Webster & Anor v Lampard

[1993] HCATrans 97

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P27 of 1992

B e t w e e n -

ANTHONY REGINALD WEBSTER and

ROSELYN WEBSTER

Appellants

and

DAVID LAMPARD

Respondent

MASON CJ
DEANE J

DAWSON J

TOOHEY J

McHUGH J

Webster(2) 1 29/4/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 APRIL 1993, AT 10.23 AM

Copyright in ~he High Court of Australia

MR s.c. CHURCHES:  I appear for the appellants,

Your Honours. (instructed by Duckham Thorpe)

MR G.J. O'HARA:  I appear for the respondent in this matter,

Your Honours. (instructed by Kott Gunning)

MASON CJ: Yes, Mr Churches.

MR CHURCHES:  Your Honours, we for the appellants submit

that, in very general terms, the general principle

of the law of evidence is with us in this matter

but the reason for the - and I apologize for it -
perhaps overly extensive outline is that we have to

concede that there has been 200 years of wrangling

with this matter, very rarely actually touching

directly on the question of onus before the Court

today, but dealing with these general protection

provisions.

There is a great deal of case law,

particularly in the 19th century, dealing with the
issue of these limitation provisions and we have to

concede that there are just a few cases of what we

would say are cases of considerable weight against

us.

I say that in the context of this Court's

position now as one in which there is no binding

authority as such upon the Court, but we do concede

cases of weight which the appellants must address
and consequently we set out to illustrate the
points of principle which we say are paramount and

will rebut any binding application of those cases,

and the outline, which I understand is before the

Court, sets out to explain how the error has intruded into those cases which are Newell v Starkey in the House of Lords in 1920; G Scammell &

Nephew Limited v Hurley in the English Court of

Appeal in 1929; and Hamilton v Halesworth in this

Court in 1937. They are the principal cases.

Your Honours, without going over the facts

unduly, I think it appropriate though to open by

noting that this case arises out of a claim by the appellants, then plaintiffs, against the defendant respondent, in particular for three matters:

wrongful threat of arrest, wrongful eviction from a

leasehold and trespass, and they are set out in the

appeal book at page 7. And then, further to the

pleadings, the respondent defendant, by reference

to the two statutory limitation provisions, that is

paragraph H, relating to the Police Act of Western Australia and section 47A of the Limitation Act of

that State, the respondent asserted, and this is

set out in the appeal book page 15, that:

Webster(2) 2 29/4/93

he was acting in pursuance of his public

duties as an officer in the Western Australian

Police Force in carrying into effect the provisions of the Police Act -

and he further asserted that he:

was acting in good faith and without

corruption or malice.

And at appeal book page 16 in the reply, the

appellants deny that the respondent was "acting in

the execution of his duty" and that therefore the

respondent could not have the protection of those

two limitation provisions.

The case that now arises in this Court comes

about from the decision in the Full Court of the

Supreme Court in Western Australia; in particular, on the decision on Justice Ipp who wrote for the

court, relying on two cases to which I have just

referred Your Honours, the English Court of Appeal

in G. Scammell, this Court in Hamilton v

Halesworth, and further, there was a reference to

the decision of this Court in Trobridge v Hardy.

The Full Court opined that the effect of those cases was that the onus of proving that the

respondent was not acting in pursuance of his

duties lay on the appellants and, of course, the

importance of the acting within pursuance, or in

the performance of his duties, is, in our

submission, because that is the trigger which

allows these two limitation provisions and, indeed,

all similar limitation provisions to operate, and

the Full Court said that the onus lay with the

appellants to disprove that.

That is set out in the appeal book, setting

out the Full Court decision at page 178, line 1.

The reference then at line 13 is to Scammell,

appeal book page 80, line 1 referring to Hamilton v

Halesworth, page 181 referring to Trobridge, and

then page 182, and further at page 183. That is

the concluding portion of the Full Court decision,

at lines 5 to 12 and there Justice Ipp referred to

Trobridge v Hardy, and further Scammell and then Hamilton; although it is fair to say that he was

referring to Trobridge there on the question of

mere belief, while he used Scammell and Hamilton as

the basis for his decision on onus.

We feel it appropriate to immediately turn to

the question of reliance on Trobridge, which is at

page 181 of the appeal book, because, in our

submission, Your Honours, that is, with great

respect, misplaced and that Trobridge can not be

Webster(2) 3 29/4/93

seen as any authority for the respondents in this

matter whatsoever.

The facts in Trobridge are relatively simple.

A police officer, described by Justice Kitto, as "boorish", determined to arrest a taxi driver, effectively on a trumped-up charge, so that it was false arrest and imprisonment, were the issues that

later came before the Court.

The reference to Trobridge at page 181 of the

appeal book, in our submission, should be seen in

the context of what Justice Fullagar was saying in

Trobridge at that point - it is 94 CLR 156 - that

Justice Fullagar was wrestling with the question of the standard of proof, not upon whom the onus lay. That is the thrust of what His Honour was dealing with there. It is also noteworthy that prior to

that extract at page 156, Justice Fullagar had

expressly agreed with Justice Kitto that the case

did not rest on proof of malice, though, of course,

he said that on the facts found by the trial judge,

that the case showed sufficient evidence, clearly,

for acceptance of proof of malice.

But rather, Justice Kitto said, and

Justice Fullagar was expressly agreeing with it, the case did not attract the working of the limitation provision which was, of course, paragraph H, the same one before the Court today.

He said that it just did not attract the operation

of paragraph H. So that we say that Justice

Fullagar did not address the question of onus at

all, and that the final three lines on appeal book,

page 181, cannot be related to Trobridge.

Further, Your Honours, on the matter of the decision in Trobridge, we note lines 5 to 9 on

appeal book page 183, and refer to what

Justice Kitto actually said at pages 161 and 162.

In our submission, the thrust of what His Honour
said has been rather reversed.	In our submission,

what Justice Kitto was saying was that the

limitation provision cannot be applied unless

firstly there is such a belief by the defendant

officer as to a state of facts which, if such facts

existed, would being him within the operation of

the statute.

Secondly, that the defendant honestly intended, by doing what he did, to put the law into

force. Then that leads up to Justice Kitto's words

at page 162. On that footing, paragraph H was

inapplicable to the case and proof of malice did

not need to be decided.

Webster(2) 4 29/4/93

In our submission, that leaves us in

particular with Scammell and Hamilton v Halesworth

as the cases which remain underpinning, or

purportedly underpinning, the decision of the

Full Court and, in our submission, this case should

now be determined on general principles as to onus

and as the question of onus is worked out in the

light of provisos and exemptions. In that context,

we note that it is important, we submit, to

remember that this case arises out of a claim by

the appellants against the respondent, a member of
the West Australian police, in trespass, wrongful

eviction, and the threat of wrongful arrest.

Your Honours, that takes us to the outline and

our submissions on the legal burden in general and

where the legal burden rests. That is, of course,

the burden which does not change during the course

of a trial, it is the matter which either party

must make out to win their day and we refer firstly

to Currie v Dempsey, a decision of the New South

Wales Court of Appeal, and Justice Walsh then in

that court. We refer in particular to page 125 of

His Honour's decision.

The decision in Currie v Dempsey arose out of

liquor licensing provisions in New South Wales and

the question of application for a liquor licence,

certain matters having to be made out by an

applicant pursuant to section 139 of the Liquor

Act, while the following section, 140, made
provision for particular objections to be made out.

The question arose as to where the onus lay between

the applicant and the objector. The key words, in

our submission, are at page 125, a little over

half-way down the page.

His Honour firstly explains the two different

concepts, perhaps, in commonplace usage, of the

burden of proof, and of the burden of proof,

meaning, as he says:

the burden ..... as it has been called, of

establishing a case, whether by preponderance

of evidence, or beyond a reasonable doubt;

and he went on to say -

In my opinion, the burden of proof in the

first sense lies on a plaintiff, if the fact

alleged (whether affirmative or negative in

form) is an essential element in his cause of

action, eg, if its existence is a condition

precedent to his right to maintain the action.

The onus is on the defendant, if the

allegation is not a denial of an essential

ingredient in the cause of action, but is one

Webster(2) 5 29/4/93

which, if established, will constitute a good

defence, that is, an "avoidance" of the claim

which, prima facie, the plaintiff has.

In our submission, that reflects exactly the facts before the Court today, that we have claims in tort set out in the pleadings, trespass,

wrongful eviction, and so forth. We have then on

the part of the defence, now respondent, defences

based on completely separate statutory
provisions - a Limitation Act and the limitation in

the Police Act separate again. They have nothing

to do with the causes of action claimed by the

plaintiff. They go nowhere to the elements of the

claims. They are quite separate, in our

submission. They adapt themselves entirely to the

words of Justice Walsh. Similarly, the decision of

the New South Wales Full Court, the Supreme Court,

in Davis v Pember, the decision of Justices Owen

and Collins to which we have referred at page 80.

Davis v Pember was a decision on town planning

and the question of whether the County of
Cumberland Planning Scheme Ordinance in clause 29

was so inclusive that its words:

Land ..... shall not be used without the consent

of the responsible authority -

whether they should be juxtaposed with clause 32,

clause 32 providing that -

an existing use of land may be continued.

Those two clauses are set out at page 79 of the decision, No 2 of the list of authorities, and Their Honours said at page 80 about two-thirds of the way down that page:

Clause 29 lays down a general rule and to that

general rule cl 32 provides an exception or

qualification -

it was separate and removed.

In general terms we refer to Gillies then in

the Law of Evidence. Page 49 of the second edition

sets out the general principle.

We note the cases, particularly in this Court,

Your Honours, Dowling v Bowie and Vines v

Djordjevitch, which go to the onus remaining on the

plaintiff. If the proviso or exception is part of

the cause of action itself the onus then remains on

the plaintiff. In the words of the Chief Justice

Justice Dixon at page 140 of 86 CLR in Dowling v

Bowie, the question there was whether the

Webster(2) 6 29/4/93

prosecution had resting upon it the onus of

establishing that the person to whom liquor was

sold was not a person deemed to be a half-caste

under the then Northern Territory Aboriginal

Ordinance.

His Honour referred to the question of what

was an essential element of the offence constituted

by section 141, and the question of aboriginality

or half-caste determination was seen to be an
essential element. It was part of the offence of

selling liquor in certain proscribed circumstances.

And similarly in Vines v Djordjevitch, No 4 on the

list of authorities, that arose out of section 47
of the Motor Car Act of Victoria providing for
suing a nominal defendant when the identity of a

motor vehicle in an accident could not be

established, and the condition which allowed for

suing the relevant Minister of State was said by

the Court to be a condition precedent. It was

perhaps easiest to see at this remove - it was

actually physically part of the section.

