Tallott v City of Stirling [No 2]
[2015] WASC 483
•16 DECEMBER 2015
TALLOTT -v- CITY OF STIRLING [No 2] [2015] WASC 483
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 483 | |
| Case No: | CIV:1324/2014 | 15-17 JUNE 2015 | |
| Coram: | CHANEY J | 16/12/15 | |
| 51 | Judgment Part: | 1 of 1 | |
| Result: | Actions dismissed | ||
| B | |||
| PDF Version |
| Parties: | AARON TALLOTT CITY OF STIRLING NEIL EMERY PHILLIP MITCHELL COLIN HANLEY PETER MITCHELL SEAN THOMSON ANDREAS KOLM COLIN MCLEAN AARON PETER TALLOTT HARRY WILKINS |
Catchwords: | Torts False imprisonment Misfeasance in public office Trespass to goods Conversion Conspiracy to harm Collateral abuse of process Statutory immunity from claims in tort Validity of local laws No new principles Words and phrases Obstruction |
Legislation: | Caravan Parks and Camping Grounds Act 1995 (WA), s 5(1), s 28(2)(a), s 29, s 29(1), s 29(3) Caravan Parks and Camping Grounds Regulations 1997 (WA), reg 11 City of Stirling Local Government Property Local Law 2009 (WA), cl 1.7, Part 2, cl 3.14, Part 3, Part 4, cl 5.3, cl 5.6, Part 6, cl 7.2, cl 9.1, cl 9.2, cl 9.3 City of Stirling Parking Local Law 2008 (WA), cl 8.6 City of Stirling Thoroughfare and Public Places Local Law 2009 (WA), s 4.3, cl 4.1 Criminal Code (WA), s 70A, s 255 Criminal Investigation Act 2006 (WA), s 27 Land Administration Act 1997 (WA), s 3 Local Government (Functions and General) Regulations 1996 (WA), reg 29(1) Local Government Act 1995 (WA), s 2.5(2), s 3.1(3), s 3.37, s. 3.39, s 3.42, s 3.46, 3.47(2), s 3.47(2a), s 3.47 (2b), s 3.5, s 9.10, s 9.20, s 9.41, s 9.46, s 9.56 Rules of the Supreme Court 1971 (WA), O 58 r 11 |
Case References: | Bruen v Roe (1665) 82 ER 1095 Davidson v Chief Constable of North Wales [1994] 2 All ER 597 Dickinson v Waters Ltd (1931) 31 SR (NSW) 593 Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133 Hollins v Fowler [1874-80] All ER Rep 118 McKernan v Fraser (1931) 46 CLR 343 Munnings v Australian Government Solicitor [1993] HCA 66; (1994) 118 ALR 385 Myer v Soo [1991] 2 VR 597 Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307 Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204 Robinson v Western Australian Museum (1977) 138 CLR 283 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 Tallott v City of Stirling [2014] WASC 263 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
CITY OF STIRLING
First Defendant
NEIL EMERY
Second Defendant
PHILLIP MITCHELL
Third Defendant
COLIN HANLEY
Fourth Defendant
PETER MITCHELL
Fifth Defendant
SEAN THOMSON
Sixth Defendant
ANDREAS KOLM
Seventh Defendant
COLIN MCLEAN
Eighth Defendant
- Plaintiff
AND
CITY OF STIRLING
Defendant
- Plaintiff
AND
CITY OF STIRLING
First Defendant
NEIL EMERY
Second Defendant
COLIN MCLEAN
Third Defendant
HARRY WILKINS
Fourth Defendant
PHILLIP MITCHELL
Fifth Defendant
Catchwords:
Torts - False imprisonment - Misfeasance in public office - Trespass to goods - Conversion - Conspiracy to harm - Collateral abuse of process - Statutory immunity from claims in tort - Validity of local laws - No new principles
Words and phrases - Obstruction
Legislation:
Caravan Parks and Camping Grounds Act 1995 (WA), s 5(1), s 28(2)(a), s 29, s 29(1), s 29(3)
Caravan Parks and Camping Grounds Regulations 1997 (WA), reg 11
City of Stirling Local Government Property Local Law 2009 (WA), cl 1.7, Part 2, cl 3.14, Part 3, Part 4, cl 5.3, cl 5.6, Part 6, cl 7.2, cl 9.1, cl 9.2, cl 9.3
City of Stirling Parking Local Law 2008 (WA), cl 8.6
City of Stirling Thoroughfare and Public Places Local Law 2009 (WA), s 4.3, cl 4.1
Criminal Code (WA), s 70A, s 255
Criminal Investigation Act 2006 (WA), s 27
Land Administration Act 1997 (WA), s 3
Local Government (Functions and General) Regulations 1996 (WA), reg 29(1)
Local Government Act 1995 (WA), s 2.5(2), s 3.1(3), s 3.37, s. 3.39, s 3.42, s 3.46, 3.47(2), s 3.47(2a), s 3.47 (2b), s 3.5, s 9.10, s 9.20, s 9.41, s 9.46, s 9.56
Rules of the Supreme Court 1971 (WA), O 58 r 11
Result:
Actions dismissed
Category: B
Representation:
CIV 1324 of 2014
Counsel:
Plaintiff : In person
First Defendant : Mr A K Sharpe
Second Defendant : Mr A K Sharpe
Third Defendant : Mr A K Sharpe
Fourth Defendant : Mr A K Sharpe
Fifth Defendant : Mr A K Sharpe
Sixth Defendant : Mr A K Sharpe
Seventh Defendant : Mr A K Sharpe
Eighth Defendant : Mr A K Sharpe
Solicitors:
Plaintiff : In person
First Defendant : McLeods
Second Defendant : McLeods
Third Defendant : McLeods
Fourth Defendant : McLeods
Fifth Defendant : McLeods
Sixth Defendant : McLeods
Seventh Defendant : McLeods
Eighth Defendant : McLeods
CIV 1220 of 2015
Counsel:
Plaintiff : In person
Defendant : Mr A K Sharpe
Solicitors:
Plaintiff : In person
Defendant : McLeods
CIV 1266 of 2015
Counsel:
Plaintiff : In person
First Defendant : Mr A K Sharpe
Second Defendant : Mr A K Sharpe
Third Defendant : Mr A K Sharpe
Fourth Defendant : Mr A K Sharpe
Fifth Defendant : Mr A K Sharpe
Solicitors:
Plaintiff : In person
First Defendant : McLeods
Second Defendant : McLeods
Third Defendant : McLeods
Fourth Defendant : McLeods
Fifth Defendant : McLeods
Case(s) referred to in judgment(s):
Bruen v Roe (1665) 82 ER 1095
Davidson v Chief Constable of North Wales [1994] 2 All ER 597
Dickinson v Waters Ltd (1931) 31 SR (NSW) 593
Haywood v Mumford [1908] HCA 62; (1908) 7 CLR 133
Hollins v Fowler [1874-80] All ER Rep 118
McKernan v Fraser (1931) 46 CLR 343
Munnings v Australian Government Solicitor [1993] HCA 66; (1994) 118 ALR 385
Myer v Soo [1991] 2 VR 597
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204
Robinson v Western Australian Museum (1977) 138 CLR 283
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Tallott v City of Stirling [2014] WASC 263
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
- CHANEY J:
Introduction
1 Since at least January 2011, the plaintiff, Mr Aaron Tallott, has wanted the freedom to stay and sleep in the general area of Scarborough and Trigg beaches. Those areas fall within the City of Stirling. The City, through its officers, have, on numerous occasions, endeavoured to stop Mr Tallott fulfilling that wish on the basis that they consider that he is breaching various local laws. These endeavours have led to conflict between Mr Tallott and the City's officers. The police have become involved and, as a result, Mr Tallott has been served with move on notices. He has then been arrested and imprisoned for breaching those notices. Mr Tallott's relationship with the City and its officers has gone from bad to worse. That led to Mr Tallott instituting the three actions which I am now called upon to decide.
2 The first action commenced by Mr Tallott is CIV 1324 of 2014. In that action, Mr Tallott claims relief in relation to several causes of action arising from six identified incidents. The second to eighth defendants in that action are officers of the City of Stirling. Different officers are said to have been involved in different incidents and relief is sought against them in relation to those incidents with which they were involved. Specific causes of action are pleaded in relation to each incident. The causes of action include false imprisonment, misfeasance in public office, trespass to goods, conversion, and 'combination' which is a reference to the tort of conspiracy to harm the plaintiff. Mr Tallott claims damages in relation to each incident, and relief by way of injunction to prevent the City or its officers from engaging in similar conduct in the future.
3 Matter No CIV 1266 of 2015 is a matter that was originally commenced in the Magistrates Court against the Commissioner of Police, the City of Stirling and four of the City's officers in relation to a seventh incident. The causes of action relied upon are 'collateral abuse of process', misfeasance in public office and false imprisonment. The proceedings were transferred to this court because of the overlap with issues arising in CIV 1324 of 2014. Following transfer of the proceedings to this court, the claim against the Commissioner for Police was discontinued.
4 In February this year, Mr Tallott commenced a third action, being CIV 1220 of 2015. Although commenced by writ, relief was sought pursuant to O 58 r 11 of the Rules of the Supreme Court 1971 (WA) being for a determination as to the validity of the City of Stirling Local Government Property Local Law 2009 (LG Property Local Law). That matter was, with the consent of the parties, dealt with at the same time as the other two actions on the basis that the validity of the LG Property Local Law was relevant to the basis 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.
5 Given the number of separate incidents which need to be considered, and the different causes of action pleaded in relation to each incident, it is convenient to deal with the claims in relation to each incident in turn. Before doing so, however, I propose to discuss the elements of each of the causes of action upon which Mr Tallott relies and to deal with some issues which are common to all or most of the incidents. I will then deal with CIV 1220 of 2015 as to the validity of provisions of the LG Property Local Law.
False imprisonment
6 In relation to some incidents, Mr Tallott claims relief against the City and its officers for damages for false imprisonment. 'False imprisonment' may be defined as an act of the defendant which, without lawful excuse or justification, directly and intentionally or negligently causes the confinement of the plaintiff - Balkin RP and Davis JLR, Law of Torts (5th ed, 2013) [3.24]. In each case in which this cause of action is alleged, the allegation relates to detention by the police following Mr Tallott's arrest for failure to comply with a move on notice issued under s 27 of the Criminal Investigation Act 2006 (WA). The defendants plead by way of defence that they are not liable for that cause of action because they have not caused the confinement of the plaintiff. Mr Tallott's response is that, in each case in which he alleges false imprisonment, he was wrongfully arrested by reason of false information given to the police by the City's officers. He relies upon what Kirby J described as the 'long line of "police informant" cases' (see Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 [152]). Those cases include Dickinson v Waters Ltd (1931) 31 SR (NSW) 593; Myer v Soo [1991] 2 VR 597; and Davidson v Chief Constable of North Wales [1994] 2 All ER 597.
