possession he did SO with notice of the outstanding beneficial interests and it is not disputed that, if the testator had been seised in fee, the defendant's possession and any title to the fee which he might subsequently have acquired would have been subject to these outstanding beneficial interests. Scott v. Scott 1 was accepted without question as authority for that proposition. In those circumstances the defendant would not, of course, have acquired his legal title from the testator or his executors he would have acquired it adversely to them, but having acquired title with notice of the outstanding beneficial interests he would, in equity, be bound by them. But, assuming the testator to have had a lesser interest- but yet one both devisable and assignable--why should the same principle not apply ? If it was devisable then his executors were lawfully entitled, at least, as against all but the true owner, to enter into possession and execute the trusts of the will. But if they were forestalled by a person who entered with notice of the outstanding beneficial interests the principle enunciated in Scott V. Scott (1) would have become as fully applicable as if the testator had been seised in fee. This, in effect, is the substance of the appellants' case, and upon this independent ground I am disposed to think that, even if the defendant had been able to make out a legal title by prescription he would, in the circumstances of this case, have been bound to hold the land subject to the equitable interests created by the testator's will.
One further matter which should be mentioned is the somewhat peculiar situation which arises from the acceptance by the defendant in 1937 of the office of joint trustee of the testator's estate. The defendant in accepting this office must be taken to have acknow- ledged that the land in question formed part of the trust estate. The testator had purported to devise this land by his will and the office accepted by the defendant imposed upon him the duty of executing those trusts SO far as they still remained to be executed. This consideration was sufficient, at least, to cast upon the defendant the onus of establishing in the suit that such lands did not, at that time, form any part of the trust estate and this he clearly failed to do.
For these reasons the appeal should be dismissed.
Appeal dismissed with costs. Solicitor for the appellants, M. D. Roach. Solicitors for the respondents, H. O. Marshall Lupton &Scott.
WESTERN AUSTRALIA. Police (W.A.)-Action against police constable-Acts done in carrying the provisions H.
of the Police Act 1892-1953 into effect-Person suspected of offending against" Act-Statutory protection without "direct proof of malice -Police Act 1892- 1953 (W.A.), 88. 50, 138-Interpretation Act 1918-1948 (W.A.), 8. 47, par. H,
H., a police…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Trobridge v Hardy
Sign in free to access the full text
Details
AGLC
Trobridge v Hardy [1955] HCA 68
Case
[1955] HCA 68
Decision Date
CaseChat Overview and Summary
This case concerned an appeal from the Supreme Court of Western Australia regarding an action brought by a taxi-cab proprietor (the appellant) against a police constable (the respondent) for assault, malicious arrest, and wrongful imprisonment. The dispute arose from the constable's arrest of the taxi-cab proprietor, who was subsequently charged with refusing to give his name and address, a charge of which he was later acquitted. The constable sought to rely on statutory protection afforded by paragraph H of the Second Schedule to the *Interpretation Act 1918-1948* (W.A.), which limits actions against police officers for acts done in carrying out the provisions of the *Police Act 1892-1953* (W.A.), unless there is direct proof of corruption or malice.
The legal issues before the court were whether the constable's actions were taken in "carrying the provisions of the Police Act into effect" within the meaning of the statutory protection, and if so, whether there was "direct proof of malice" against the taxi-cab proprietor. The constable argued that he genuinely suspected the proprietor of an offence and acted in good faith, thus falling within the protective provisions of the *Interpretation Act*. The proprietor contended that the constable's conduct was not a genuine attempt to enforce the law but rather an abuse of power motivated by personal animosity.
The court found that the constable's actions were not done in carrying the *Police Act* into effect. This was because his conduct was not motivated by an honest intention to enforce the law but rather by a desire to punish the taxi-cab proprietor for a perceived slight or affront. The evidence indicated that the constable acted with excessive force and humiliation, even after the proprietor had complied with the request for his name and address and when there was no reasonable grounds for suspicion or arrest. Therefore, the statutory protection was inapplicable, and the proprietor was entitled to pursue his action for damages.
The appeal was allowed, and judgment was entered for the plaintiff for the assessed damages.