We do not say that is necessarily the sole

test, but it plainly was a condition precedent to

the claim, not something removed as is the defence

on our submissions in this case. And then,

similarly, the decision of the English Court of

Appeal in Abrath's case, No 5 on the list of

authorities. In that case Lord Justice Bowen

determined that, with respect to a claim for

malicious prosecution, the elements of the action are that the defendant has no reasonable probable

cause for doing what he did, so that was an

integral part of the action and the onus lay with

the plaintiff in that case.

But we submit that our case is a different one

because the statutory provisions, paragraph Hand
section 47A are not mere provisos, part of the

cause of action, they are separate and discrete and

they are not related direction to the cause of

action at all, and we refer there to Phipson on

Evidence, a text which has been cited approvingly

by this Court previously in this area, and then to

the South Australian Full Court decision in Kyloh v

Wilsen, where we refer in particular to the

decision of Mr Justice Poole, with whom, I think it

is fair to say, that the then Chief Justice,

Chief Justice Murray agreed. His agreement at the

end is merely the words, "I agree", but I assume he

agreed with both his brothers.

This was a case which arose out of assault

committed by a police officer in the course of

picking up an inebriated individual - the

plaintiff - and arises under the protective

Webster(2) 29/4/93

limitation provisions of section 116 of the then

South Australian Police Act - similar, although not

identical, to paragraph H. The key words in the

case, in our submission, are at page 504 of

Justice Poole's decision where he says:

Now, the statutory protection afforded by

section 116 is matter of defence, and it is

upon the defendant to establish those facts

which in law make it an effective defence.

The defendant must establish those facts which

show that the acts of which the plaintiff
complains were, to use the words of the

Statute, done by him "in pursuance" of the

Act; that established, then the plaintiff must

show that notice of action was given and that

the action was commenced within the time

limited, or he fails -

And we refer to that later in the outline.

The onus, we submit, changes back, with respect, to

subsequent matters in the proviso. But in our

submission Kyloh v Wilsen is exactly to point in

this matter. Having checked the citator I can find

no later Australian reference to Kyloh v Wilsen, it

is one of those things that seems to have dropped

out of sight but, in our submission, it is exactly

to point.

Having referred to it in particular at

page 504, Your Honours, I note further the material in the judgment at page 508 just below the half-way
point on that page, further in Justice Poole's

decision. He talks about what is required to

justify the constable's act in having assaulted the

plaintiff and he finishes up, towards the bottom of

page 508:

To entitle him -

that is, the defendant police officer -

to notice, it would be necessary to prove

either these facts -

the facts he has set out above -

or honest belief that a state of things

existed which established them.

DEANE J:  Mr Churches, can I take you right back? I mean,

what do you say the legal position would have been

if what the respondent believed to have been the

facts were the facts?	I mean, must not that be the
starting point?

Webster(2) 29/4/93

MR CHURCHES: In our submission, Your Honour, that is not

sufficient because some of the case law, and we

submit that it is a case law of weight - - -

DEANE J: Well, it may not be sufficient, but is it not the

starting point?

MR CHURCHES:  It may be a staring point, Your Honour, but of

equal weight with a belief as to facts, which if

facts were correct, would exculpate the officer,

should also be a belief that what he is doing is an

honest attempt to perform the law. They are not

quite identical tests, in our submission.

DEANE J: But, I mean we have to work out where you say we

start. Now, as I follow it, and I have not read

the evidence in detail, the respondent's approach

was that he believed your client was the tenant, he

believed your client had failed to comply with the

requirements of a public authority, and he believed

your client was in breach of the conditions of the

lease. But there is nothing to suggest that he

believed that the lease had been terminated. Is

that right?

MR CHURCHES:  I think that is a fair summation, yes,

Your Honour.

DEANE J: Then, must not the starting point be that on the

facts, as he believed them, your client was

entitled to possession of the premises unless and

until the lease was terminated? I mean, do not

agree if it is wrong, I am just asking you.

MR CHURCHES:  I think the problem there, Your Honour, is

twofold. I am not sure that the evidence so far,

in affidavit form, goes so far as to say that the

respondent officer believed that the tenancy was

still on foot.

DEANE J:  No, what I said was, he believed your client was

the tenant, he believed that your client was in

breach of the requirements of some statutory

authority, and he believed your client was in

breach of conditions of the lease, but there is

nothing to say that he believed that the lease had

been validly terminated.

MR CHURCHES:  Yes, I think that is correct, Your Honour,

yes. That would then take us to section 82B of the

western Australian Police Act, which my friend has

referred to in his list of authorities.

DEANE J: But I am not suggesting that you should approach

it on the basis of my cursory reading of the facts.

I am simply suggesting that we need to put the

Webster(2) 9 29/4/93

case, or you need to put the case, in its proper

factual context before one can really proceed to

examine how these ..... provisions work in the

circumstances.

MR CHURCHES: Well, as I understand it, Your Honour, the

respondent police officer has asserted, and

provided some evidence, to the effect that he

believed that he had the power, pursuant to

section 82B of the Police Act, to warn the

appellant, the male appellant, that if he did not

leave he would be committing an offence and subject

to arrest. That goes to the respondent officer's

state of mind.

DEANE J: But does not one start with the facts. I mean, if

for example you go to page 178, where Scammell is

quoted, the opening part of that is:

"In my opinion, when a defendant appears to be

acting as a member of a public body under

statutory authority -

Now, is there anything here that indicates that a

police constable who orders a tenant to leave the

premises under threat of criminal proceedings is

acting under statutory authority? If there is,

what is it?

MR CHURCHES:  Your Honour, as I understand it, the answer to

that is that the police officer felt that he had

statutory powers pursuant to 82B to warn people off

premises - let me rephrase that. Because police

officers have a power under 82B to warn people off,

he felt further armed in making that warning.

DEANE J: But police officers have not got a power, under

any section, to warn a tenant off the premises of

which he is tenant. I mean, can I take you back to Trobridge v Hardy, at page 161, where Justice Kitto

says: 

The phrase "done in carrying the Police Act into effect" imports more than a belief in

facts which, if they had existed, would have

meant that the plaintiff had committed an

offence against the Police Act. It cannot be

applied unless, having such a belief - Now, on your argument, did the police constable

here have a belief of the existence of facts which,
if they had existed, would have entitled him to

remove your client from the premises of which he

was tenant?

MR CHURCHES:  Your Honour, our understanding is that he has pleaded that he believed the tenancy -

Webster(2) 10 29/4/93

McHUGH J: Well, he certainly did not plead anything about

the tenancy. If I might interrupt you to say, I

would have thought this case went wrong when you

did not make an application to strike out the

defence. I do not know what the pleading practice

is in Western Australia, but I must say it does not

seem to me that the defence is pleaded here in

accordance with the way defences of this sort

should be pleaded.

The moment you brought an application to

strike out the defences, one would have at least

had an issue as to what had to be pleaded.

MR CHURCHES:  Yes, Your Honours, I take the point at

page 15, the defendant has merely stated that he

was ttacting in pursuance of his public dutiestt, and

ttwas acting in good faith and without corruption

and malicett,

DEANE J:  If I could just add one thing. I am not trying to

confuse the case, but if you look at that sentence

from Justice Kitto's judgment in Trobridge, the

bottom of page 161, and also the sentence in

Sca.mmell, it indicates a two stage process. One is

the defendant brings himself within the reach of

the section; the second is, having brought himself
within the reach, the question arises whether he is

taken out of it by malice or something else.

MR CHURCHES:  Yes, Your Honour.

DEANE J: But, you seem to be approaching the case on the

assumption that the defendant has brought himself

within the reach of the section, or alternatively

on the assumption that comments in cases like

Sca.mmell are directed to the onus of proof on that

first point.

Well, now, you may be right in adopting that

approach. It is not evident to me, however, that

you are.

MR CHURCHES: Well, certainly with regard to Sca.mmell,

Your Honours, we see Lord Justice Scrutton's

decision has having set out onus in terms of the

defendant officer not having the weight or the

burden upon him, but rather on a plaintiff against

him.

DEANE J: But that is provided - and I will stop after

this - but that has provided the first sentence in

the quote on page 178 is satisfied. It is all

postulated on a hypothesis.

MR CHURCHES: Sorry, Your Honour, the words:

Webster(2) 11 29/4/93

In my opinion, when a defendant appears to be

acting - - -

DEANE J: Yes.

MR CHURCHES: Well, we want to deal with that at some

length, Your Honour, because the first thing I

would say about those words of

Lord Justice Scrutton are that they are drafted in

either a passive voice, or something very close to

it, and the thrust of our case for the appellant

today is that it is not adequate to leave words

like that hanging in the air when a defendant

appears to be acting.

We would submit that it is for, in this case, the respondent, to have to establish - the weight

lies on him, the onus lies on him to prove - not

merely assert or to appear passively, but have to

prove that he is acting within the course of his

statutory functions.

DEANE J: But, what do you say? Did this policeman, when he

effectively ejected your client from premises of

which your client was a tenant, appear to be acting
under statutory authority? If so, what statutory

authority enabled him, or gave him the appearance,

of being entitled to do what he did?

MR CHURCHES: There is reference in the affidavit evidence

to his reliance on section 82B, his claim of

reliance, and that is all, I think, Your Honour.

DEANE J:  Thank you.

Your Honours, we are now at point (d) on

page 2 of the outline where we submit that the

legal burden - I must apologize for a misstatement

there. The heading at (d) should read, "The legal

burden rests on the defendant to prove belief in

facts which, if they existed, would authorize the

acts carried out".

We refer in particular there to the report of

Rochfort v Rynd, (1881) LR I 204, No 7 on the list

of authorities, referring to a Victorian statute

providing for time limitations for justices of the

peace. That case arose out of convictions and

subsequent fines and then a distress warrant

issuing which were, in fact, unsound.

Chief Baron Palles at page 210 at the top said, and

it is quite a simple statement -

the onus of proving the defence lying on the
defendants, they should have affirmatively

shown a bona fide belief, not that they had

Webster(2) 12 29/4/93

authority to do as they did, but that facts
existed -

et cetera.

MASON CJ:  Why are we going to all these cases? Why is not

the starting point the statement of principle in

Lord Justice Scrutton's judgment in Scammell at 429 which is echoed in the joint judgment of

Justices Dixon and McTiernan in the case in this

Court?

MR CHURCHES:  Because, Your Honours, we are of the view that

those two cases run against us because they say

quite baldly that the onus lies with the plaintiff.

MASON CJ: But that is only after it appears that the

defendant is acting as a member of the police force

or as an officer of authority under statutory

authority. It is only once that appears that the

onus is on the plaintiff.