7 In Dickinson v Waters Ltd, a store owner was found liable for false imprisonment where he wrongfully accused a customer of stealing groceries. The customer denied stealing. The police were called and the customer maintained her denial after the shop inspector alleged that she had seen the customer remove the item and place it in her handbag. Following that denial, the manager of the store was asked whether he wished to proceed against the customer, to which he responded 'yes'. The customer was subsequently charged and acquitted, and then brought an action for false imprisonment against the shop owner. The defence was that the defendant was not responsible for the arrest as it was not authorised by the manager, but was the independent act of the police officer. The shop owner was found liable on the basis that it was the decision of the manager to proceed with the charge which led to the arrest.
8 Myer v Soo was another case concerning shoplifting and a false allegation being made by the shop security officer that a customer was guilty of shoplifting. McDonald J said (at 629):
To be liable for false imprisonment it must be the act of the defendant or his agent that imprisons the plaintiff or the defendant must be active in promoting and causing the imprisonment: Aitken v Bedwell (1827) Mood and M 68; 173 ER 1084; Warner v Riddiford (1858) 4 CBNS 180; 140 ER 1052 and Halsbury, 4th ed., vol. 46, paras 1326, 1327. The act of imprisoning a person either personally or by an agent or by being active in promoting and causing that imprisonment thereby is the proximate cause of the imprisonment and is distinguished from the mere giving of information to a police officer or the mere signing of a charge sheet.
9 Davidson v Chief Constable of North Wales was a case in the latter category referred to by McDonald J. That case also involved a wrongful allegation of shoplifting by a store detective which led to the plaintiff's arrest. The police gave evidence that they had exercised their own judgment in arresting the plaintiff on the information from the store detective. On appeal it was found that there was no evidence that the store detective's actions went beyond the giving of information to the police for them to take such action as they thought fit, and that the trial judge had correctly withdrawn the case from the jury.
10 In this case therefore, the questions for determination in relation to the false imprisonment claims are:
(a) did the relevant defendants give false information to the police officers;
(b) did the police officers deprive Mr Tallott of his liberty on the basis of the information provided; and
(c) if so, was the deprivation of liberty undertaken by the police exercising their own judgment as to whether there was reasonable cause for them to do so?
Misfeasance in public office
11 The elements of the tort of misfeasance in public office are that there must be:
(i) an invalid or unauthorised act;
(ii) the act must be done maliciously;
(iii) the act must be done by a public officer;
(iv) the act must be done in the purported discharge of the public officer's public duties; and
(v) the act must cause loss or harm to the plaintiff: see Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307, 370 (Deane J).
Trespass to goods
12 A direct intentional or negligent interference with goods in the possession of another is a trespass. The mere taking or transportation of a chattel may be a trespass without the infliction of any material damage: Penfolds Wines Pty Ltd v Elliott [1946] HCA 46; (1946) 74 CLR 204, 214 (Latham CJ).
13 The interest which the tort protects is an interest in possession, not any other interest such as ownership. An owner out of possession cannot maintain an action for trespass: Penfolds Wines (224) (Dixon J).
Conversion
14 Conversion is an intentional exercise of control over a chattel which so seriously interferes with the right of another to control it that the intermeddler may justly be required to pay its full value. Conversion can only result from an intentional act; it cannot result from negligent loss or destruction. The required intent is to deprive or impair the owner's immediate right to possession: Penfold Wines (229) (Dixon J). This need not be an intention to challenge the owner's right to possession: Penfold Wines (218 - 219) (Latham J), (234 - 235) (McTiernan J). Furthermore, the intermeddler need not be aware that the goods belong to someone else: Hollins v Fowler [1874-80] All ER Rep 118.
15 Conversion by taking or receiving possession involves someone, without lawful justification, taking a chattel out of another's possession without their consent, and with the intention to exercise dominion over it. This tort is complete upon taking or receiving possession. It is therefore unnecessary for there to be any prior demand for the return of the goods: Bruen v Roe (1665) 82 ER 1095. Relevant factors as to whether the tort is made out include the extent and duration of the interference, the harm done to the chattel, and the defendant's intent.
16 Ultimately it is clear that a plaintiff in an action for conversion must show an immediate right to possession at the time of the act of conversion: Penfold Wines (229) (Dixon J). This right of possession must derive from a proprietary or possessory interest in the goods.
Combination: Tort of conspiracy to harm the plaintiff
17 The tort of combination requires an agreement (or 'combination') involving two or more persons. This may occur when two or more persons combine to commit an unlawful act with the intention of injuring. Alternatively, the added element of combination may make an act causing damage, which would not be actionable if done by one person, actionable. These two forms of combination are referred to as 'conspiracy by unlawful means' and 'conspiracy by lawful means' respectively.
18 Both conspiracies by unlawful and lawful means require an agreement between two or more persons. Both conspiracies also require that the agreement be performed in whole or in part: McKernan v Fraser (1931) 46 CLR 343, 407 (Evatt J).
19 The tort, pursuant to either of the conspiracies, also requires that the plaintiff have suffered loss as a result of the defendant's acts in performance of their agreement: Munnings v Australian Government Solicitor [1993] HCA 66; (1994) 118 ALR 385, 389 - 390 (Dawson J).
20 In these proceedings, the plaintiff is alleging conspiracy by unlawful means. If it is alleged, as the plaintiff does here, that the defendants conspired to commit some other tortious act against the plaintiff, the allegation of conspiracy is in all respects an alternative to alleging the other tortious act.
Collateral abuse of the process
21 A claim for collateral abuse of process concerns legal proceedings.
22 The gist of this tort does not lie in the wrongful procurement of legal process. Rather, the gist of this tort lies in the misuse of process predominantly for any purpose other than that which it was designed to serve: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. Such an improper purpose does not need to be the sole purpose. The improper purpose only needs to be the predominant purpose: Williams v Spautz (529) (Mason CJ, Dawson, Toohey and McHugh JJ).
Immunity under the Local Government Act
23 Section 9.56 of the Local Government Act 1995 (WA) (LG Act) provides:
9.56 Certain persons protected from liability for wrongdoing
(1) A person who is -
(a) a member of the council, or of a committee of the council, of a local government; or
(b) an employee of a local government; or
(c) a person appointed or engaged by a local government to perform functions of a prescribed office or functions of a prescribed class,
is a protected person for the purposes of this section.
(2) An action in tort does not lie against a protected person for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act or under any other written law.
(3) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act or under any other written law may have been capable of being done whether or not this Act or that law had been enacted.
(4) This section does not relieve the local government of any liability that it might have for the doing of anything by a protected person.
(5) In this section -
(a) a reference to the doing of anything includes a reference to the omission to do anything;
(b) a reference to the doing of anything by a protected person in the performance or purported performance of a function under any written law other than this Act is limited to a reference to the doing of anything by that person in a capacity described in subsection (1)(a), (b) or (c), as the case may be.
Land tenure
25 The defendants plead in both CIV 1324 of 2014 and CIV 1266 of 2015 that the various incidents the subject of the proceedings took place on land which is under the care, management and control of the City, and alleges for the purposes of s 9.46 of the LG Act, in each action, that the incidents took place on land which is and was at all relevant times the property of the City.
26 Section 9.46 of the LG Act provides:
9.46 Things may be alleged to be property of local government
(1) Land or anything else, that -
(a) belongs or belonged to a local government; or
(b) is or was vested in or under the control or management of a local government,
may be alleged to be or have been the property of the local government, as the case requires.
(2) The property in -
(a) materials of, and matters and things appurtenant to, public facilities; and
(b) buildings, fences, gates, posts, boards, and stones placed on, and anything else erected on a public facility by a person for the time being having the control or management of the public facility; and
(c) the scrapings, soils, sand, and materials of public thoroughfares and other public places,
that are in, or regarded under this Act as being in, a local government's district may be alleged to be the property of the local government.
(3) Anything alleged under this section to be the property of the local government is to be presumed to be the property of the local government unless the contrary is proved.
(4) In subsection (2) -
public facility means a public thoroughfare, bridge, culvert, ford, ferry, wharf, jetty, drain, or other public place.
27 The defendants tendered two certificates pursuant to s 9.41 of the LG Act, signed by an authorised employee of the City, stating that areas depicted on certain aerial photographs attached to the certificate are under the care, control and management of the City. I am satisfied that those maps include all of the areas upon which the various incidents took place. All of those places are land which is the property of the City as defined in s 9.46 of the LG Act.
CIV 1220 of 2015
28 As noted above, CIV 1220 of 2015 was commenced by writ, purportedly pursuant to O 58 r 11 of the Rules of the Supreme Court. That rule 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.
30 The plaintiff filed a statement of claim in support of his claim for a declaration. The document commenced with a dictionary of terms, which might be described as colourful, used in the pleading. The terms used, and the meanings attributed to them, serve to confuse rather than clarify the pleading. It appears from the statement of claim that Mr Tallott's contention is that the whole of the LG Property Law should be declared invalid on the basis that its provisions go outside the powers to make local laws conferred by the LG Act. He also pleads that cl 3.14 of the LG Property Local Law is inconsistent with the Caravan Parks and Camping Grounds Act 1995 (WA) and is therefore invalid on that basis. However, in the submissions which Mr Tallott filed in CIV 1220 of 2015, he attached a copy of the LG Property Local Law on which he identified by deletion those provisions which he contended should be found to be invalid. Those deletions included cl 1.7 (power of local government to hire property), Part 2 (determinations in respect of local government property), Part 3 (dealing with permits), particular words or headings in Part 4, cl 5.3 (powers of authorised persons or surf lifesaving club members), Part 6 (fees for entering local government property), cl 7.2 (applications for consent and applications fees) and cl 9.1, cl 9.2 and cl 9.3 (dealing with obligations to obey lawful directions of authorised persons and disposal of lost property).
