'.[233]
[232] Exhibit 1.107 (Green AB 509).
[233] Primary decision [104]. The photographs indicating that dune access is prohibited appear at pages 778 and 779 of exhibit 1, which are not the pages referred to at [104] of the Primary decision.
The judge's finding of fact that the hill area where incident six occurred was effectively closed to the public by signs was based on an understanding of the legal effect of the signs which was, in our view, incorrect in at least most cases. On that basis, we would uphold ground 11.
Mr Tallott's other points with respect to ground 11 should, however, be rejected.
As to Mr Tallott's second point, it was unnecessary for the dunes area to 'belong' to the City. It was a reserve of Crown land, the care, control and management of which was vested in the City, pursuant to s 46 of the Land Administration Act. The closure of areas for conservation purposes is properly an aspect of the City's functions in the care, control and management of the dunes area. As to Mr Tallott's third point, the judge said, correctly with respect, that the preservation of the environment and physical form of the area were relevant considerations in relation to the enhancement and maintenance of the land for recreational purposes.[234] As to Mr Tallott's fourth point, the matters and evidence to which Mr Tallott has referred in his submissions do not sustain a finding of fact by this court that the City's officers acted recklessly or with malice, and that they had not genuinely formed the view that Mr Tallott was in contravention of the Local Law. That is so even though, as explained above, cl 5.6 of the Local Law was not engaged by the signs.
[234] Primary decision [147].
It is then necessary to turn to the notice of contention. By ground 1 of the notice of contention, the City contends that Mr Tallott's arrest did not constitute false imprisonment for which the City is liable. The contentions are, in effect, that (a) his arrest was lawful and accordingly there was no false imprisonment in the period of his arrest in the walk down to the car park;[235] (b) in any event, Mr Tallott did not suffer any relevant deprivation of liberty and movement in the walk to the car park, and was never taken into custody; (c) there was no evidence to support a conclusion that the City's officers were active in promoting and causing the imprisonment, even if Mr Tallott was falsely imprisoned for the period of the arrest.[236]
[235] The City relies on Soo (625).
[236] Reference is made to Soo (616 ‑ 617, 629).
For the reasons which follow, the first and third of those contentions have been established. It is unnecessary to deal with the second.
According to the evidence that the judge evidently accepted, the City's officers called the police having formed the well‑founded view that Mr Tallott was in an area closed to the public; the City's officers conveyed that view to the police; the area in question was Crown land under the care, control and management of the City; the City's officers did not themselves go to the hill until the police required their presence; the police asked Mr Mitchell to request Mr Tallott to leave the area, and Mr Mitchell complied with that request and asked him to leave; the police also then asked Mr Tallott to leave the area and Mr Tallott refused. The refusal in those circumstances led to the arrest. Those matters do not appear to be challenged by Mr Tallott or, if they are, it has not been shown that they are properly the subject of appellate review. Further, each of Mr Mitchell and the police officer who requested Mr Tallott to leave the area was a 'person in authority' within the meaning of s 70A(1)(a) of the Criminal Code.
The inference to be drawn from these matters is that the police had a reasonable suspicion that the offence of trespass had been committed within the meaning of s 70A(2) of the Criminal Code and that the offence would continue. Accordingly, Mr Tallott's arrest was lawful in accordance with s 128 of the CI Act. As he had been lawfully arrested, there was no wrongful imprisonment in the walk to the car park area.
Mr Tallott, in response to the notice of contention, contends, in effect, that in staying on the dunes area after being requested to leave, he was exercising an honest claim of right within the meaning of s 22 of the Criminal Code. It is unnecessary to consider whether s 22 has any application to an offence of trespass under s 70A of the Criminal Code because, even if it did, Mr Tallott's submission cannot be accepted for two fundamental reasons. One is that, in the event of a prosecution, Mr Tallott would have had an evidential burden of raising a claim of right, with the persuasive burden remaining on the prosecution to rebut it.[237] Those are matters for trial. Under s 128(3)(a) and s 128(3)(b)(ii) of the CI Act, a police officer has the power to arrest a person where the police officer 'reasonably suspects' that the person has committed an offence and that the person will continue or repeat the offence. As noted earlier, the phrase 'reasonably suspects' is defined in s 4 of the CI Act to mean, in effect, that the police officer personally has grounds at the time for suspecting the thing, and those grounds, even if they are subsequently found to be false or non‑existent, when judged objectively, are reasonable. Accordingly, even if s 22 of the Criminal Code were of potential application, it does not assist Mr Tallott in establishing that his arrest, and detention whilst under arrest, was not lawful at the time.
[237] MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230 [39]; Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251 [62].
The second point is that Mr Tallott has not shown, in any event, an arguable basis for contending that his refusal to leave the dunes area was in the exercise of an honest claim of right. The judge's summary of Mr Tallott's evidence appears at [133] of the primary decision. There is nothing in that evidence to indicate that such a claim by Mr Tallott had any foundation or basis independent of a mere belief in the liberty to engage in what is not unlawful, or a mere belief that what he was doing was lawful.[238] Accordingly, s 22 of the Criminal Code does not assist Mr Tallott in resisting ground 1 of the City's notice of contention.
[238] City of Swan [No 2] [60].
Mr Tallott also appears to contend that, in any event, he would have discharged the onus of proving lawful excuse under s 70A(3) of the Criminal Code. Again, however, that would be a matter for evidence at a trial in the event that he was prosecuted for the offence of trespass.[239] It does not address the question of whether he was lawfully arrested and detained at the time.
[239] See generally Wilson v McDonald [2009] WASCA 39 [52] ‑ [63].
Ground 1(a) of the notice of contention should be upheld as outlined above.
We would also uphold paragraph 1(c) of the notice of contention. Paragraph 1(c) contends that there was no evidence to support the conclusion that the City's officers were active in promoting and causing Mr Tallott's imprisonment, even if he was unlawfully imprisoned for the period of his arrest. The video recording makes it clear that senior constable Robinson was exercising her own independent judgment, based on her own observations, in deciding to arrest Mr Tallott for trespass. Mr Tallott's insistence that he be arrested or charged before he would move was a significant factor in the police officer's decision, which was taken independently of the respondents.
It is unnecessary to consider par 2 of the notice of contention in relation to incidents two and four.

Conclusion

Subject to the above qualifications, the trial judge was correct to dismiss Mr Tallott's claims for the reasons he gave. Nothing in Mr Tallott's grounds or submissions gives any reason to doubt the trial judge's ultimate conclusion that Mr Tallott did not establish any of his civil claims against the respondents. That is so even through the trial judge was mistakenly of the view that Mr Tallott was not placed under arrest during incident six and, in our view, misapprehended the legal effect of the signs.
The result is that the appeal should be dismissed.