MR CHURCHES:  Yes, I take your point, Your Honour. The

problem then still remains with those two cases, in
our submission, that they are drafted - the

reference to the position of the defendant officer

is referred to as "an appearance" or "a

purporting"; those words, the verbs "appear" and

"purport" are used throughout. In our submission,

they are too passive. They leave the question

begging as to where the onus lies and, indeed, in

our submission, the question is then answered by the Full Court of the Western Australian Supreme
Court incorrectly, because it rested on these
question-begging words: "mere appearance",

"purporting". In our submission, that should be

established and it should be established by proof,

and that onus lying on the defendant officer.

That, in our submission, is the problem with those

two cases.

I take Your Honour's point that further on,

yes, a burden might then, as a separate issue as

to, for example, in paragraph H, whether there is

malicious or corrupt performance, but these are
words that are too indeterminate - "when a

defendant appears to be acting as a member of a

public body". How much appearance is necessary?

Some of the 19th century cases suggest that a mere

colourable appearance will do, while others move to

the other extreme of the spectrum.

MASON CJ: But why are we worried about all these other

situations? Why are we not, in light of

application of this principle, then turning our

attention to the facts of this case?

Webster(2) 13 29/4/93

MR CHURCHES:  I suppose I have gone for too general an

approach, Your Honours, on that. I apologize.

Well, in our submission, then if we focus directly

on Scammell and Hamilton v Halesworth, the problem

lies, as I say, in those indeterminate words as to

the status of the defendant officer in his

relationship to his statutory authority. Mere

appearance, we say, is not enough, and we want that
appearance to be tested. That is, in short, the

case for the appellant today.

We want to focus those words. It may indeed

be that we are not directly running against

Scammell and Hamilton v Halesworth, but we are

asking for those words to be tightened up, to be

focused clearly, so that in future courts will know

where that onus lies.

MASON CJ: All I can say is for my part it does not

necessarily appear to me, on the facts of this

case, that the defendant was in this situation:

namely, appearing to be acting in pursuance of

statutory authority, or in the exercise of

statutory power.

DAWSON J: Well, I am at a loss. What is the cause of

action alleged against a defendant? Trespass?

MR CHURCHES: Trespass, wrongful eviction and wrongful

arrest, or threat of wrongful arrest.

DAWSON J: The latter may be a cause of action, I do not

know, but what he did was tell these people to get

off.

MR CHURCHES:  Yes, while standing - having been asked to

leave premises, he remained there.

DAWSON J:	And under the section of the Police Act, unless they had lawful authority to be there, which
apparently they did, they are obliged to get off.
MR CHURCHES:	Yes, Your Honour.

DAWSON J: So, it was him telling them to get off, warning

them off that constitutes the cause of action.

MR CHURCHES:  Yes, while standing on the premises. I mean,

it might have been a different question if he had

stood outside, but yes.

DAWSON J:  You are not alleging trespass by his being there,

are you?

MR CHURCHES:	Yes.
DAWSON J:	You are?

Webster(2) 14 20/4/93

MR CHURCHES: Sorry, Your Honour?

DAWSON J:  You are not alleging trespass by his merely being

on the premises?

MR CHURCHES:  Not merely, no, but also by after being asked

to leave.

DAWSON J:	He did have a right under the statute to warn them off the premises.
MR CHURCHES:	He had a statutory capacity to do so, yes.
DAWSON J:	And they had a right to stay there if they were

entitled to do so, a lawful authority.

MR CHURCHES:	Yes.
TOOHEY J:	Why do you say he had a right to order them off

the premises?

MR CHURCHES:  I am sorry, I wanted to rephrase that for

Justice Dawson: as a statutory capacity to warn off

under 82B.

DEANE J: But why did he have a statutory capacity to warn

off a tenant?

MR CHURCHES:  I make the comment "statutory capacity" only

in a neutral sense; not necessarily in these facts.

In these facts it is another question, but we submit that that question goes as to his state of

mind. That is the problem with these cases, they always go off on not the actual facts and whether

it was a perfect observance of the statute, but

whether the defendant officer believed in a state

of facts.

TOOHEY J:  But section 82B has nothing to do with state of

mind, has it; if that is the section that you have

in mind when you say there was a capacity to order

the appellant from the premises? What is the

foundation for a police officer telling somebody to

leave premises? In this case it appears to be

section 82B, if applicable, but section 82B does

not speak to the officer's state of mind.

MR CHURCHES:  No, Your Honour, but - I have to accept that

Your Honours are making this case a lot quicker and

faster for me than I can do it, and I apologize; I

have focussed down entirely on the question of onus

because of the way the special leave argument went

off. I, for example, to address Justices Dawson

and McHugh, have not raised Dillon v Plenty, which

we brought up at special leave, because it did not

seem to address the onus point, but you are really

Webster(2) 15 29/4/93

going to the very heart of police power, not just

the question of onus as to belief.

In our submission, when it comes to police

power, I take the point that all of you have

raised, that the police officer simply does not

have adequate power pursuant to 82B to have done

what he did.

DAWSON J: That is where I am a little confused. He can

warn someone off premises. He may have not basis

for doing so, and if he has no basis for doing so

then the warnings have no effect, and that is what
the section says; if they have lawful authority to

stay there, they can stay there, they do not commit

an offence. But how does it appear that he was

acting pursuant to section 82B, or that he believed

he was?

MR CHURCHES:  I think there is material in the affidavits,

Your Honours, that says that the respondent officer

believed that the tenancy was terminated - or

rather that he believed - I think the state of

mind - and I find myself, I hope you will bear with
me, effectively putting what I surmise to be my

friend's case, but I suppose it is page 120 of the

appeal book, Sergeant Lampard's affidavit, at

paragraph 4 - his state of mind appears to be - the

highest he can put it is that he was satisfied that

a Mr Banning, who was the landlord, was the

registered proprietor and that Banning was in the

process of evicting.

I think that is how it has come about, that

his state of mind - this goes on then to page 121

of the appeal book - that since Banning was going

out to evict the appellant, then the respondent

officer offered to come along and ensure there was

no breach of the peace, and that eviction - imagine

a state of facts which, if true, will exculpate the

officer, if that eviction is sound, then the

officer would submit that, pursuant to 82B, the

person who owns the property can require persons

still on the property to leave.

DAWSON J: But his capacity to warn someone, if capacity is

the right word, is not dependent upon the person he
is warning being lawfully or unlawfully on the
premises. If they are lawfully there, they can

disregard the warning.

MR CHURCHES:  Indeed, Your Honour, but difficult to do when

there are two police officers and three others in

your front parlour.

DAWSON J: That is not the point. In other words, his

acting in pursuance of the section, section 82B, or

Webster(2) 16 29/4/93

not acting, is not dependent on there being lawful

authority on the persons to whom the warning is

given to be on the premises. Indeed, the section

presupposes that they may have lawful authority and

therefore may disregard the warning.

DEANE J: Paragraph 7 on page 121 adds some support to what

Justice Dawson is putting to you.

MR CHURCHES: Well, yes, Your Honour. I suppose that is the

high-water mark of the respondent's state of mind

as to what he believed was the position and which

would justify him in asserting authority out at the

roadhouse.

TOOHEY J:  But before you get to what he believed, it is not

in issue that Mr Banning was the owner of the

premises; it also appears to be not in issue that

Mr Webster was the tenant or lessee of the

premises. Whether and in what circumstances that

lease of tenancy could be terminated is another

matter.

MR CHURCHES:  Your Honour, if I could just add to that,

there is, I submit - no, I submit directly, there

is another factor involved in that equation and

that is not merely the question of law of the

status of the landlord and on the other hand that

of the tenant, but the state of the officer's

belief as to what those relationships were will

matter.

TOOHEY J: Well, that may be, but at the moment I thought we

were exploring the objective facts and they seem to

point to nothing more than that the appellant was a

lessee or tenant of premises, he was told by the

owner to leave, and the owner was supported in that

by the police officer.

MR CHURCHES:	Yes.
McHUGH J: But is not the tortious act that you rely on is

the threat of arrest?

MR CHURCHES:	Yes, Your Honour.
McHUGH J:	"He said he would arrest you unless you left."

Now, the question is, did he have a power of

arrest, and if so what facts would trigger that.

If he believed in a state of facts, which would

justify the arrest, then he comes within the

defence sections. But, is it not crucial, to the

determination in this case, to determine the facts

which he believed justified in arresting the

defendant if he did not leave the premises?

Webster(2) 17 29/4/93

It is not enough: he says, "I thought he was

unlawfully on the premises", they have got to be

they existed. facts which would justify his right to arrest if

MR CHURCHES:  Yes. This has gone further afield than I had

expected, Your Honours, and to answer

Justice McHugh's point there about statutory

authority that he would have for arrest, the

relevant provisions in Western Australia are

section 43 of the Police Act and section 564 of the

Criminal Code. Section 564 says:

Where a police officer has reasonable

grounds for suspecting that an arrestable

offence has been committed -

past tense -

it is lawful for the police officer to arrest

without warrant any person -

and so forth. And further, under subsection (5),

the police officer has a right:

to enter upon any place -

while section 43 of the Police Act provides a power of arrest for a constable over all persons, whom he

shall have just cause to suspect of having

committed or being about to commit any offence.

I suppose, again in the invidious position of

putting my friend's case, they would argue that

they foresaw a "just about to commit an offence"

situation.

McHUGH J: Well, true, but the question is, what are the

facts upon which they rely, which they believed

existed.	I would have thought they were matters
that the defendant had to plead and prove before

any question of malice or good faith arises.

MR CHURCHES: In our submission, that is the case,

Your Honour. The respondent officer has to make

out his authority, or his being in under that
umbrella, and the furthest he can stretch that
umbrella, is of course - and we have to accept

this, the case law for 200 years has said it, it

does not have to be a scrupulous adherence to

whatever the statutory power was, otherwise the

limitation provision has no meaning, but it has got

to be within the belief, and that belief must then

be tested.

DEANE J: But, do you not have to go back and do a little

bit of building of the blocks before you can even

Webster(2) 18 29/4/93

argue your case? Can I take you to page 115 of the
appeal book. In paragraph 15, is the case as your

client puts it.

MR CHURCHES:	Yes, Your Honour.
DEANE J:	Now, that is in direct conflict with the case as

the respondent puts it, which was the paragraph I

referred you to earlier. Well now, I presume that

you say, for the purpose of this summary dismissal

of the proceedings, one must assume that when the

evidence is heard and cross-examination is

complete, and so on, your account in paragraph 15

is accepted?

MR CHURCHES:  Yes, Your Honour.