31 Order 58 r 11 enables a person to bring a claim for a declaration as to validity of a statutory instrument where the question of construction determines whether the person is entitled to some legal or equitable right. That provision is consistent with the general requirements as to standing in relation to applications for declaratory relief as to validity of a statutory instrument. That question was dealt with by the High Court in Robinson v Western Australian Museum (1977) 138 CLR 283. In order to have standing to bring proceedings for a declaration as to validity, the plaintiff must demonstrate 'an interest greater than that of any ordinary member of the public' (Barwick CJ at 292 - 293; Gibbs J at 302) or that he is 'more particularly affected than other people' (Mason J at 327). As Mason J observed, that rule reflects 'a natural reluctance on the part of courts to exercise jurisdiction otherwise than at the instance of a person who has an interest in the subject matter of the litigation in conformity with the philosophy that it is for the courts to decide actual controversies between parties, not academic or hypothetical questions' (327).
32 Mr Tallott's standing to seek declarations as to the validity of provisions of the LG Property Local Law is confined to those provisions in respect of which he asserts some right and where a determination of validity would particularly affect him in a way greater than it would affect any ordinary member of the public.
33 Taken in isolation, nothing in the statement of claim filed in CIV 1220 of 2015 identifies any particular controversies as to Mr Tallott's rights or obligations which are dependent upon or affected by the various provisions of the LG Property Local Law which Mr Tallott seeks to have declared invalid.
34 It follows, taking CIV 1220 of 2015 in isolation, Mr Tallott has not established standing, either under O 58 r 11 or otherwise, to maintain the proceedings.
35 It is, however, apparent that, in relation to at least some of the incidents which form the basis of CIV 1324 of 2014, the City's officers, and in at least one case the police, relied, when dealing with him, on the contention that Mr Tallott was in breach of particular provisions of the LG Property Local Law. Mr Tallott's assertion in relation to those incidents is that the City officers were acting unlawfully, or that they wrongly advised police officers that breaches of the LG Property Local Law were occurring. As best I can understand Mr Tallott's contentions, in at least some of those cases, the unlawfulness is said to have occurred because reliance was placed by the City's officers on invalid provisions of the LG Property Local Law. Therefore, despite the procedural irregularities by which the issue of validity is raised, having regard to the fact that Mr Tallott is self-represented and has no legal qualifications, it is appropriate that I deal with Mr Tallott's assertion that the provisions of the LG Property Local Law that were invoked in relation to the incidents identified in the other two sets of proceedings were invalid. Of those provisions which Mr Tallott seeks to have declared invalid, the only provision specifically referred to in the context of any of the individual incidents is cl 3.14, which deals with the requirement to obtain a permit to camp outside of a caravan park or camping ground. In relation to incident 6 in CIV 1324 of 2014, reliance was placed by the City's officers and the police on cl 5.6 of the LG Property Local Law, but that is not a provision which, in his written submissions, Mr Tallott contends is invalid.
36 I do note that the validity of cl 9.1 and cl 9.2 of the LG Property Local Law are challenged in these proceedings. Those clauses provide:
9.1Authorised person to be obeyed
A person on local government property must obey any lawful direction of an authorised person and must not in any way obstruct or hinder an authorised person in the execution of his or her duties.
9.2Persons may be directed to leave local government property
An authorised person may direct a person to leave local government property where he or she reasonably suspects that the person has contravened the provision of any written law.
38 The LG Property Local Law recites that it is made:
Under the powers conferred on it by the Local Government Act 1995 and under all other powers enabling it …
39 Clause 3.14 of the LG Property Local Law provides:
(1) In this clause-
'facility' has the meaning given to it in section 5(1) of the Caravan Parks and Camping Grounds Act 1995.
(2) This clause does not apply to a facility operated by the City.
(3) Except in accordance with a determination or a permit, a person must not -
(a) camp on, lodge at or occupy any structure at night for the purpose of sleeping on local government property; or
(b) erect any tent, camp, hut or similar structure on local government property.
(1) Subject to this section, a local government may make local laws for its district under the Local Government Act 1995 for any purpose set out in section 28(2)(a), (b), (c), (d), (e) and (f) as if that purpose were a purpose for which local laws could be made under that Act.
41 Section 29(3) provides that local laws referred to in s (1) may provide that contravention of the local law constitutes an offence and may provide for penalties for those offences.
42 Section 28(2)(a) specifies that local laws may be made to regulate caravan parks and camping grounds and caravanning and camping generally. By virtue of s 29(1), any such local laws are able to be enacted 'as if that purpose were a purpose for which local laws could be made under' the LG Act. Clause 3.14 is clearly a local law which regulates camping within the municipality. The power to make that local law is found in s 29 of the Caravan Parks and Camping Grounds Act.
43 A power to make local laws is also found under s 3.5 of the LG Act. That section empowers a local government to make local laws prescribing all matters that are required or permitted to be prescribed, or are necessary or convenient to be prescribed for the local government to perform any of its functions under the LG Act. The general function of a local government is found in s 3.1 of the LG Act, which is to provide for the good government of persons in the local government district. Section 3.1(3) requires that a liberal approach is to be taken to the construction of the scope of the general function of a local government. Even absent the specific power under the Caravan Parks and Camping Grounds Act, I consider that the power to make cl 3.14 of the LG Property Local Law would exist under s 3.5 of the LG Act.
44 Mr Tallott contended, relying on Swan Hill Corporation v Bradbury (1937) 56 CLR 746, that cl 3.14 of the LG Property Local Law amounted to a prohibition on camping and thus exceeded the power to regulate camping. Properly construed, cl 3.14 does not amount to a prohibition on camping within the local government area. That is because, by cl 3.14(2) the provision is said not to apply to a facility, as that term is defined under s 5(1) of the Caravan Parks and Camping Grounds Act. Facility is defined by the Caravan Parks and Camping Grounds Act as meaning a caravan park or camping ground. The effect of the clause is therefore to regulate camping so as to prevent, without a permit from the City, camping on local government property other than camping grounds or caravan parks operated by the City. The provision is silent as to camping on land other than local government property, and obviously does not apply to caravan parks and camping grounds privately operated within the City. The effect of the clause is simply to regulate those areas within the City where camping is permitted and those where it is not. The decision in Swan Hill v Bradbury has no application to cl 3.14 of the LG Property Local Law.
45 I note in passing that the requirement to obtain a permit to camp on local government property is entirely consistent with reg 11(1)(d) of the Caravan Parks and Camping Ground Regulations, which permits camping on land held by a State instrumentality or under the care, control or management of State instrumentality 'in accordance with the permission of that instrumentality'. A local government is an instrumentality for the purposes of s 11(1) of Caravan Parks and Camping Grounds Regulations - see reg 11(3), Land Administration Act 1997 (WA) s 3 and LG Act s 2.5(2).
46 Accordingly, cl 3.14 of the LG Property Local Law is valid.
47 Mr Tallott contends that cl 9.1 and cl 9.2 are beyond power because 'they confer a power or a duty inconsistent with the power delegated under s 9.10' of the LG Act. There is no merit in that submission. Section 9.1 enables the local government to 'appoint persons or classes of persons to be authorised for the purposes of performing particular functions'. Clauses 9.1 and 9.2 of the LG Property Local Law require compliance with directions of an authorised person. There is nothing inconsistent between the provisions. There is no invalidity in those provisions.
48 Mr Tallott has failed to demonstrate any invalidity of the provisions of the LG Property Local Law which are relevant to the conduct of officers in relation to any of the incidents in the other two sets of proceedings. Action CIV 1220 of 2015 is without merit and must be dismissed.
CIV 1324 of 2014
49 As earlier noted, this action involves allegations of the commission of various torts by various officers of the City in relation to six separate incidents. It is necessary to deal with each of those in turn.
50 The plaintiff was self-represented throughout these proceedings. As might be expected, the pleadings do not distil into crisp causes of action. At the commencement of the proceedings, the defendants sought to strike out early versions of the plaintiff's pleading. The plaintiff conceded that the first version of this pleading should be struck out in its entirety. The second version was the subject of objection and a decision in which I struck out certain portions of the second statement of claim: see Tallott v City of Stirling [2014] WASC 263. Thereafter, to their credit, the defendants took the view that, rather than continue to attack the pleadings, the preferable course was to bring the matter on for hearing as promptly as possible rather than to continue to incur significant costs. The defendants were able to identify the particular incidents in respect of which relief was sought and the causes of action asserted in relation to each, and thus were in a position to meet the plaintiff's case against them.
51 I therefore propose to review the evidence in relation to each incident, and then to examine whether the findings which I make in relation to that evidence support any of the causes of action upon which Mr Tallott relies.
Incident 1
52 Incident 1 occurred on Friday, 13 May 2011.
53 Mr Tallott said that, at about 9.00 am or 10.00 am, he was in a car park at Scarborough Beach. He decided to climb a Norfolk Island pine tree and cut two of the lower branches off the tree so as to drag them to a hill in the sand dunes in order to provide some shade. He said that Mr Phillip Mitchell, the third defendant, who is a security patrol officer employed by the City, arrived at the scene. Mr Tallott said:
I basically told Mitchell to 'piss off' and mind his own business, if we were doing anything wrong then call the police about it.
54 He said that Mr Mitchell then drove about 30 m away and stopped. Mr Tallott said that he then took a friend's mobile phone and began taking pictures of Mr Mitchell 'for identification purposes'. Those photographs of Mr Mitchell sitting in his car were tendered in evidence (TB1 pages 14 - 17). The evidence also included a photograph of Mr Tallott sitting in a tree cutting down a branch, and another photograph of him dragging a branch across the car park area, although it is not clear who took those photographs. Mr Mitchell then left.
55 Mr Phillip Mitchell also gave evidence. He essentially confirmed the account of events as described by Mr Tallott. Phillip Mitchell said that that was the first time that he had seen Mr Tallott. He said that although the damage to the tree was punishable by a $350 fine, he rang his team leader, Kevin Lee, and then the head of security, Mike Newson, who instructed him not to issue an infringement notice but simply to make a report. That report was attached to his witness statement and is consistent with Mr Tallott's account of the events.
56 Mr Tallott said that, at about midday that day, he made himself a cup of tea and prepared some food using 'a medium size pot with holes drilled in the bottom, and a fine mesh top grill … set on top of it'. Mr Tallott set a fire inside the pot and cooked on top of the mesh.
57 Mr Tallott said that at about 9.00 pm, he observed a group of people at a table approximately 15 m away. He observed two City security cars parked nearby. He saw two police officers, Senior Sergeant Stuart Sagar and Constable Dennis Troy Parker, go over to the people at the nearby table. He saw the security officers join with the police. He said that he approached the security officers and the police and asked them to identify themselves. One of those was Mr Neil Emery, a team leader employed by the City. Mr Tallott said that Mr Emery declined to identify himself. Mr Tallott complained to the police about Mr Emery's refusal to identify himself, and Sergeant Sagar said that that was unnecessary. Mr Tallott said that made him 'arc up and start getting a bit annoyed'.