DEANE J: Well now, on that basis, in a context where the

police officer knew that your client, at least, had

been a tenant, his statement there could not be

so, is is not? justified by any reference to section 82B. That is

MR CHURCHES:	Yes, Your Honour.
DEANE J:	I mean, if he had added, "Unless you have a lawful

excuse for being there, I will arrest you", it

might have been a different case.

MR CHURCHES:	Yes, Your Honour.
DEANE J:	Now, is it not from there that we have to set out

on the path of ascertaining what are the applicable

principles of law to that precise situation?

MR CHURCHES: Well, if I understand Your Honour, you are

saying there is, at this stage, conflict in the

evidence as to what passed in the roadhouse?

DEANE J:  No, what I am saying is, must not the first

question be, if 15 is accepted and stands alone and

you have no more than an assertion that the

policeman will arrest because he is asked to do so
by the owner, even though he knows there was a

tenancy, that comes within the ostensible reach of

either of those sections. If it does, one then

passes on to the question, "Well, is there

something about the case, such as malice or so on,

that takes it outside". But the first question

must be, "Does it come within"?

MR CHURCHES:  Indeed, Your Honour, does it come within, and

we say that the testing of coming within will have

to involve testing the mind of the respondent.

DEANE J: Well now, I follow that, but that seems to be

contrary to what is said as the introductory

Webster(2) 19 29/4/93

statements to most of the statements of principle

that you have referred us to.

MR CHURCHES:	Those statements of principle, Your Honour, were brought to the attention of the Court with a
view to distinguishing provisos and exceptions for
the purpose of determining onus, because we come back to the question, the state of mind of the respondent, and it is that state of mind which, we
submit, has to be made out by the respondent.

DEANE J: Well, I do not want to take any more time, beyond

pointing out to you the difference between
paragraph 7 of page 121, which does bring the case

within the ostensible scope of provisions such as

this by identifying a factual situation, and

paragraph 15 on page 115, which is your case, which

at least arguably does not bring the facts to being

within the arguable reach of the section.	I will
not interrupt you any more.

MR CHURCHES:  Yes, apropos the exchange in the roadhouse,

Your Honour, I note merely page 128, further

affidavit of the respondent, paragraph 22, "If he, the plaintiff, remained, he would be committing an

offence and may be subject to arrest".

DAWSON J: Now, that may be wrong. If you go to page 7,

where the pleadings are set out, he may or may not

be wrongfully threatening someone with arrest for

trespass which sounds in damages, but that would

not be pursuant to the Police Act anyway, would it,

threatening someone with arrest?	On the face of
it.	Nor would wrongfully requiring the plaintiff
to give up possession of the premises.	The only

thing that on the face of it would appear to be pursuant to the Police Act would be the warning

which was given.

MR CHURCHES:  Yes, Your Honour, I imagine that it could be

argued that the other things followed

consequentially, simply as a matter of fact, from

the warning, that there is a giving up of the

possession, yes, but there can be no statutory

basis for driving off the premises, we would

submit.

McHUGH J: But what is the cause of action against the

second defendant?

MR CHURCHES:  It is set out at page 7 of the appeal book,

Your Honour.

McHUGH J:	I have read what is in the statement of claim, but what is the cause of action?
MR CHURCHES:	Yes, we have merely got a prayer for relief.
Webster(2)	29/4/93
McHUGH J:	No, on page 4 you set out certain facts, but what

is the cause of action? Is it some form of

intimidation?

MR CHURCHES:  I would submit, Your Honour, that it falls

under the umbrella of misfeasance.

McHUGH J: Is it an unlawful threat? Is it a Rookes v

Barnard type intimidation?

MR CHURCHES:  It is probably a misfeasance of office, a

general tort of misfeasance in public office.

TOOHEY J: It is paragraph 26, is it not? If it is to be

found anywhere it is to be found there.

MR CHURCHES:  Yes, it is those words, I think, Your Honour.

That is the best we have got then.

McHUGH J: 26(c) has nothing to do with threats or arrest or

anything like that, has it? It must refer to the

factual circumstance in which the defendant was on

the premises without authority. But what about (a)

and (b)? 26 really seems to be a claim for

punitive damages rather than a cause of action.

MR CHURCHES:  Yes, it may even be that this matter could

have been pleaded as a Beaudesert case, but

fortunately I was not there to draw such a long

bow.

MASON CJ:	You are in enough difficulty without struggling with Beaudesert.
MR CHURCHES:	Your Honours, there is one particular matter I

do want to refer to in the outline, since we are

now back at the question of the state of mind of

the respondent officer, and that is that in our

submission it is not merely sufficient for

him - and I think some of the case law has gone

amiss on this - not merely sufficient for him to

make out that he had a belief in a set of facts

which, even though they are wrong, which, even if

they were true, would then attract the statutory

provisions.

In our submission there is the additional

requirement and it appears - it is just subtly
interwoven in, for example, Hamilton v Halesworth,
a requirement for also the good face performance of

public duty. That, in our submission, is a

separate issue from merely believing in a state of

facts. In other words, the respondent officer must

have an honest belief that he is performing public

duty.

Webster(2) 21 29/4/93

In our submission, that is important for the question of the application of onus because it will

lie on the defendant respondent officer not merely

to assert that he was acting in the course of his

duties and to set out in affidavit form, as he has

done here, some facts, but that the question of his

honest determination to carry out public duty,

which is a separate thing, will have to be tested,

and it cannot be tested merely by assertions at

affidavit level. That is why the long list of

cases in the outline, Your Honours, about having
these matters tested on evidence, that in the 19th

century they went to a jury to be tested as to

whether the defendant officer was purporting to

carry out his statutory functions. It is not fit

to be knocked out, as this has been, a strike-out

at first instance.

Those matters are referred to at page 5 in

paragraph (d). If I can just refer particularly to

Hamilton v Halesworth, the decision of

Justices Dixon and McTiernan, it is at page 380

about three-quarters of the way down:

If the defendant honestly intended to put the

law in motion and he really believed in a

state of facts which, if it existed, would

have justified his act, or he intended to act

according to the duties of his office as a

special constable, then it would be a thing

done in pursuance of the statute -

We submit that while they are related, they

are different, and importantly different, matters -
the belief as to a state of facts and the honest

intention to pursue statutory functions. They are

the two things - not just the one, but the two -

which should be tested on evidence. Hence then,

Your Honours, the last two pages of the outline,

pages 6 and 7, deal with the question of the

reasonableness of belief, that state of mind of the

respondent officer. That is why we have gone to

such lengths to cite cases which we submit to the

Court set out the necessity for a reasonableness

test.

we want to get away from any idea that a

respondent officer can, by assertion, claim that he

is under the umbrella of a limitation provision,

that whether or not he had the appropriate state of

mind is a matter to be tested with the onus on him,

and the appropriate test, we would submit,

particularly after George v Rockett - it is No 36

on the list of authorities - particularly after

what the Court had to say there in approving

Lord Atkin's then dissent in Liversidge v Anderson, we would submit that the test for states of mind in

Webster(2) 22 29/4/93

general of this sort is an objective reasonableness	test.
Your Honours, I can see that the facts on the case are capable, perhaps, of rather brisker
determination than my heavy reliance and working
over the case law on the question of onus and where
it lies. I do not mean to intrude upon the
quickness with which you went to the officer's
capacity to have done or not to have done what he
did. I apologise if this has been rather overblown on the question of onus. I do not think I can take
this any further with you, other than to -

MASON CJ:  One thing I should say to you before you

conclude. I just do not see that Rockett's case

provides any support whatsoever for your

proposition about reasonableness.

MR CHURCHES:  The words in Rockett's case, Your Honour, go

to -

MASON CJ: Well, there there was a requirement for

reasonable grounds, was there not?

MR CHURCHES:  I appreciate a statutory requirement would be what you are referring to.

MASON CJ: Yes.

MR CHURCHES:	Yes, Your Honour, we of course submit that there is no statutory requirement in this case at
all, but that is why we have listed at such length the case law which goes off on the state of mind
required of the respondent officer, because
irrespective of whether it is a statutory
requirement or not, we say that the case law has
now, for 200 years, wrestled with a state of mind
of an officer.  Much of that authority has said it
has to be a reasonable state of mind and a state of
mind to be tested objectively, and that is where we
see the connection with what this Court said in
George v Rockett. Whether or not it is a statutory
requirement, if you are investigating, if a Court is confronted with a claim as to a state of mind, then the appropriate test that follows is an
objective one.

MASON CJ: This Court wrestled with that question and

decided the other way. Why should we depart from a

decision of the Court? Rockett does not undermine

that decision.

MR CHURCHES: Well, in our submission, Hamilton v Halesworth

was not argued quite the way we have had to

confront onus before the Court today. It did not

address that question directly and, indeed, that

Webster(2) 23 29/4/93

goes back to our submission, Your Honour, that the

words "purporting to act" and "appearing to act" in

both Hamilton and Scammell, are the problem in this

area.	They allow respondent officers - statutory
officers - to make an easy escape.	The limitation

provision exists for good reason, but in our

submission it is only where officers fulfil the

necessary requirements to trigger that protection.

They are not - - -

TOOHEY J: Are you saying that that is the language to be

found in the Police Act and the Limitation Act, the

purporting or - - -

MR CHURCHES:  No, Your Honour, I am sorry Justice Toohey. I

am referring to the wording in both Scammell,

Lord Justice Scrutton - - -

TOOHEY J: Yes, I know you are, but I inferred, perhaps

wrongly, that you are suggesting that that was a

pointer to the language of the Police Act and the

Limitation Act.

MR CHURCHES:  No, Your Honour.

TOOHEY J: What do you say about those sections? I mean,

what is the measure of protection which they offer

to a defendant?

MR CHURCHES:  Your Honour, it is the matter to which we

refer on the final page, page 7 of the outline,

the policy reasons for construing these two

provisions strictly, that they are not blanket

provisoes or exemptions from liability at all.

Both of them work around that fairly standard

rubric:

no action shall be brought -

or no action lies -

for any act done in pursuance or execution -

in 47A and similar words.

TOOHEY J: Just a moment, before you leave 47A of the

Limitation Act:

in pursuance or execution ..... of any public

duty -

those are objective criteria.	What does "intended
execution of any Act" mean?

MR CHURCHES:  In our submission, Your Honour, that is in

conformity with the case law.

Webster(2) 24 29/4/93

TOOHEY J: Yes, but what does it mean?

MR CHURCHES:  It would have to mean actions which, bona

fide, are in good faith intended to give effect to

the Act even though, on later determination of the
facts, they had not done so, but that at the time
the state of mind of the officer, who later
infringed the law, was that he honestly intended to

give effect to executing the Act.

That then goes off on those two points: both

the state of mind as to the facts which, if true,

would support him, and secondly, his honest belief

that he his performing his public duty.

TOOHEY J: What about paragraph Hof the Interpretation Act?

It is incorporated in the Police Act. Is there a subjective element comprehended within that

paragraph?

MR CHURCHES:  Not at all, Your Honour. Indeed it, on its

terms, does not go as wide as the reference to

portion to:  intended execution. It just refers in the middle

In carrying the provisions of this -

what was then an ordinance -

into effect -

and so forth, against any party or parties.

But we would accept that on the case law going

back to Greenway v Hurd in 1792, that that must be interpreted to allow for misapplication of the law

providing it was honestly and in good faith

intended to carry the provisions of the Act into

effect.

The question then goes back to the test on the

respondent officer as to whether he is carrying, or

purporting to carry, the provisions, but I am

concerned as to these words "merely purporting" or

"merely appearing".	They should not be glibly
accepted.

TOOHEY J:  Why use them? Why use those words? They are not

used in the Act.

MR CHURCHES:	No, indeed, Your Honour, but they have, in our submission, misled the Full Court in Western
Australia which has relied on those words "purport" and "appear" because of reliance on Scammell and Hamilton v Halesworth.

Webster(2) 25 29/4/93

Hence, just to conclude on that to

Justice Toohey on this point, that that is why

perhaps at best we can frame our submissions in

terms of not running directly counter to those two

authorities but seeking the Court's assistance in

sharpening the focus of those words, not allowing

them to remain as nebulous and lacking in precision

as they are, so that in future respondent officers

will know exactly what it is that is required of

them when they seek to claim the protection of

these sorts of provisions.	I do not think there is
anything further I can add, Your Honours.	Thank
you.

MASON CJ:  Thank you. Mr O'Hara.

MR O'HARA:	Your Honours, I notice that there really has not been any discussion thus far about the question of
onus, and it seems to have been accepted that the
statements of principle in relation to onus as set
out in Hamilton v Halesworth and Scammell v Nephew
are regarded as being correct statements of the
law.

What seems to have been principally focused on

thus far is whether or not there has been a

sufficient factual framework so as to bring into

play, in particular paragraph Hof the Police Act

and, of course, the notice of appeal which is

before Your Honours does not bring that matter into

issue. It simply deals with the question of onus. In saying so, in our submission, it is not a matter

which is for consideration before this Court, the

appellants having confined themselves to alleging that the error has been in relation to the matter of onus of proof. You will notice the grounds of

appeal do not, in any shape or form, seek to allege

that an error has been made in the court having

found that there was a sufficient factual framework

in order to bring into play those provisions.

In fact, you will notice that ground (b) seems

to accept that there is in fact a factual basis for

the belief. So it would be our submission that

that is a matter which cannot be taken any further

at this stage.

I might say, Your Honours, that we certainly

do not accept that there was any error made in that

regard. Even if it is a matter that could be

considered by this Court, we do not accept that

there was any error made in that regard. It is

quite clear that provisions such as this are to be

of benefit to a defendant when he has made a

mistake, as has been frequently pointed out in the

case law. If a defendant had not made a mistake,

if he was acting entirely within power, then there

Webster(2) 26 29/4/93

would be no need for these provisions because he

would not be liable in the first place.

These provisions, in order to come into play,

in order to become relevant, more or less assume

that there has been unlawful conduct on the part -

DAWSON J: This is where I have a little difficulty, I must

confess. What was the unlawful conduct? I mean

that is a hard question to ask you but - - -

MR O'HARA:	We do not say there was any, Your Honour.
DAWSON J:	But the circumstances - the things that

Justice Deane were referring to, depend upon - I am

not putting that very well, but you cannot know how

the Police Act might apply until you know the

unlawful circumstances.	You have got to be able to
see that.	How does it appear that he was relying

on the Police Act in doing what he was doing?

MR O'HARA:	Your Honours, the first point we make is that that is not a matter that can be considered by the
Court in view of the way in which the notice of appeal presently stands.
DAWSON J:	It is very difficult to consider the question

which the appellant attempts to raise in the

abstract; without reference to the facts.

MR O'HARA: All I can say is it is a matter which has not

been raised.

DAWSON J: Yes, I know, I really, perhaps, should not be

putting these things to you.

MR O'HARA:  Yes, certainly. Well, Your Honour, we would

say, given the - - -

DEANE J:  Why is it not raised by ground 2(a)?

MR O'HARA:  Because that is simply directed to the onus of proof and it is - - -

DEANE J: Yes, but the Full Court has, in effect, said the

plaintiff's action against the second defendant

fails because they bore the onus or proving this

thing and they did not prove it.

MR O'HARA:  Yes.

DEANE J: Well now, if, in the circumstances of this case,

they did not bear any such onus, why does

ground 2(a) not cover?

Webster(2) 27 29/4/93

MR O'HARA: Well, ground 2 does not say that the Full Court

made an error in deciding that there was sufficient

factual basis in order to bring into play.

DEANE J:  It says they made an error in saying that the

appellants bore an onus, which they did not bear.

MR O'HARA:  But that follows on from, "in finding that

once - - -

DEANE J:  What you are saying is they cannot maintain

ground 2(a) by an argument that you did not

anticipate.

MR O'HARA: Well, Your Honour, we would say it is not a

matter of - I would not put it in that way at all.

What I would say is that it says:

In finding that once the Respondent set up a

factual basis for his belief that he acted in

pursuance of the Police Act - - -

DEANE J:	I was referring to 2(a), not 2(b).
MR O'HARA:	Sorry, 2(a). Your Honours, in our submission

that can be taken as being nothing but directed to

the matter of onus, and does not, in any way, seek

to call into question - - -

DEANE J: But the case turned in the Full Court on the

finding that the appellants bore that onus and had

not discharged it. What they are saying is, in

2(a), that they did not bear any such evidence.

Well now, if, by examining the facts, it emerges that they did not bear that onus because what your

client did did not even have the semblance of being

done in the exercise of statutory authority under

the Police Act, or some other Act, why can 2(a) not

cover it?

MR O'HARA: Well, Your Honour, in our submission, it is

clear that all that is being raised there is a

question of law and what is not being raised is

that the Full Court made an error prior to that in

having found that there was sufficient factual

framework to bring - - -

DEANE J: Are you prejudiced by a wide reading of 2(a)?

MR O'HARA:  I am not prejudiced by it, no.

McHUGH J: What about paragraph 2(c) anyway? They erred -

in not finding that the question of acting

within statutory power was a separate one from
whether the actions were motivated by an

improper or ulterior motive.

Webster(2) 28 29/4/93

MR O'HARA:  Once again, we say that does not clearly bring

into focus the matter which was raised with my

learned friend. I am not in any sense prejudiced,

but I do say that it is a matter which has not
fairly and squarely been raised in the grounds of

appeal.

McHUGH J:  But your pleading in paragraph 4 of your written

submissions seem to assert it is sufficient for

your purposes simply to plead in the statement of

claim the relevant section, and that is the end of the matter, and you are entitled to succeed unless the defendant proves an absence of bona fides.

MR O'HARA:  It is probably not quite as simple as that. we

would say that there is an evidentiary onus upon a

defendant in those circumstances to set out in some

detail the facts which he relief upon in forming

the view that he did. In our submission, he has

done that.

McHUGH J:  I am not sure that he has, because the first

question that arises is whether those facts, if

true, would have constituted a defence in any

event. Supposing he said, "I thought the

plaintiffs were a husband and wife who were

escapees from prison in New South Wales. That was

the basis of my belief." Now, having proved his

belief in those facts, is he entitled to succeed

unless the plaintiffs proved that he was motivated

by malice?

MR O'HARA:  In our submission, yes, that is what the case

law provides, and that is the whole purpose and

intent of the statutory provisions.

McHUGH J:  Even if he would have had no justification for

arresting them, even if the facts he believed in

were true?

MR O'HARA: Well, Your Honours, these whole provisions are

premised upon the fact that there has been a

mistake.

McHUGH J: There is no doubt about that, but there are

mistakes and mistakes.

MR O'HARA: There are mistakes and mistakes. If I can

simply refer to an authority of my learned

friend's, Little v The Commonwealth, and just refer

to page 112 of that report, to what

Mr Justice Dixon had to say, he said - - -

DEANE J:	What is the reference?
MR O'HARA:	It is No 32 on the appellant's list of

authorities.

Webster(2) 29 29/4/93

DEANE J: Yes, it is 75 CLR 94.

MR O'HARA:	And in dealing with it he comprehensively reviews protective provisions, starting half-way
down page 108, and he reviews the law, going from
there, through to page 112 and, having reviewed the law, he arrives at his summary in the second
paragraph, and he says:

The truth is that a man acts in pursuance

of a statutory provision when he is honestly
engaged in a course of action that falls

within the general purpose of the provision. his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or

ignorance or mistake of law. But these are

reasons which explain why he needs the

protection of the provision and may at the

same time justify the conclusion that he acted

bona fide in the course he adopted and that it

amounted to an attempt to do what is in fact

within the purpose of the substantive

enactment.

McHUGH J: But it has got to be the course of action that

falls within - he has got to be engaged in a course
of action that falls within the general purpose of

the provision.

MR O'HARA: Well, that is true, but that is conditioned,

Your Honour, by the fact that he must be acting

bona fide in the course he adopted. It seems to me

that - it may be a question of degree but, at the

end of the day, it is simply a question of whether

the Court is satisfied, and this is where the
question of onus comes in, that he has honestly

attempted to give effect to the law or whether he

has been motivated by some other motive.

TOOHEY J:  Mr O'Hara, what is the law that it is said that

the respondent was intending to give effect to? Is

it section 82B of the Police Act?

MR O'HARA:  Yes.

TOOHEY J: That, and that alone?

MR O'HARA:  Yes. It may well be, I have no doubt, that a

tenant who is required to leave premises by a

police officer has a good defence to a charge under

section 82B if he refuses to do so upon the grounds

that his tenancy has not been terminated. The fact

that he has a defence does not say that if a police
officer mistakes when it is that a landlord is

entitled to resume possession that he is not

Webster(2) 30 29/4/93

entitled to the benefit of a provision such as

paragrah H.

DEANE J:  The objective facts are that he is ordered to

leave and told that if he does not leave
immediately he will be arrested, and also told that

if he takes any item at all of property he will be

arrested. How, on the face of it, could that even

arguably be in pursuance to the Act?

MR O'HARA: Well, Your Honours, I think it is probably

necessary to go back one step from that, and to

look at what happened before the police officer

attended at the premises. If I can read page 125

of the appeal book you will see he deposes at

paragraph 3:

On or about 11.00 am on the 21st of December

1988 I received a complaint from the First

Defendant at the Southern Cross Police Station

advising me of his intention to have the
Plaintiffs evicted from the Yellowdine
Roadhouse and his reasons for doing so.