58 Mr Tallott said that Sergeant Sagar then advised him that he would be served with a move on notice and they moved towards where Mr Tallott's van was parked. Mr Tallott said that he told the police officer that he would not move on because he had done nothing wrong and that he was 'sick of these people harassing [him]'. He said that he was subsequently arrested for camping, lighting fires and cutting down branches.
59 Sergeant Sagar was called by Mr Tallott to give evidence. He recalled attending an incident at Scarborough Beach on 13 May 2011 at 9.00 pm in the evening. He said that, on that occasion, he spoke to Mr Tallott. He confirmed that City officers were present. He had no recollection of other people in the vicinity. He said that he observed Mr Tallott's campervan in the car park and formed the impression, from items outside the van and items such as sleeping bags in the rear of the van, that it was being used for camping. He said that there were black charcoal remnants of what could potentially have been a fire. Sergeant Sagar said that he formed a suspicion that an offence of camping, damage to trees and setting fires may have been committed and on that basis issued Mr Tallott with a move on order. He said that the information concerning the cutting down of tree branches had come from a security guard who was at the car park.
60 In cross-examination, Sergeant Sagar said that, after the move on order was served on Mr Tallott, Mr Tallott refused to leave, and was subsequently arrested for breaching the move on order. Mr Tallott declined to put his belongings back into the van following his arrest, or to lock his van in order to make it secure.
61 Mr Tallott also called Constable Parker. Constable Parker said that on 13 May 2011 he was working at Scarborough police station and was patrolling the foreshore. At the foreshore, he said that he saw a Mitsubishi van with its tailgate open. He said that there were 'surfboards scattered around' and a 'fire pit near the left hand sliding door of the van'. He described the fire pit as a metal canister of some kind and said that it had a fire burning in it. Constable Parker said that he was aware from working in the Scarborough area that camping was not allowed at the Scarborough beach area. He said that from his observations he believed the vehicle was camping, a decision he formed from his own observations. He said that he did not speak to any City of Stirling officers at all on that night. He said that, having formed the opinion that Mr Tallott was camping, he did not take any further action until Sergeant Sagar issued the move on notice.
62 Mr Tallott also called Mr Michael Wayne Clark in relation to the events of 13 May 2011. Mr Clark is a resident of Scarborough, and on 13 May 2011 he was going for a run along the coast at about 6 o'clock. He said that on his way back he came across 'some guys that were sitting on the lawn at the bottom car park at Scarborough with a fire going'. He said he observed some people around the fire which was lit on the grass, and Mr Tallott 'off to the left of that'. Mr Clark said that he went home and called the Stirling Council security section and reported the fire which he had seen.
63 The second defendant, Mr Neil Emery, also gave evidence. Mr Emery said that on 13 May 2011, he received a call from a Scarborough resident informing him that a group of campers were at the northern end of the bottom car park in Scarborough Beach Road and had a fire going. Mr Emery contacted another security officer who was on patrol in Scarborough and told him to attend the location. Mr Emery then attended the location himself at about 8.45 pm. He was informed by the other officer that there was no longer a fire burning but there were a group of people camping and consuming alcohol. Mr Emery said that Mr Tallott was nearby but he was not part of the group drinking alcohol. Mr Emery instructed the other officer to contact police who arrived a short time later. Mr Emery said that he told the police that he had been called because of a fire, but on arrival the City's officers had not seen a fire but there were people camping and consuming alcohol which was not permitted in that location. He also informed police that Mr Tallott was present and that they have had previous dealings with him in the morning, that being a reference to Mr Mitchell's report from earlier in the day concerning branches being cut from trees. Mr Emery said that it was the group who were drinking alcohol which was of interest, not Mr Tallott, who was not participating in that activity. Mr Emery said that the police approached the group of campers who were asked to discard their alcohol, which they proceeded to do. Mr Emery said that Mr Tallott then came over and asked for the police's names and numbers in an aggressive manner. Mr Tallott asked the police what the problem was and was informed that it was the consumption of alcohol, camping and lighting of fires. Mr Tallott was told by police that the matter did not concern him and he should go back to where he was and let them do their job. Mr Tallott was then told he would be issued with a move on notice to which he replied that he was not going anywhere. He was then told that he would be arrested and that he should put his belongings into his vehicle and lock it up. Mr Tallott refused to lock his van, and was arrested and taken into custody at 9.30 pm.
64 In cross-examination, Mr Tallott confirmed that he had been arrested for refusal to move on after having been served with a move on notice and that he was subsequently convicted of that offence.
65 In can be seen that there is little substantial dispute as to the facts surrounding the events of 13 May 2011. Perhaps the major discrepancy in the evidence is Sergeant Sagar's lack of any recollection of other campers being involved in the events of that evening. That might be readily explicable by the fact that the other persons involved appear to have complied with police requests quickly, and the issues which might be expected to stay in a police officer's mind are those surrounding the arrest which he effected that evening on Mr Tallott. Nothing much turns on Sergeant Sagar's lack of recollection of other participants.
66 On the basis of all the evidence I find that:
(i) Mr Tallott was observed by Mr Phillip Mitchell cutting down branches from a Norfolk Island tree on the morning of 13 May 2011.
(ii) Mr Phillip Mitchell reported the matter to his superiors and prepared a written report accordingly but otherwise took no further action.
(iii) Later in the day persons were observed by Mr Clark sitting around a fire at the northern end of the Scarborough Beach car park.
(iv) After returning home, Mr Clark reported what he had seen to Mr Emery in the latter's capacity as security team leader of the City.
(v) Mr Emery arranged for another security officer to attend the car park area and then attended himself.
(vi) When the City's security officers arrived they did not observe any fire, but did observe a group of people drinking alcohol in the public area of the car park.
(vii) The reason Mr Emery notified the police was the group of people drinking alcohol, and was not because of anything which Mr Tallott was then doing.
(viii) Mr Tallott then engaged the police in an aggressive manner which led to the police officers issuing him with a move on notice.
(ix) Mr Tallott refused to comply with the move on notice and was arrested on that basis.
(x) Mr Tallott's arrest did not result from any false information provided by the City's officers, and in particular by Mr Emery and Mr Phillip Mitchell to the police. The information as to cutting down branches was true. The police formed their own opinion as to whether they reasonably suspected Mr Tallott of camping and as to whether a fire had been lit.
67 There is no evidence of any agreement by any City officers to do any unlawful act or use any unlawful means to harm Mr Tallott, nor is there any evidence that the City's officers had any intention to cause injury or harm by causing Mr Tallott's arrest. In those circumstances, Mr Tallott's claim based on combination is not made out and must be dismissed.
68 Similarly, Mr Tallott's arrest being a result of a decision taken by the police officers concerned, and effected by them, demonstrates that a claim for false imprisonment against the City officers cannot succeed. This is not a case where the police acted on any false information presented to them which caused them to wrongfully arrest a person. In fact, the only evidence is that the police were informed that there had been difficulties with Mr Tallott earlier in the day when he caused damage to trees. This information was entirely accurate. The claim for false imprisonment must fail.
Incident 2
69 Incident 2 concerns events surrounding the impounding of Mr Tallott's van.
70 Mr Tallott said that he had lived in his van within the vicinity of the northern end of Scarborough Beach car park from about January 2011 to November 2011. He gave the following account of the events surrounding 14 November 2011.
71 Mr Tallott had his van parked on a small patch of land between some trees at the Scarborough Beach car park. He had received what he described as 'unsolicited items' from the City to the effect that his van 'was in jeopardy' and that it was 'abandoned', and other threats that were 'officious in nature'. The day before 14 November 2011, Mr Tallott had seen two of the City security officers, Mr Peter Mitchell and Mr Emery, photographing his van. That night, with a friend, he jacked up the van and placed logs and other things under the wheels to try to avoid the security officers moving his van. On 14 November he left the vehicle there and went to university. When he returned he found that the vehicle had been removed and a handwritten note was left under one of the logs. He produced that handwritten note which read:
Aarron Tallott
Your vehicle has been impounded by the City of Stirling. Please contact Senior Ranger Colin Hanley on [a specified phone number].
72 Mr Tallott also produced a letter dated 10 November 2011 which I take to be what, in his witness statement, Mr Tallott described as an 'unsolicited item'. That letter read:
10 November 2011
Vehicle owner
886BWQ
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.
Yours sincerely
Colin Hanley
Senior Community Ranger
Community Safety Section
73 Mr Tallott was arrested the following day on 15 November 2011 in circumstances which comprised incident 3 and which will be dealt with below. He was held in custody for approximately six weeks. Upon his release, he went to the offices of the City of Stirling. He said that he demanded the return of his van but they refused to 'give it up'.
74 Mr Hanley, the fourth defendant, gave evidence. He produced photos of Mr Tallott's car parked at the lower car park at the Esplanade, Scarborough, not on the tarmac area set aside for parking. It was placed, as Mr Tallott had said, between two trees. He confirmed that he placed the notice of 10 November 2011 on Mr Tallott's car, the vehicle then being in the same position as it had been at on 6 November when the photographs were taken. On 14 November he engaged a contractor to remove Mr Tallott's vehicle. Once the vehicle was towed away, he placed a typewritten letter to Mr Tallott under a log or rock near to where the vehicle had been parked. The letter advised of the intention of the City to impound the vehicle under s 4.1 and s 4.3 of the City of Stirling Thoroughfare and Public Places Local Law 2009 and s 3.39 and s 3.40 of the LG Act. Reference was made to the letter of 10 November 2011 requesting the vehicle be moved within 24 hours. It 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.
75 Mr Hanley said that after the vehicle was towed away, two of the City's rangers went to the holding yard and removed personal belongings contained in the vehicle. Those items were then taken to the City's administration building for storage. Sometime later Mr Tallott attended the City offices and reclaimed the goods which had been removed from the vehicle.
76 Mr Hanley said that, a week or so after the contents of the vehicle had been collected, Mr Tallott contacted him to enquire as to the vehicle's whereabouts. Mr Hanley said that he told Mr Tallott 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 at a price which he believed to be $250.
77 Mr Tallott seeks damages for the loss of the vehicle on the basis of trespassed goods, detinue and conversion. By way of defence, the defendants plead that the fourth defendant was authorised under the provisions of s 3.39 of the LG Act to remove the vehicle. The fifth defendant pleads that it was authorised to sell or otherwise dispose of the vehicle after a two month period pursuant to s 3.47(2) of the LG Act.
78 Section 3.37 of the LG Act provides that regulations may prescribe any contravention of a regulation or local law made under the LG Act to be a contravention that can lead to impounding. For the purposes of pt 3, div 3(4) of the LG Act (being s 3.37 to s 3.48), goods are defined to include a vehicle.
79 By s 3.39 of the LG 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.
80 Section 3.46 of the LG Act provides that a local government may refuse to allow goods impounded under s 3.39 to be collected until the costs of removing, impounding and keeping them have been paid to the local government.
81 Section 3.42 of the LG Act provides that where any non-perishable goods have been removed and impounded under s 3.39, the local government is required to either institute a prosecution against the alleged offender, or give the alleged offender notice that the goods may be collected from a place specified. The notice of 14 November 2011 was directed to compliance with s 3.42.
82 By s 3.47(2a) and 3.47(2b), the local government is authorised to sell or otherwise dispose of non-perishable goods that have not been collected within a period of two months of notice having been given under s 3.42(1)(b). The money received by the local government is then to be credited to a trust fund except to the extent required to meet the costs and expenses incurred by the local government in removing, impounding or selling the goods.
83 The Local Government (Functions and General) Regulations 1996 (WA) prescribe contraventions that can lead to impounding for the purposes of s 3.37 of the LG Act. Regulation 29(1) provides:
(1) A contravention of a regulation or local law made under the Act can lead to the impounding of goods involved in the contravention if -
(a) it occurs in a public place; and
(b) either -
(i) the presence of the goods -
(I) presents a hazard to public safety; or
(II) obstructs the lawful use of any place; or
(ii) where the regulation or local law prohibits or regulates the placement of the goods, the goods are located in a place contrary to that regulation or local law.
(1) A person must not leave an animal or a vehicle, or any part of a vehicle, in a public place or on City property so that it obstructs the use of any part of that pubic place or City property, unless that person has first obtained a permit or is authorised to do so under a written law.
(2) Subject to any other Local Law, a person does not contravene subclause (1) if a vehicle is left for a period not exceeding 24 hours.
85 Clause 4.3 provides that an authorised person may impound an animal or vehicle left in contravention of cl 4.1.
86 In addition to the provisions referred to in the notice of 14 November 2011, the defendants contend that Mr Tallott was in breach of other local laws of the City by leaving his vehicle in the position from which it was removed. One of those is cl 3.14(3)(c) of the LG Property Local Law which provides that, except in accordance with a permit, a person must not park a vehicle on local government property where that vehicle is being used for the purpose of camping or sleeping on local government property. The defendants also contend that Mr Tallott was in breach of cl 8.6 of the City of Stirling Parking Local Law 2008 which provides that, without the permission of the City or unless authorised under any written law, a person must not leave a vehicle in a public place so that it obstructs the use of any part of that public place for a period exceeding 24 hours.
87 Mr Hanley produced his certificate of appointment by the City of Stirling to perform the function of an authorised person pursuant to, among other things, s 3.39 of the LG Act. I am satisfied that he was properly authorised to impound goods pursuant to that section. It was not in issue that Mr Tallott's vehicle was parked in a public place, a matter which in any event was confirmed by the certificate under s 9.41 of the LG Act of Ms Nguyen dated 4 May 2015.
88 As I understand Mr Tallott's response to the contention that the vehicle was lawfully impounded, he contends that the requirement in cl 29(1)(b)(i)(II) of the Local Government (Functions and General) Regulations does not apply because his vehicle did not obstruct the lawful use of the place where it was parked.
89 Similarly, cl 8.6 of the City of Stirling Parking Local Law 2008 is only contravened where the vehicle 'obstructs the use of any part of that public place' and cl 4.1 of the City of Stirling Thoroughfares and Public Places Local Law only proscribes the leaving of a vehicle in a public place 'so that it obstructs the use of any part of that public place or City property'.
90 It can be noted that r 29(1) of the Local Government (Functions and General) Regulations requires that the presence of the goods 'obstructs the lawful use of any place'. It is not confined to the obstruction of a thoroughfare. Nor is cl 4.1 of the Thoroughfares and Public Places Local Law, which proscribes the obstruction of 'the use of any part of' the public place or 'city property'. City property is defined to include property of which the City is the management body under the Land Administration Act. The City was the management body in relation to the reserve on which Mr Tallott's vehicle was parked. Clause 8.6 of the Parking Local Law is directed to vehicles left in a position that 'obstructs the use of any part of' the public place. Mr Tallott's contention that, because the vehicle was not parked on the paved parking area, but over the kerb adjacent to the paved parking area, it was not causing an obstruction is no answer to the application of any of those provisions dealing with obstruction. The place on which the vehicle was parked was clearly a public place.
91 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.
92 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.
93 It is not in issue that the vehicle had been parked in the same location in excess of 24 hours, and indeed, it would appear, for several days before it was impounded.
94 It follows that the City was lawfully entitled to impound the vehicle in the way in which it did. It complied with the relevant statutory requirements. Mr Tallott was on notice of the City's intention to impound the vehicle, and indeed, on his own admission, took steps designed to avoid that consequence such as placing logs and other materials under the vehicle so as to make its removal more difficult.
95 Equally, the City was entitled to dispose of the vehicle when it was not collected within a two month period. Its actions being justified by the LG Act and local laws, the removal of the vehicle, its impounding and its ultimate disposal were all justified by law. That is an answer to all of Mr Tallott's causes of action in relation to incident 2, and the claim in that respect must be dismissed.
96 I would add that there is nothing in the evidence to suggest that Mr Hanley acted other than in good faith, and he would not, in any event, have been liable in tort by virtue of s 9.56(2) of the LG Act.
Incident 3
97 Incident 3 occurred on 15 November 2011, the day after Mr Tallott's van had been impounded. Having lost his place to sleep, Mr Tallott retrieved his swag from his locker at university. He went to the beach at Scarborough, arriving at 2 or 3.00 pm. He walked up a hill in the sand dunes (the hill), 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.
98 Mr Tallott noticed the sixth and seventh defendants, Mr Sean Thomson and Mr Andreas Kolm respectively, both beach inspectors employed by the City, observing him. He said Mr Kolm approached him and told him the area was a no camping area and that he was required to leave. He told Mr Kolm to go away. Mr Kolm responded that he was going to call the police to have him removed. Mr Thomson then ascended the hill and took photos of Mr Tallott. Mr Tallott said that he told them all to go away and that he was lawfully entitled to be where he was.
99 Mr Tallott said that he then saw two or three security vehicles and a four wheel drive vehicle driven by the beach inspectors gathering in a nearby car park. He then saw the police arrive and join the City's officers. Mr Tallott said that he was distressed by the situation. Mr Tallott said that Mr Emery, Mr Thomson and Mr Peter Mitchell, the fifth defendant, and a Mr Harry Wilkins, and a number of other City officers whose identities Mr Tallott did not know, ascended the hill with two police officers, Constable Hannon and Constable Noonan. Constable Noonan issued a move on notice. When Mr Tallott did not comply with the notice, the police officers arrested him and escorted him back to the police van. He said that when they reached the van, Constable Hannon told him that they did not want to arrest him and they just required him to move away from the area. At his request, the police drove him to an address in Ewen Street Scarborough in order to allow him to leave the bird with the friends who had initially given it to him. When they arrived at that address, Mr Tallott said that the police removed his possessions from the vehicle and told him he was 'unarrested' as he had complied with the move on notice. The police told him that if he returned to the beach area, he would be arrested again.
100 Mr Tallott said that he then returned to the beach, telephoned the police and told them that he had returned and that they should come and re-arrest him. The police did return and arrested him for breaching a move on notice. Mr Tallott said that he was remanded in custody for about six weeks as a result of that arrest. The move on notice was tendered in evidence (exhibit 1, page 756). It identifies the conduct giving rise to the order as 'failure to obtain a permit to camp outside a facility'.101 Although Mr Tallott gave no evidence as to his circumstances by which he came to spend six weeks in custody on remand, at [16] and [17] of the particulars of the statement of claim in relation to incident 3 it is pleaded that he 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. That particular is not admitted by the defendant and there is no evidence in relation to it.
102 It is apparent from the transcript of proceedings in the Magistrates Court on 22 February 2012 (exhibit 1, page 191) that the charge brought against Mr Tallott for failure to comply with the move on notice was discontinued on that day.
103 Mr Tallott was cross-examined at some length by reference to a number of photographs of the area in which the hill is located and signs erected adjacent to the dunes in various locations. Included amongst the photos identified by Mr Tallott were photographs showing a wide sandy track leading from the Scarborough carport area to the beach immediately south of the hill (exhibit 1, pages 62, 63, 64 and 65). Those photographs depict a wooden fence along the southern side of the path, but no fencing on the northern side. Photographs taken from the northern end of the car park area show the area of the hill in the background (exhibit 1, page 764) and a fence following the eastern edge of the dune area immediately west of a cycle path, with the ocean in the background. Erected next to the fence, facing the car park area is a sign (exhibit 1, page 763) which reads:
Dune Conservation Area
Please use beach access paths provided
104 Mr Tallott was also shown a number of other photographs showing both in the car park area and along the eastern edge of the dune area which refer to the dune conservation area and an exhortation to use paths provided for beach access (exhibit 1, pages 768, 769, 770, 771, 773 and 777).
105 As noted, there is a fence along the eastern edge of the dune area behind which the hill is located. It appears from aerial photographs tendered in evidence (exhibit 1, page 457) that that fencing is continued for a short distance along the northern side of the sandtrack before curving in a north westerly direction to a point approximately midway between the cycle path and the beach area. It appears that the fence then turns at right angles in a roughly easterly direction through to the cycle path. There appears therefore to be a triangular area which is fenced off but which does not include the hill. Mr Tallott's evidence as to the fencing arrangement was to that effect and I accept it.
106 Mr Kolm and Mr Thomson, both beach inspectors employed by the City, gave evidence. Both said that their role included advising people that they are not allowed in the sand dunes at the Scarborough Beach. They explained that that was by reason both of safety and in order to protect the vegetation on the dunes. In cross-examination, Mr Kolm confirmed that his main role as a beach inspector is to look after the safety of the beach-going public in the water. He said that where they received a complaint of people camping in the dunes, they speak to the campers and 'nine times out of ten they do move on'. Mr Kolm and Mr Thomson confirmed that at about 2.00 or 3.00 pm on 15 November 2011, they observed Mr Tallott with his swag in the dunes. Each said that he was requested to leave but declined to do so. Mr Thomson described Mr Tallott's demeanour as aggressive, threatening and confrontational. Mr Thomson said that they then called security who attended at the site about 10 minutes later. He said that they then went with the security officers back to where Mr Tallott was in the dunes, and spoke to him again but he continued to refuse to leave. According to Mr Thomson, Mr Tallott said something to the effect of 'fine, call the police'. The police were then called and attended at the site. According to Mr Kolm, beach services staff had already spoken to Mr Tallott on several previous occasions about camping in the dunes.