Then he annexes a copy of the complaints slip. If you have a look at the complaints slip, page 132,

it says:

I own Yellowdine.	Today I am evicting
Mr Webster and family.	I need to have urgent

repairs made on the premises to lift a Yilgarn

Shire Health Order. Webster was renting the place from me - - -

TOOHEY J: Sorry, where are you reading this from?

MR O'HARA:  From page 131 and 132. This is the photocopy of

the complaints slip which was taken at the time.

It goes over:

Webster was renting the place from me but has

never paid a cent and owes me $70,000. The

new managers will be ..... Could you be close by

when we are there as Webster once threatened

to burn the place down.

And there is no doubt at all that given that

having been the complaint, the police officer was

obliged to attend.	He goes on to say, at the
bottom of page 125:

I wanted to satisfy myself that Banning was

the registered proprietor of the Roadhouse and

that he had just cause to evict Webster from

the Roadhouse.

Webster(2) 31 29/4/93

He says that he was shown a number of - over on

paragraph 6:

shown a number of documents -

and these documents simply related to the title of

the landowner and showing that he was the

landowner. Paragraph 7, you will see that - - -

DEANE J: Well, is that so? What about:

I also inspected the Lease papers.

MR O'HARA:	Yes.
DEANE J:	I had read that as indicating that he knew that

the premises had been leased to Webster.

MR O'HARA:  I do not think there is any doubt that he was

aware that there was a lease in place, and I accept

that. You will see in paragraph 7, he telephones

the local shire and, once again, confirms:

that Banning was the person responsible for

paying the rates.

In paragraph 8, he is shown:

letters from the Yilgarn Shire Health

Inspector.

It is worth having a look at those orders. They

are at page 133 and 134 of the appeal book. At

page 133 there is an order that the premises are

unfit for human habitation, that:

no person shall inhabit or occupy -

the premises from two weeks of service of the

notice, and the notice was dated 18 November, and he had received the complaint from the owner of

the premises on 21 December.

Then there is another notice also that is, in

effect, in relation to the premises, at page 134.

You will see it sets out all the works which are required to be carried out, and they are not matters of a minor nature, and bear in mind, these

premises are open to and used by the public:

Septic tanks to be installed ..... effluent

disposal system to be installed ...... food

preparation areas to be brought into

compliance with the Food Hygiene Regulations -

et cetera, et cetera.

Webster(2) 32 29/4/93

Paragraph 9 deposes to the fact that the police officer is shown correspondence passing

between Mr Banning and the tenant.	He says, in
paragraph 10:

From reading these letters, I was able to

ascertain that the Plaintiffs had leased the
property and had failed to fulfill the

conditions pursuant to the Lease.

TOOHEY J:  Mr O'Hara, would it be unusual for a police

officer to intervene in a situation in which there

is a dispute between owner and leasee as to

entitlement to occupy the premises? I am assuming

that there has been no violence or any other

conduct likely to give rise to a breach of the

peace, or anything of that sort.

MR O'HARA:	Yes, but - - -
TOOHEY J:	I would be unusual, would it not?
MR O'HARA:	I would have thought it would be unusual, yes.

Mind you, there was a threatened breach, or there was a - - -

TOOHEY J:  Some suggestion that he had once threatened to

burn down the roadhouse?

MR O'HARA:  Yes, and I suppose it is not for the police

officer to decide there and then that that is a

fanciful suggestion. But no, I accept that it

would be unusual, and I would have to say it is

imprudent, and by and large, what a police officer

in those circumstances should do is to say, "Well,

this is a civil matter" as they frequently say,

"and I really need to see a court order for

possession."

But it is our submission that that is why

there are provisions such as paragraph H, because

police officers are called upon in relation to a

wide-ranging sets of circumstances.

DEANE J: But can you rely on these things, about somebody

saying that he was going to burn the place down?	I
mean, is not the starting point this: you go to
page 115 and you have paragraphs 15 and 17 which
spell out what your client did in the context of a dispute between landlord and tenant. Now, in that context, if those stand on their own, do you say it
comes within the ostensible reach of the sections?

MR O'HARA:  Your Honour, I accept that if a matter is

disposed of at a summary level that disputed

questions of fact cannot be resolved and must be

Webster(2) 33 29/4/93

assumed in favour of the party who is bringing the

claim.

DEANE J: But the point is, do you not have to bring the

case within the provisions, even accepting 15 and

17 as the relevant facts, because once you go off

on to all this sideline how can you rely on that

without Mr Churches' client being given any

opportunity at all of testing it by

cross-examination?

MR O'HARA:  Your Honour, I do not think the Court is obliged

to confine itself to the facts that the plaintiff

seeks to raise. Surely the defendant is himself

entitled to raise facts. In fact, he must do in

order to - - -

DEANE J: But has there been a decision on the facts in the

context of that dispute? How has the appellant

lost the dispute if he has never been allowed to

cross-examine?

MR O'HARA:	Your Honour, there has been no objection raised to the facts which have been deposed to by the
defendant. If I could simply say, it goes further
than that.  You will see at paragraph 13 the police
officer says:

From my own observations of the premises I saw

that the kitchen was in a dilapidated state.

And that is, of course, in conformity with the orders that had been issued by the local shire.

McHUGH J: But that is the whole point, is it not? You

cannot rely on any of those facts to support a

summary judgment. I mean, if you want a summary

judgment, then the very beginning would be the

plaintiff's version of events. How can you

possibly rely on what the defendant says to support

the application for summary judgment, when the

plaintiff has a contrary version?

MR O'HARA:  Your Honour, in many respects there is no

contrary version. The matters which I have just

been referring to are the matters in relation to

which the plaintiff has not addressed himself.

There is no conflict in relation to those facts.

The defendant has set out what he saw and observed

and what he did prior to his attendance at the

premises on the day. There is no factual dispute

in relation to that matter. The defendant must

bring those matters forward, in the same way that a
plaintiff who applies for summary judgment must set

out clearly the facts which he relies upon. It is

then up to a defendant, in a normal case, to take

issue with those facts. The plaintiffs in this

Webster(2) 34 29/4/93

case have not taken issue with the factual

background which is set out by the defendant.

McHUGH J: Why? Surely what appears at 115, for example,

gives a very different view of the whole case; what the officer said and what were the facts upon which

he was acting.

MR O'HARA:	Well, it still does not, in any sense, meet the matters that I have been addressing, Your Honour.
I might say that what happened in relation to this
matter was - you will see, for example, there is the main affidavit of the plaintiff sworn back in
1989. This action was not taken until - I think
the police officer was not joined until significantly later and the first action was simply taken against the landowner. These early
affidavits were filed at a time when the police
officer was not a party to the litigation; the
earlier affidavits, anyway, were filed at a time
when the police officer was not a party to the
litigation.
TOOHEY J:	How did that affidavit of Mr Webster, come to be

filed, Mr O'Hara?

MR O'HARA:  Your Honour, perhaps it is easier if I refer you

to the reasons for decision of Master Bredmeyer,

which starts at page 135. What happened was - you

will see that matter was heard on 31 May and

25 June, and when the matter came before the court

at that stage there was only one affidavit from the

police officer, which is the affidavit starting at

page 120.

He has filed two affidavits in these

proceedings, and at that stage there was only that

one before the court. There had been only a very -

I think the only affidavit before the - well, the court had regard to the affidavit of the plaintiff,

found at page 123, and you will see it is an

affidavit in a very short form. So, when the matter first came before the

Master on the first occasion, to the defendant's

knowledge there was only one affidavit which was
relied upon by the plaintiff, and that was the affidavit of the plaintiff, found at page 123.

TOOHEY J: When you say, relied upon - - -

MR O'HARA:  It was the only affidavit which had been served

on the defendants' solicitors. When the matter

started to be argued, the plaintiff's counsel said, "Now, look, there is not just this affidavit, there

is a whole series of other affidavits that we rely

upon, which were sworn a couple of years earlier".

Webster(2) 35 29/4/93

TOOHEY J:  My question was, how did that, or those

affidavits, in particular the ones sworn

29 November 1989, come to be filed?

MR O'HARA:	They came to be filed at a time when Mr Lampard was not a defendant, and when the only defendant to
the action was Banning.  I understand they were
filed, I think, in relation to an application for
an interlocutory order, that the premises be
surrendered up to the plaintiff.
TOOHEY J:	So the reference in paragraph 1 of the affidavit

on 113 to the defendant is not a reference to your

client?

MR O'HARA: Yes, that is correct.

TOOHEY J: Yes.

MR O'HARA: In fact, so far as dates are concerned, on

24 January 1989 a writ was issued against

Banning Holdings Pty Limited. It was not until

31 August 1990 that an order was obtained that

Mr Lampard, the police officer, be added as a

defendant, and that did not take place until

12 September 1990.

So we would say that effectively there has not been any response; there has not even been any

attempt by the plaintiff to respond to the - - -

DAWSON J:  He joined issue with the defence, in his reply.

MR O'HARA: Yes, and I -

DAWSON J:  I really must confess I am not - originally the

summons sought to strike out the statement of claim

because it disclosed no cause of action and also

sought, as an alternative, summary judgment. But

how can you get summary judgment against a

plaintiff when there is a reply which joins issue

with the defence merely on affidavit evidence.

MR O'HARA:	I suppose that really brings into focus the question of whether - and this is what we say is
the case - a plaintiff is obliged to plead malice.
DAWSON J:	Why?

MR O'HARA: Because paragraph H says that - - -

DAWSON J: But he has just denied that you have any defence

at all under paragraph H.

MR O'HARA: Sorry, Your Honour.

DAWSON J:  You raised it; he joined issue.

Webster(2) 36 29/4/93

MR O'HARA:  Yes, but paragraph H says there must be "direct

proof of corruption or malice". It is not for the

defendant, it is for the plaintiff to prove.

DAWSON J:  By joining issue he says, "Well you prove that

you have got a defence under paragraph H".

MR O'HARA:  Your Honour, we say that paragraph H requires

that there be direct proof of corruption or malice,

and that means more than that - - -

DAWSON J:	But it was you who pleaded paragraph H.
MR O'HARA:	We have raised the matter, yes, indeed - - -
DAWSON J:	And the plaintiff disputes your entitlement to do

so.

MR O'HARA:	He has, he
DAWSON J: And that is the end of the matter.	There is an

issue and it goes to trial.

MR O'HARA:  But, Your Honour, we say that to deny that

paragraph H comes into effect does not even begin

to satisfy the - - -

DAWSON J:	Why not?
MR O'HARA:	Because the plaintiff has not pleaded - the

plaintiff has not alleged malice, and he is

required to do that.