107 Mr Emery confirmed that on 15 November 2011 at approximately 3.20 pm, he received a report from the City's beach inspectors that Mr Tallott was camping in the dunes adjacent to the northern end of the Scarborough car park and was refusing to leave. He said that he then went to the scene at about 4.00 pm and met two other security officers, Mr Peter Mitchell and Mr Harry Wilkins. According to Mr Emery, he informed the other officers that the police had been requested to attend and that they would wait until the police arrived. Mr Emery contacted senior ranger, Colin Hanley to identify the relevant provision of the local laws relating to camping in the dunes, and was told that the relevant provision is cl 3.14 of the LG Property Local Law. As noted earlier in these reasons, cl 3.14(3) provides that, except in accordance with the permit, a person must not camp on, or lodge at, local government property or erect a tent, camp, or similar structure on local government property. The clause does not apply to a caravan park or camping ground, as those terms are defined by s 5(1) of the Caravan Parks and Camping Grounds Act.
108 One of the police officers who attended was Michael Noonan, then a probationary constable. He confirmed that he attended on 15 November 2015 with his supervisor, Senior Constable Ursula Hannon. His recollection was that he was told by his supervisor that Mr Tallott was breaching a local government by-law, although at trial he was not able to recall the specific local law. In examination, Mr Noonan was asked how he knew that the information given to him by the officers of the City was correct. His answer was:
Again, I went by what my supervisor told me. So … it wasn't a case that I went by what I was told by the City of Stirling. I went by what my supervisor told me (ts 103).
109 Mr Noonan confirmed that Mr Tallott was on a sand dune about 50 to 100 m northwest from the northern end of the car park, and that he had his swag laid out in the sand with the hood up. His recollection was that Mr Tallott complied with the move on notice, and he and Senior Constable Hannon provided a lift to Mr Tallott to an address so that he could drop off the bird which he had with him. He thought that Mr Tallott was not under arrest at that stage, but was only arrested later in the day when he telephoned the police to advise that he had returned to the beach in breach of the move on notice. It was at that point that the police returned to the beach and arrested Mr Tallott for breaching the move on notice.
110 Mr Peter Mitchell and Mr Harry Wilkins gave evidence. They gave accounts of the events after they arrived at the Scarborough Beach car park around 4.00 pm on 15 November 2011 consistent with the account given by Mr Emery.
111 Mr Tallott alleges two causes of action in relation to incident 3, being combination and false imprisonment. Neither is made out.
112 None of the City's officers was responsible for Mr Tallott's arrest and subsequent imprisonment. There is some inconsistency in the evidence as to whether or not Mr Tallott's arrest occurred, as he contends, at the hill when he refused to comply with the move on notice, or only later when he returned to the beach and telephoned the police to advise them of his breach of the move on notice as Mr Noonan suggested and the evidence of Mr Peter Mitchell and Mr Emery tends to support. The fact that, once the police removed Mr Tallott from the area by giving him a lift to the address in Doubleview they released him, tends to support Mr Noonan's recollection. On balance, I find 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. Even if that is not the case, there is no basis for holding the City or its officers liable for false imprisonment by knowingly giving false information to police which lead to a wrongful arrest.
113 A move on notice is issued pursuant to s 27 of the Criminal Investigation Act 2006 (WA). An order under that section can be made where the police officer reasonably suspects that the person intends to commit an offence (s 27(1)(e)) or has committed or is committing an offence (s 27(1)(f)). It is an offence against cl 3.14 of the LG Property Local Law for a person to camp on local government property or to erect a tent or camp on local government property. Unrolling a swag and setting up its hood in the dune areas provided a reasonable basis for suspicion that Mr Tallott intended to stay overnight in that location. Mr Tallott's evidence at trial makes it clear that that suspicion was well-founded. There were, therefore, reasonable grounds for the police officers to form a suspicion that Mr Tallott was committing an offence, or at least intending to commit an offence, which is sufficient to justify the issue of a move on notice. Nothing which the City's officers told the police was false. The police were in a position to, and according to Mr Noonan did, from their own observations, form a reasonable suspicion sufficient to issue the move on notice. Mr Tallott's failure to comply with that notice was wholly independent of any action by the City of Stirling. The claim against the City and its officers for false imprisonment must be dismissed.
114 Similarly, the claim for combination cannot succeed. There is no evidence of any agreement between the City's officers to do any unlawful act or to do any act by unlawful means. Nor is there any evidence of any intention on the part of the City's officers to injure Mr Tallott.
115 Regrettably, the detriment which Mr Tallott suffered by reason of his imprisonment can be attributed to his refusal to accept that, by endeavouring to live in the beach area, he is acting in breach of local laws, and to his decision to defy those local laws.
116 There was considerable attention given by Mr Tallott at trial to the issue of whether or not the hill falls within a conservation area, or merely an area set aside for recreation. He relied upon the lack of any enclosed fencing as suggesting that the hill was not subject to any restricted access. It is not necessary to deal with that issue in the context of incident 3. That is because the foundation for the issue of a move on notice was camping on local government property. The prohibition in cl 3.14 of the LG Property Local Law is not limited only to camping on local government property to which public access is restricted. It applies to all local government property (except camping grounds or caravan parks under the care or control of the City). The question of whether or not the particular area was fenced is therefore irrelevant.
117 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.
Incident 4
118 Incident 4 occurred in April 2012.
119 Mr Tallott said that he had managed 'quite well through Summer, and slept on the beach and in the dunes'. By April 2012 he said he was 'getting desperate to find shelter'. He had been shown a cave on Trigg Island located in a rocky area quite adjacent to the water (the cave). He slept in the cave on 18 April and the next morning left his sleeping bag and swag in the cave while he went to university. As he left he noticed a rubbish collector whom he knew as 'Mal' watching him. When he returned to the cave that day he found that his possessions had been removed. The following day he saw a beach inspector, Mr Sean Thomson, on the beach, and asked where his things were. He was told that they had been taken to the Scarborough police station, and he collected them from there a couple of days later.
120 Mr Thomson said that on 19 April 2012 he went to the cave at Trigg Point. He said that someone appeared to have been sleeping in the cave because 'there was rubbish everywhere' and the 'cave smelt rancid'. The matter was reported to others at the City and Mr Thomson said that 'one or some of us' removed the swag, sleeping bag, jacket and some fence posts and stakes from the cave. He said that the fence posts were picket fence posts some of which were burnt. He said that the fence posts came from a house with a picket fence nearby. He confirmed that Mr Tallott approached him the following day and he was advised that his possessions were at the Scarborough police station.
121 Mr Thomson was challenged in cross-examination in relation to his observation that there was 'rubbish everywhere'. As nothing turns on that observation, it is not necessary to deal with whether Mr Thomson's evidence on that point should be rejected because of the lack of photographic evidence of rubbish.
122 On the basis of that evidence, I make the following findings:
(i) After sleeping in the cave overnight on the night of 18 April 2012, Mr Tallott left his possessions, and in particular his swag and sleeping bag, unattended in the cave until his return from university some time later that day.
(ii) Mr Thomson received a report that somebody had been camping in the cave, most probably from the person whom Mr Tallott described as 'garbo Mal'.
(iii) It is unclear how Mal learnt of the fact that someone was camping in the cave and in particular whether it was, as Mr Tallott suggested, because Mal had seen Mr Tallott leave the cave that morning, or whether it was because, as Mr Thomson suggested, Mal had been alerted by a fisherman to the fact that some unidentified person had camped in the cave.
(iv) Regardless of how Mal came to learn of the camping in the cave, there is no reason not to accept Mr Thomson's evidence that, when he observed the items left in the cave, he did not know that they belonged to Mr Tallott.
(v) There was nothing unlawful or inappropriate in the City's officers removing items found unattended on land under the care and control of the City and conveying them to the local police station from where the owner of the goods was able to collect them.
(vi) Mr Thomson acted in accordance with usual procedures by having the goods removed from the cave and taken to the local police station so that they could be claimed by their owner in the event that the owner came forward.
(vii) The cave is on land under the care and control of the City.
(viii) Mr Tallott subsequently collected his goods from the police station and suffered no loss by their removal.
123 In light of those findings, the cause of action of misfeasance in public office cannot be established. 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 in respect of which it was in possession, the active removal of the goods to a safe and secure position was not invalid or unauthorised.
124 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.
125 There is no evidence which would support Mr Tallott's claim of combination to cause harm. There is no evidence of any agreement between Mr Thomson and anyone else. An agreement cannot be inferred from Mr Thomson's evidence that he reported the presence of the items in the cave before taking steps to remove them. 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.
Incident 5
126 There was little evidence about this incident. In his witness statement, Mr Tallott said that in winter 2013, around mid-July, which was the second winter in which he had been an occupant of the cave, he decided to 'prove to' himself that the cave could be made weatherproof. To that end he obtained some sandbags, a small piece of tin roofing, and a broken formworking pole, all of which he used to set out a 'sandbag wall'. He said he placed the sandbags at the entry to the cave where the 'water usually surged up through the channel', in an endeavour to divert it from the entry to the cave. He slept in the cave for one night with that structure in place, but vacated the cave the following night when a 'big storm came in'. At about 8.00 pm that night he checked on the cave and found that his structure had been pushed over by the waves breaking into the cave. Later the next day, 16 July 2013, Mr Tallott returned to the cave to find that the sandbags and other material had been removed. When he made enquiries of City's officers, he was told that it was Mr Colin McLean who had directed removal of the items from the cave. Mr Tallott said that he 'called this thief and told him he had started a war and some other things'.
127 Mr Harry Wilkins, a security patrol officer employed by the City, said that on 19 July 2013, he received a call from a beach inspector concerning a campsite located in a limestone cave. Mr Wilkins said he attended the cave where he observed pieces of corrugated tin, plastic sandbags and tree branches and what appeared to be the remnants of a small fire in front of the cave. He considered the 'sharp bits of tin' dangerous to anyone walking by. He contacted another City officer and was advised that arrangements would be made for the waste items to be collected and disposed of. They were removed accordingly. He said that as the items were being moved, a local resident made a complaint to him about people camping.
128 Mr Colin McLean gave evidence that he had only a vague recollection of a request from security to remove rubbish from a cave at Trigg Beach. His only clear recollection was a subsequent call from Mr Tallott shortly afterwards saying that Mr Tallott had 'declared war on him' or something to that effect. Mr McLean said that he did not know what Mr Tallott was talking about.
129 The causes of action relied upon in relation to incident 5 are misfeasance in public office, trespass to goods, and conversion. None of those causes of action is made out.
130 There is no invalid or unauthorised act identified and no basis for any finding of malice on the part of any City officer in removing the items which Mr Tallott placed at the entrance to the cave. Mr Tallott had no authority to erect a wall across the entrance to the cave and the City's officers were entitled to remove what was assessed to be potentially dangerous (and in any event undoubtedly unsightly) materials from land with respect of which the City has care and control. There is no basis for a claim of misfeasance in public office.
131 Mr Tallott had no greater claim to possession of the items than did the City, which was effectively in possession of and had responsibility for the land on which the items had been placed. It follows that neither the claim for trespass nor conversion is made out.
Incident 6
132 Incident 6 occurred on 13 November 2013.
133 Mr Tallott said that on that day, he found a discarded pole 'just down the road from the Scarborough police station'. He picked up the pole and headed to the hill (being the scene of incident 3). He dug a hole with his hand and placed the pole in the ground at the apex of the hill. He then began to paint the pole. He noticed some beach inspectors noting his location and taking photographs of him. He then noticed City security vehicles arriving in a nearby car park. He observed Mr Phillip Mitchell and Mr Emery amongst the officers gathering. He then 'decided it was time to get dressed for the occasion, put on his sarong and sashes (which he intended to wear for an appeal before a different judge of this court the following day), raised a flag on the pole and 'stood at the apex waiting for the [security officers] to attack'. He said that before long the police arrived, and shortly after they came to the top of the hill with Mr Mitchell and Mr Kolm. He said that Mr Mitchell told him that he was breaching cl 5.6 of the LG Property Local Law. That clause provides that a person must not enter local government property which has been fenced off or closed to the public by a sign or otherwise without authorisation from the City. Mr Tallott said that the police then told him that he needed to move, and that he was under arrest for trespass. He was escorted down the hill to a grassed area where he said the police then 'unarrested him' for trespass and instead served him with a move on notice. Mr Tallott then gave the following account of events:
18. I simply sat there, and sewed up my clothes for the next day, and told the police that the pole was coming with us, and it was going to be an exhibit at trial.
19. The police then said that they were leaving, and if I had not complied with the order I would be the afternoon shifts problem [sic].
20. I was at all times still under the impression I was arrested, and since I did not obey the order, waited for the continuing imprisonment to become a confined space imprisonment.
21. Another patrol van arrived about 20 minutes later, and looked at the move on notice, and drove away.
22. Furious again, that the sepo's had used their invalid powers to procure my imprisonment again, I marched up to Scarborough police station, and demanded to speak to the sergeant.
23. Simon O'rourke then explained that I was no longer arrested, and he called it all off. I explained to him on deaf ears that the sepo's had created a false belief, contravening s 171 of the criminal code [sic].
24. He said he spoke to the sepo's and told them it was about time they used their own 'powers' against me, and that police would be there to supervise those 'powers' being used or something similar.
25. He then told me to go and check s 5.6 of the local government property law 2009, which I did, that being a 'power' relating to being in a 'fenced off' or 'closed' area. Which the area I was was not such a place as they were trying to persuade the police I was [sic].
26. About 2 or 3 hours, after I had been released from my imprisonment, I returned to the beach; and continued sewing my clothes for my appeal [sic].
- (Sepo is the abbreviation used by Mr Tallott to refer to the title of the City's security officers who are sometimes referred to as security patrol officers).
134 Mr Phillip Mitchell recalled incident 6, which his incident report showed occurred on 21 October 2013. I accept that that was the date of the incident, although nothing turns on Mr Tallott's inaccurate recollection of the date.
135 Mr Mitchell said that on that day he observed Mr Tallott on the hill, which Mr Mitchell said Mr Tallott refers to as 'his hill', painting and decorating a pole which he had erected at the highest part of the hill. He said that he formed the view that Mr Tallott was acting wrongfully, first by erecting a structure and second by being on a dune conservation area overseen by the City.
136 Mr Mitchell said that Mr Kolm was at the car park area when he first arrived. Mr Mitchell said that he observed Mr Tallott standing with his arms folded and staring in the direction of Mr Mitchell and Mr Kolm. Mr Mitchell said that he assessed the situation and decided that there was 'no good in [them] going up and causing a confrontation'. One of them called the police, who subsequently attended. One police officer who attended was Officer Robinson, who had had previous dealings with Mr Tallott. Mr Mitchell said that the police officers initially went to the top of the hill, but subsequently Officer Robinson called Mr Mitchell to the top of the hill. He said that Mr Tallott confronted him 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 LG Property 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.
137 Mr Mitchell maintained that account of events when cross-examined by Mr Tallott.
138 Mr Kolm had a very limited recollection of the events of 21 October 2013 and his evidence takes the matter little further.
139 Senior Constable Cecelia Robinson gave evidence on subpoena. She had a limited recollection of the incident. That was no doubt in part because she had, in preparation for the hearing, reviewed her notebook for 13 November 2013, when Mr Tallott had apparently mistakenly advised her the events about which she was to give evidence had occurred. Her recollection was limited to an incident involving a pole on the hill with a piece of cloth or a flag attached to it. She had a firm recollection that the events had occurred within a dune conservation area. That belief was based upon the presence of signs in the area advising of the existence of the conservation area.
140 The only substantial issue of fact in relation to incident 6 is whether or not Mr Tallott was in fact arrested for a brief period during which he was accompanied from the hill to the car park area, or whether he simply accompanied the police at their request so as to enable them to retrieve their move on order book from their vehicle so as to serve Mr Tallott with a move on order.
141 A video of incident 6, apparently taken by the police officer accompanying Constable Robinson, shows Mr Mitchell explaining to Mr Tallott that he was neither permitted to erect a structure in the dunes nor permitted to be in the dune conservation area, and that he was contravening cl 5.6 of the LG Property Local Law. Mr Tallott responded that he considered Mr Mitchell to be trespassing in breach of s 255 of the Criminal Code, and asserting that Mr Mitchell was 'lucky' that Mr Tallott was not using reasonable force to retain his peaceable possession. That assertion by Mr Tallott was, of course, misconceived, because the right to use reasonable force to defend possession is extended under s 255 of the Criminal Code to persons in peaceable possession of a place 'with a claim of right'. Mr Tallott had no claim of right to possession of the hill. Unfortunately, the video of the incident tendered in evidence contained a technical problem. That was that only the audio of the initial portion of the video was recorded, and then was repeated twice during the balance of the video so that what was said by participants during the balance of the video cannot be heard. The point at which the video terminates is after the police officer requires Mr Tallott to leave the hill. Mr Tallott asked 'am I under arrest' to which Constable Robinson responded, 'you are not under arrest'. By that time, Constable Robinson had removed the pole from the sand and asked Mr Tallott to collect his things. The balance of the video comprises Mr Tallott collecting his possessions and then being accompanied from the hill by the police officer. Although it is apparent from the video that some further conversation ensued, the audio of that conversation was not recorded.
142 Having regard to Mr Mitchell's evidence, the video evidence where Mr Tallott was told that he had not been arrested, and the fact that, having removed the pole from the hill and left the dune area, Mr Tallott was simply left by the police in the grassed area, I find that Mr Tallott was not arrested while on the hill and when he accompanied the officers to the grassed area.
143 The causes of action relied upon by Mr Tallott in relation to incident 6 are misfeasance in public office and false imprisonment. The false imprisonment claim cannot 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.
144 The issue, referred to in relation to incident 3, as to whether or not the hill falls within a conservation area or, perhaps more particularly, an area from which the public are excluded, arises again in relation to incident 6. That is because of Mr Tallott's contention that the hill is not 'closed to the public by a sign or otherwise' so that he was not, to the knowledge of the City's officers, contravening that clause. That contention is based on the fact that the hill is not in an area completely enclosed by fences.
145 Clause 5.6 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. The view formed by Mr Mitchell, and conveyed to the police, that Mr Tallott was in breach of cl 5.6 of the LG Property Local Law, was well-founded.
146 The area in which the hill is located is in the vicinity of the boundary between two reserves. One is 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 of Stirling to be utilised for the purpose of 'Recreation'. The other is Reserve 46248 which is the subject of Management Order H539215 by which the Minister ordered that the reserve be under the care, control and management of the City for the purpose of 'Conservation of Dunes and Recreation'. It is difficult to determine with certainty from the available evidence whether the hill lies within one or other, or straddles the boundary between the two. On balance it appears that the top of the hill, and the area between the top of the hill and the car park lie within Reserve 12992.
147 Mr Tallott placed reliance on the distinction between the purposes of the two reserves. As I understand his submissions, they were to the effect 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. I do not accept that submission. The City has responsibility for the care, control and management of the reserved area. 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. Unrestricted access to sensitive environmental areas is not demanded by the specification of recreation as the purpose of the land. It is entirely appropriate for judgments to be made as to the sort of access permitted to particular areas within the reserve in the course of proper management, care and control of the reserve.
148 There is no basis for concluding that Mr Mitchell and Mr Kolm were guilty of misfeasance in public office in relation to incident 6.
Conclusion in relation to CIV 1324 of 2014
149 None of the causes of action in relation to any of the six incidents is made out and matter CIV 1324 of 2014 should be dismissed.
CIV 1266 of 2015
150 The claim in this action arises out of events which occurred on 21 July 2014.
151 Mr Tallott's account was as follows. He awoke on that morning around 7.00 or 8.00 am having slept inside the cave at Trigg Island. He awoke because he was being 'smoked out of the cave' by a fire which had been lit by a friend of Mr Tallott whose name was Jurgen. Jurgen's surname was not revealed in evidence and he was unavailable to give evidence at trial. It is apparent that Jurgen had lit a fire outside of the cave in order to provide some warmth on what was a cold and wet morning. Mr Tallott complained to Jurgen about the smoke in the cave.