TOOHEY J:  He is only required to allege malice, or he is

required to prove malice if your client otherwise

falls within paragraph H.

MR O'HARA:	Yes.
TOOHEY J:	It seems to me we are at the same sort of stage

as we were with Mr Churches earlier on; that your

argument really elides reasonable belief with

objective facts, as if one simply subsumes the

other, but it is necessary, is it not, to show that

if we get to the question of reasonable belief that
the paragraph - in this case paragraph H - and in

the other case the Limitation Act, are applicable,

or capable of applying.

MR O'HARA:  Yes.

TOOHEY J: If the objective facts take the matter completely

outside the operation of either of those

provisions, does "reasonable belief" have a part to

play?

Webster(2)	29/4/93
MR O'HARA: Well, the authority is, no.	The only question

is whether the belief is honestly held. And that

is clear from Trobridge v Hardy and from - - -

McHUGH J: Well, I must say I do not think it is clear from

Trobridge v Hardy or Little v The Commonweal th or

Hamilton v Halesworth.

DAWSON J:  And in any event, the question does not arise

until you establish that it does, and the plaintiff

says you cannot, in his reply.

MR O'HARA: Just in relation to reasonable grounds, if I

could just refer to page 157 of Trobridge v Hardy,

where, at the top of the page, Mr Justice Fullagar

says:

It seems now to be settled that, while there must be some factual basis for the belief, and

while the actual facts known to a defendant

may often be relevant to the question of the

existence of a real belief, it is not

necessary that the belief should be based on

reasonable grounds.

TOOHEY J: But that is not at variance with what I was

putting to you. Indeed, it seems to support it,

because Justice Fullagar speaks of the necessity

for some factual basis for the belief.

MR O'HARA: Yes.

TOOHEY J:  What I was suggesting to you was that your

argument tended to, as it were, bypass the question

of factual basis and go straight to the question of

reasonable belief, as if that were sufficient

whether there was any foundation for the belief or

not.

MR O'HARA:  Your Honour, if you look at section 82B of the

Police Act, which is the provision pursuant to

which the police officer gave the warning, whether

or not as a matter of prudence a police officer

should involve himself in a dispute of this nature,

what he did fits squarely within section 82B.

TOOHEY J: Well, that may be. I would have thought it was

arguable.

MR O'HARA:  I think it is clear that the tenant would have a

good defence if he has a lawful right to remain

but, in our submission, it is unarguable that the

police officer, looking at section 82B, is entitled

to make the request that he made.

TOOHEY J: But if the facts indicate that the police officer

was aware that another person was the owner of the

Webster(2) 38 29/4/93

premises and that the appellants were the tenants

and nothing more emerged other than some argument'

between the landlord and tenant about the state of
the premises, how does section 82B even begin to

operate?

MR O'HARA:  Your Honour, I accept that what the police

officer did may not have been prudent. The fact of

the matter is that I suppose by and large police

officers do not understand the distinction between

a landlord's alleged entitlement to an order for

possession and whether there has been rescission
exercised and whether the breach relied upon is for

non-payment of rent or failure to do other matters.

I mean, quite obviously, a police officer cannot be

expected to know those things. But in his own way

he was told the rent was unpaid, he could see the

premises were in an appalling condition, in fact

there is reference to effluent being around the

Roadhouse.

He understood the tenant's version to be that

he had been carrying out improvements to the

premises and for that reason not paying rent.	The
police officer deposes to the fact that in his

knowledge no improvements had been carried out.

Ideally he should not have involved himself, but he

did, and we say that there was a factual framework

for it. His attendance there in the first place
is, of course, necessitated by the suggestion that
violence might ensue. In our submission, really,

the sole question is the intent with which he acted

and this question of certain facts having to appear

in order to bring the section into play, in our

submission, that really is not justified by

reference to the cases.

I notice at page 156 of Trobridge v Hardy, if

I can refer again to what Mr Justice Fullagar says,

he says in the second-last paragraph:

The statute does not apply except in

Police suspected of offending against the same.

respect of acts done in carrying the

Expressions of this kind have been used in

many statutory provisions designed to protect

officials against the possible consequences of

acts not actually authorized by law but done

in a conscientious attempt to perform a public

duty -

Now, what it is talking about is simply a

conscientious attempt to perform a public duty. In
our view, this further requirement that is being

suggested simply is not justified.

Webster(2) 39 29/4/93

TOOHEY J:  But what do you mean by "further requirement"?

MR O'HARA: Well, that before it becomes necessary for a

plaintiff to allege malice, and before the
plaintiff can be said to carry any onus in relation
to the matter, it is necessary for the defendant to
plead and prove facts which, in effect, amount to

having provided reasonable grounds for his

intervention.

McHUGH J:	Not necessarily reasonable ground, but there must be some factual basis for the belief. Supposing
the sergeant said, "The facts of my belief are a, b, c, and d", and the defendant says, "I don't
accept that"? The defendant has to prove that
those facts were the basis of his belief. Then if
he is accepted on that, other issues arise.

MR O'HARA: In our submission, surely he has done that.

McHUGH J:  He has not. He has made an assertion. He has

not proved anything, on a summary judgment. I have

never seen anything like this, I have to admit.

DAWSON J:  The plaintiffs have denied the assertion in their

pleadings.

TOOHEY J: This is the problem: had the matter gone to

trial your client may well have proved all that was

necessary in so far as the onus lay on him, but the

matter never got that far.

MR O'HARA:  Your Honours, if I can simply refer you to the

words of Mr Justice Dixon and Mr Justice McTiernan

in Hamilton v Halesworth at page 380. That was a

case where the defendant was a special constable

and he arrested a person for picking pansies.

Under the relevant legislation he only had a power

of arrest if the person whom he had arrested had
actually committed an offence. If it was the case

that the person, for example, was simply suspected

of having committed an offence, then the arrest was

wrongful. In this particular case he arrested a

person who had not committed an offence; and

therefore the offence itself was wrongful.

Your Honours will see in the last paragraph there,

starting at the second sentence, Their Honours had

this to say:

If the defendant honestly intended to put the

law in motion and he really believed in a

state of facts which, if it existed, would

have justified his act, or he intended to act
according to the duties of his office as a

special constable, then it would be a thing

done in pursuance of the statute.

Webster(2) 29/4/93

McHUGH J: Could I stop you there, because you cannot

understand that sentence or the following sentence

without reading the first sentence:

In the present case, however, the

defendant took the plaintiff into custody on

the commission of the offence. the footing that he had just been a party to

That was the factual hypothesis upon which the

propositions of law are mounted. But the crucial

thing was that he was taken in on a particular

footing, and the defendant had to prove that, and

had proved it.

MR O'HARA:  No, in fact, he had not, but I will come to that

very shortly.

McHUGH J: Well, he had proved that he had taken him on the

footing, had he not, that he had been a party to

the commission of the offence?

MR O'HARA:  I do not know that that is wholly the situation.

McHUGH J: That was not the fact, apparently.

MR O'HARA:  Let me simply say that Mr Larnpard deposed to the

fact that - I mean he has deposed to the fact that

he had believed that this person is unlawfully on

premises - - -

McHUGH J: Well, I accept that, Mr O'Hara, and at the trial, if those facts were established to the satisfaction

of the tribunal of fact, then you would be a long

way along the road to success. But, this is an

application for a summary judgment.

MR O'HARA: In fact, in our submission, Your Honours,

Hamilton v Halesworth is very important in light of

the decision because what happened there was, it

was a matter before a jury, and it seems as though	what the defendant did was to give evidence simply	that he was a special constable - yes, if you look
at page 371, the second paragraph from the bottom
and the second sentence:

At the conclusion of the plaintiff's case the

defendant gave evidence that he was a ranger

at Centennial Park and a special constable,

and his certificate of appointment as a
special constable in accordance with the
provisions of the Police Offences Act 1901 and

the Police Offences (Amendment) Act 1908 was

put in evidence. The certificate showed that

the capacity in which he was appointed was

HRanger, Centennial Park.H

Webster(2) 41 29/4/93

After this evidence had been given,

counsel for the defendant submitted that the

action must fail as it was commenced more than

two months after the happenings of the matters

complained of. The trial judge desired to

leave to the jury any matters of fact that the

parties wished to have determined, but both

counsel asked that the point of law raised

should be decided and effect given to the

ruling. The trial judge then directed that a

nonsuit should be entered, and his direction

was upheld by the Full Court of the Supreme

Court.

You can see the argument that was directed to this

court, set out at the page just below that at 372,

and you will see, about half-way down the page, the

submission was this:

The nonsuit should not have been granted.

There was a definite issue of fact to go to

the jury as to whether in any event the

respondent was or was not entitled to the

protection of sec 114; whether it was not an

act of sheer officiousness on the part of the

respondent and one which was quite outside the

protection of the limitation sections. The

trial judge could not give a decision on sec

114 without first having the issue of bona
fides on the part of the respondent settled by

the jury.

That is the very argument that was put to this

Court and it is really the same argument that

arises in this particular matter. And what, for

example, the way Mr Justice Starke dealt with that,
appears at the bottom of page 374 of the report.

He says, about four sentences from the bottom:

It was contended that the question of the

honesty of the defendant's belief in this case

was a question of fact for the jury. But

ample facts were proved on which the defendant

might honestly believe that the appellant and

his companions were stealing pansies and not

the slightest evidence was adduced that he did

not so believe. It would have been wrong in

such circumstances to leave the question of

the honesty of the defendant's belief to the
jury.

Now, bear in mind, in this particular case, the

plaintiffs have made a concession in the Full Court·

that they do not have any evidence to justify

malice on the part of the police officer.

Webster(2) 42 29/4/93

McHUGH J: But malice is a different thing from belief.

Sometimes they can be saying that malice goes far beyond questions of belief.

MR O'HARA:  Your Honour, in our submission in these sorts of

cases, malice simply means an intent to do

something other than honestly seek to carry out the

law. In this particular series of cases that

is - - -

McHUGH J:  Not at all. I may intend to arrest somebody but

do it for some ulterior motive.

MR O'HARA: 

And then Mr Justice Starke deals with the matter

again at page 376, in the second paragraph - about
the middle of the second paragraph:

But it is unnecessary to discuss the matter,

for the respondent can justify equally well

under sec. 352(l)(a), which is incorporated in

the Police Offences Act by sec. 103. He was

acting pursuant to the latter Act if he had a

bona fide belief in the existence of facts

which if existing would have justified him in

so acting. He saw, as he believed, the

appellant and his companions both in the act

of stealing pansies and immediately after they

had committed that offence. No evidence was

adduced fit to be submitted to a jury that he

did not honestly so believe.

Now, as I say, in our submission, it is

particularly important to take note of the fact

that the plaintiffs have already conceded that they

do not have any evidence of malice. Then the

matter is dealt with by Mr Justice Dixon and

McTiernan.