152 Jurgen then told Mr Tallott that he needed to come out of the cave because there were some people who had arrived at the scene. Those people were Mr Harry Wilkins and Mr Colin McLean and a third person, whom Mr Tallott described as a 'giant troll-like creature', the identity of whom is unknown. Mr Tallott told Mr Wilkins to 'piss off'. Mr Wilkins then directed him to put out the fire but Mr Tallott replied that 'the rain would put out the fire, and he [Mr Wilkins] should leave the area, as he has no jurisdiction or authority to be doing what he was doing'. The three City officers then returned to the nearby car park. Jurgen indicated to Mr Tallott that he wished to leave, but was prevailed upon by Mr Tallott to stay so as to witness what was to follow.
153 Two police officers then arrived at the car park and came to the beach adjacent to the area of the cave. One of those was Constable Karryn Kerrsmakers. The other was Constable Miguel Rees. Mr Tallott said that Constable Kerrsmakers enquired whether the fire was out, to which Mr Tallott responded, 'yes'. Mr Tallott said that the police told him that the security patrol officers had told them that Mr Tallott was trespassing and that infringement notices would be issued. It is apparent that the police then returned to the car park, but later returned to the beach area and spoke to Mr Tallott again. They told him that they were going to issue a move on notice, which they did. Mr Tallott said that he was then formally charged and arrested for refusing to obey the police officers' order, and he walked back to the van accompanied by the two police officers. He was placed in the back of the police van and was subsequently detained for 'about 30 hours'.
154 Mr Wilkins, who is the fourth defendant in CIV 1266 of 2015, said that he attended the Trigg Beach on 21 July 2014 having received a telephone call from Colin McLean, who had told him that there was a fire burning on the island and he would like assistance from security. He and Mr McLean, as well as one of Mr McLean's co-workers, then walked to the entrance to the cave. Mr Wilkins saw a man crouching outside the entrance to the cave next to the fire. That man was obviously Jurgen. Mr Wilkins said he introduced himself as the City of Stirling security and called out words to the effect 'is that you Aaron inside the cave?' He said that Mr Tallott emerged from the cave and was 'ranting'. Mr Wilkins said that he told Mr Tallott that there were no campfires permitted in the City of Stirling, to which Mr Tallott responded by telling him to go away. He said that Mr Tallott was aggressive and spoke in a raised voice, and kept telling him that he had no authority and to go away. Mr Wilkins decided that he was unable to communicate with Mr Tallott, and the three City officers returned to the car park where they called their head office and the police. Two other City of Stirling officers, Mr Phillip Mitchell and a Mr Luke Evans, attended followed by Mr Emery, who arrived with a copy of the relevant bylaws. The police arrived before Mr Emery did, and Mr Wilkins explained to them that Mr Tallott had a fire which he was refusing to extinguish and that he was being aggressive. The police officers went and spoke with Mr Tallott and none of the City officers accompanied them initially. The police officers then returned to the car park and enquired what the City officers wanted them to do. Mr Wilkins replied that they wanted Mr Tallott to move from the area. Mr Emery then arrived with the bylaws and showed the police officers the bylaws so as to enable the police to satisfy themselves that Mr Tallott was committing an offence. The police officers then returned to Mr Tallott. Mr Emery and Mr Wilkins followed them, standing to one side as the police officers presented Mr Tallott with a move on notice, which he refused to accept. The police officers then escorted Mr Tallott to the car park. Mr Emery and Mr Wilkins walked behind the officers and Mr Tallott and beside Jurgen, who was filming the incident with a video camera. Mr Tallott was then taken from the area in the police wagon.
155 Mr Emery gave evidence to similar effect as that given by Mr Wilkins. He confirmed that he brought a copy of a bylaw to enable the police to assess whether there was a basis for them to issue a move on notice, but he was unable to recall specifically the offence which he identified. He said that the police read the document and 'said that's fine'. As both Mr Wilkins and Mr Tallott said, Mr Emery then walked with Mr Wilkins behind the police officers to the position where they spoke to Mr Tallott.
156 Mr Colin McLean, the third defendant in CIV 1266 of 2015, also gave evidence. He describes himself as the team leader for the 'beach auxiliary waste collection'. He said that he was working at the shed in the Trigg Beach car park that is used by waste collection staff when he was approached by a man who had been walking up the beach and who told him that he could see smoke belching out of the rock area known as the cave. Mr McLean then called security and about 10 or 15 minutes later, security officers, including Mr Wilkins, arrived. Mr McLean accompanied Mr Wilkins to the cave where they saw two people, Mr Tallott and another person. He said that Mr Tallott refused Mr Wilkins' request to extinguish the fire, saying that the rain would do it. Mr McLean said that Mr Tallott then became very aggressive and demanded their identification. When Mr McLean showed Mr Tallott his badge, Mr Tallott said 'so you're fucking Colin McLean, you fucking scumbag you'. He said that Mr Tallott refused more than once to extinguish the fire so they left the area. Mr McLean did not participate further in the matter.
157 Mr Phillip Mitchell is the fifth defendant in CIV 1266 of 2015. He gave evidence that he attended at the Trigg car park area having heard over the radio in his patrol car the cleaners' call to Mr Wilkins about a fire at the Trigg Island. He went to the car park to see what was going on. Other than observing the events described by other witnesses from a distance, Mr Mitchell did not participate in the dealings with Mr Tallott, and did not at any time speak to him.
158 Mr Tallott called evidence from Constables Kerrsmakers and Rees. Constable Kerrsmakers confirmed that the City of Stirling officers showed her bylaws in relation to camping fires. She was asked whether she could describe any other information provided by the City's officers which may have led her to believe that there was an offence taking place. She responded:
Basically I was just acting on their authority for the bylaws that had been - the offences that had been committed.
- She had earlier said that she took the City of Stirling officers 'on their word that these bylaws were correct'. In cross-examination she confirmed that she was shown a bylaw which specified that it was contrary to the bylaw to light a fire.
159 Constable Rees confirmed that after an initial discussion with Mr Tallott, he and Constable Kerrsmakers returned to the City of Stirling officers and were shown 'some kind of bylaws'. He said that he was advised that a fire had been lit and that the City of Stirling officers had advised Mr Tallott to leave the area. He said that he accepted what the City's officers told him. He said that he was advised by the City of Stirling that Mr Tallott was trespassing, or was accused of trespassing, and that he acted on that advice. That matter was clarified in cross-examination when Constable Rees confirmed that he was shown a bylaw which made it an offence to light a fire without a permit at the beach area, and to camp on the beach without a permit. He said that the word 'trespassing' was not specifically used by the officers but that he 'understood from the bylaws … that once an offence had been committed … the accused could be told to leave and if they refused to leave then they were trespassing'.
160 The video taken by Jurgen was produced in evidence. It covers only that portion of the encounter when the police returned to the beach to serve a move on order on Mr Tallott. The video confirms that Mr Tallott enquired what offence he was said to be committing, to which Constable Kerrsmakers responded, 'trespassing'.
161 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 LG Property 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 LG Property 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 LG Property Local Law. Although no witness was able to identify precisely which provisions of the LG Property 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 LG Property Local Law sufficient to justify them issuing a move on order, and they formed that view by themselves reviewing the LG Property Local Law and after having spoken to Mr Tallott about his activities.
162 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 LG Property 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.
163 I accept that the police officers acted on the request of the City's officers. I do not accept, however, that the City's officers gave any false information to the police officers. The information which they conveyed was true, and the police made their own assessment of that information and, on that basis, made a decision to serve a move on order on Mr Tallott. It was Mr Tallott's refusal to comply with that order which led to his arrest. There is no basis to conclude that the City's officers acted with malice in relation to this event.
164 The causes of action relied upon in CIV 1266 of 2015 are collateral abuse of process, misfeasance in public office and false imprisonment. None of those causes of action is made out.
165 Collateral abuse of process is not made out because neither the City nor any of the other four defendants were parties to any court process. As noted above, the tort of collateral abuse of process does not lie in the wrongful procurement of legal process, but the use of process for some improper purpose. There is, in any event, no evidence of any court process resulting from the events of 21 July 2014.
166 The claim in relation to misfeasance in public office fails due to the absence of any finding of malice on the part of the City's officers or indeed of any invalid or unauthorised acts on their part.
167 The claim for false imprisonment fails 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 and not as a result of the allegations as to offences under the LG Property Local Law.
Conclusion
168 These proceedings were undoubtedly instituted because of the sense of grievance which Mr Tallott has in relation to his treatment by the City of Stirling and its officers. He has interpreted the constant attempts by the City's officers to deal with his conduct as demonstrating malice. He has, perhaps understandably, drawn inferences of malice from the fact that, in relation to a number of incidents, the number of officers involved in dealing with him seems excessive. He has seen the involvement of the police, at the request of the City's officers, as designed to bring about his arrest and detention. That perspective is gained against a background of Mr Tallott's belief that he should be entitled to live as he chooses in the area of Scarborough and Trigg beaches. He does not recognise the authority of the City to regulate conduct on that land. He has undoubtedly demonstrated that belief as to lack of authority by conduct which at times, even he accepts, is aggressive, offensive and confrontational. As the exchanges captured on video demonstrate, his confrontational conduct has aggravated the City's officers. It may be that, as a consequence, the way Mr Tallott has been treated by the City might, at least in some cases, be seen to have been heavy handed. That response is, however, unsurprising in the context of Mr Tallott's persistent refusal to accept the City's regulatory authority and the confrontational way he has dealt with its officers. Whilst it may be that Mr Tallott has, in at least some of the incidents of which he complains, been treated in a heavy handed way, in no case do I consider that the City's officers acted with malice, and in no case does his treatment give rise to a cause of action for damages or for any injunctive relief.
169 All three actions must be dismissed.
Final observation
170 I think it appropriate to record that the court, and indeed Mr Tallott, was greatly assisted by the approach to this litigation taken by the defendants, and their solicitors and counsel. After some initial appropriate applications in relation to Mr Tallott's early statements of claim, the defendants adopted a position that, if the matters were not resolved through mediation, which was attempted, they should be brought on for trial as quickly as possible with minimal interlocutory disputation. Very considerable assistance was provided by the defendants, through their solicitors, in the preparation of trial bundles. By doing so, the matter was prepared for an orderly trial in a way which would have been difficult if not impossible if left to a plaintiff in person with very limited resources. That was to Mr Tallott's advantage. The defendants' case was presented fairly with no attempt to take advantage of Mr Tallott's inexperience in the law. Whilst the defendants, their solicitors and counsel actively and firmly presented their defences to the claims, they did so as model litigants. That approach is to be commended. While the defendants' approach to this litigation does not change the merits of their defences, it greatly enhanced the efficiency of the trial process and provided the plaintiff with a full opportunity to present his claims.
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