McHUGH J: But assuming that they have got no positive

evidence of malice, they are still entitled to cross-examine your client. Were they given an

opportunity to cross-examine Sergeant Lampard

before the Master?

MR O'HARA:  They did not seek to apply for that right.

Under Order 16, the provision under which the

defendant applied for summary judgment, there is -

DAWSON J: What does that provision say?

MASON CJ:	Have you got copies for us, of 16 and Order 20?
MR O'HARA:	I must admit that in view of the grounds of

appeal I had not - I have Order 20. I have

photocopies of Order 20. Order 16 provides that:

Webster(2) 43 29/4/93

Any defendant to an action may apply to the

court for summary judgment and the court, if

satisfied that the action is frivolous or

vexatious, that the defendant has a good

defence on the merits, or that the action

should be disposed of summarily, or without

~leadings, may order that judgment be entered

iOr the defendant with or without costs, or

that the plaintiff shall proceed to trial, or,

if all parties consent, may dispose of the

action finally and without appeal in a summary

manner.

MASON CJ: That is Order 16 rule 1, is it?

MR O'HARA:  Yes, and it says, in rule 2:

The plaintiff may show cause against such

application by affidavit.

2(2) provides:

The court may if it thinks fit order the plaintiff or the defendant or, in the case of

a corporation, any officer thereof, to attend

and be examined and cross-examined upon oath.

Now, there was no application made by the plaintiff

that the defendant be cross-examined.

So, in Hamilton v Halesworth, this Court gave

effect to a provision which, in our submission,

provided less benefit to a defendant than the

present paragraph H. I mean, it was a section that

was considered in Hamilton v Halesworth, simply in

these terms:

I mean, it was a section that was considered

in Hamilton v Halesworth, simply in these terms:

All actions and prosecutions to be commenced

against any person for anything done in

pursuance of this Act shall be commenced

within two months after the act was committed. Paragraph H goes further than that - it is not

simply a limitation period - and says that before

you can succeed, you must prove malice. In that

particular case, there was no adjudication by the

jury upon whether or not the defendant's belief was

bona fides.

This Court held that this was unnecessary because, really, the matter had not been

sufficiently put in issue by the plaintiff. At the

bottom of page 381, Justices McTiernan and Dixon

finished off by saying:

Webster(2) 44 29/4/93

The burden of proving an indirect motive or

mala £ides lies upon the plaintiff, and, in

our opinion, he has not discharged it. We

think that there is no evidence fit to be

allegation. submitted to a jury in support of the

That is not withstanding the fact that the

defendant's belief was not, in any sense, tested by

way of cross-examination.

Your Honours, assuming that the defendant, here, was incorrect in what he did and, really, all

he did, in our submission, was to give a warning in

accordance with section 82B of the Police Act.

Even on the plaintiff's version, it can not be

shown that anything he did was unlawful.

Even if he did act unlawfully, in our

submission, what is clear, from what was said in

Hamilton v Halesworth and Trobridge v Hardy, is

that the question then simply becomes a question of

"Well, what were his bona fides?", whereas

Scammell v Hurley has made it clear in relation to

provisions, such as the Limitation Act, that the

onus lies upon the plaintiff of proving mala fides.

In relation to paragraph Hof the Police Act,

the legislation itself provides that there must be

direct proof of corruption or malice. In our

submission, a joinder of issue is simply not

sufficient. There must be direct proof of

corruption or malice.	A joinder of issue is not
good enough.

DAWSON J: But a joinder of issue, it puts in issue your

right even to raise the defence.	The step before:
any question of malice arises.

MR O'HARA: But, Your Honour, the obligation is on the

plaintiff to prove malice.

DAWSON J:  No, you do not get to malice unless prima facie

you have the defence under the Acts.

MR O'HARA:  It seems as though the judgments in Hamilton v

Halesworth do not provide for that further step.

If it be the case, as it is, that these provisions

are designed to offer some sort of protection to a

person who is acting unlawfully, then what is the
point of this preliminary inquiry, because if he is acting lawfully he does not need the benefit of the provision because he does not face the prospect of

being liable? The Court can only be concerned with

"With what intent did he carry out the unlawful

conduct?"

Webster(2) 45 29/4/93

DAWSON J:  One of the things the plaintiff is saying by that

pleading is, "You were not acting in pursuance of

any statutory authority." He may well be right;

in which case the statutory defences do not arise.

MR O'HARA:  I understand what Your Honour is saying, and we

say that the statute only applies when the person

is acting unlawfully, and that is what the case is

saying. There is not any need for it otherwise.

Then, what it provides is, "Although you are acting

unlawfully, you won't be liable if your intent was

good. If your intent was bad, if there has been

corruption or malice then you are not entitled to

the protection." But it is up to the plaintiff to

raise that question of malice so that the defendant

knows whether his bona fides are being called into

question.

And if they are not, if the plaintiff is not seeking to attribute the defendant with a dishonest

intent, then the defendant is entitled to have the

action dismissed.

TOOHEY J: Well, it is not quite as simple as that, is it?

I can see the force of the proposition that a

joinder of issue under the ordinary rules of
pleading would not entitle the plaintiff to allege

corruption or malice; those are matters that I

would have thought should be expressly pleaded,

even if by way of reply. But it is still open to

the plaintiff to argue that the defendant was not

carrying the provisions of the Act into effect.

MR O'HARA:  But in our submission, Your Honour, that can

only relate to one matter, and that is what was his

intent, because it really gets the plaintiff

nowhere to say, "You were not carrying the Act into

effect because you acted unlawfully", because the

section only becomes relevant when there is

unlawful conduct and so there are only two bases

upon which the plaintiff could say that you are not
entitled to the benefit of the provision.	No,

there is really only one, and that is that your

intent was not proper.

TOOHEY J:  Is that right, or would it be open to the

plaintiff to say, "What you did was so far outside

the carrying into effect of the provisions of the

Act that your belief could not have been

reasonable"?

MR O'HARA:  Well the case at stake was quite clearly known.

I mean, it is a provision that is designed to assist people when they make mistakes.

DEANE J:  Why can you not say, "What you were purporting to

do was not authorized by the Act, and you were

Webster(2) 46 29/4/93

purporting to say to somebody, whom you knew had a

tenancy, to 'Get off the land' of which he had been

the tenant or, 'You will be arrested, and if you

remove one item of property, you will be arrested',

and that is something which, accepting that that

was what you were purporting to do is not in

pursuance of this or any other Act"? You see, that

is the whole point of Hamilton. It was common

ground that the constable believed the three people

had been involved in stealing pansies, indeed that

was the plaintiff's own evidence, and the important

thing about it is, if you go to page 381, it is
only after, on the basis that that was common
ground and that the matter came within the
ostensible scope of the provision, which are
matters expressly dealt with, that they come to a

fourth and last ground, that being of collateral

motive, and they say that is something which is

covered by the relevant passages in Scammell.

MR O'HARA: Well, Your Honour, I suppose that brings me to

this point: if the plaintiff is alleging that the

defendant was not honestly seeking to carry

out - - -

DEANE J:  I am not saying that, I am saying what the

plaintiff has said is at page 115. If it stood

alone, applied to a tenant in occupation of land could not conceivably be said to be in purported

pursuance of any statutory provision. You have

just got to look at it and it is obvious that it

does not purport to carry out the spirit of any

statute.

MR O'HARA:  Your Honour, in our submission, one cannot simply look at that matter in isolation.

DEANE J: That is the point, is it not? That is the

plaintiff's case. Why should that be rejected?

MR O'HARA:  I am not even saying that it should be rejected,

but I am saying that, in our submission, the Court

must also have regard to what the defendant

alleges, which is backed up by way of supporting

documents and which is uncontradicted by the

plaintiff, and which the plaintiff has at this

stage not sought to contradict. In our submission,

you must have regard to that also.

DEANE J: But what has the defendant alleged that would

justify him in arresting the plaintiff if he

removed a single item of property?

MR O'HARA:  With respect, Your Honour, that is not a matter

that is in issue on the pleadings.

Webster(2) 47 29/4/93

DEANE J:  Yes it is, it is part of the overall conduct that

amounted to forcing the appellant to get out.

MR O'HARA: Well, Your Honour, let me say, one of the

affidavits· filed by, I think it is Mr Banning,

which is in this appeal book, deposes, to my

recollection, to the fact that the items of

property on the premises form part of a bill of

sale given by the tenant in favour of the landlord

and that the - - -

DEANE J: What, so the position now is that your client

believed he could arrest somebody who broke the

provisions of a bill of sale?

MR O'HARA1 No, I am not saying that. What I am saying is,

Your Honour, in our submission, on an application

that is sort, it is not appropriate to look simply

at the matters which the plaintiff alleges. The

Court must also have regard to what the defendant

says. I accept that they cannot be taken as being

proven but, in our submission, it is simply not

fair to the defendant, and it is a little bit

artificial to simply isolate and highlight

particular pieces of the plaintiff's evidence,
without having any regard to the broad background
that is painted by the defendant and which, as I

say, is supported, at least in part, by documentary

evidence.

It is our submission that it really comes back

to this, I think, that we say that there is a

requirement to plead malice. For example, if - and

I realize you were saying there is a matter before

you get to malice, you have got to look at the
connection which the defendant's conduct bore to

the law, whether or not it could be said that he

has acted in pursuance of the Act.

In our submission, that is no more than a

question of bone fides, or conversely, malice. It

is really the very same question, given that the

Act only applies when there is unlawful conduct and, in our submission, the matter that you are

raising is no more than, "Well, did he really

intend to carry out his duty, or was he simply

going so far wide of the mark that we cannot say it

is in pursuance of the Act?

If that be the case, then there has not been

an honest, conscientious attempt to carry into

effect the provisions of the law, he has been doing something quite separate, and there has been malice

in the sense in which that term is explained in

Trobridge v Hardy and, in our submission, it is

really one and the same matter. It is not two

matters at all, it is simply one matter, because

Webster(2) 48 29/4/93

the Act protects unlawful conduct and the question
then becomes! ttWith what intent, with what purpose,

were you acting?" In our submission, all you are

doing is re-stating the mental element in different

terms.

Your Honours, what has just been discussed is

probably at the crux of this matter, and I think it

is referred to at paragraph (e) on page 2 of the

appellant's submission where it is said:

If the Defendant can establish his acting in the performance of the statute, then a separate legal burden rests on the Plaintiff
to prove provisos within the limitation

provisions -

and, in our submission, Your Honours, if you

consider that, it must be that it is wrong, and I

say that for this reason: for the defendant to

establish that he is acting in the performance of

the statute, he can only do that by satisfying the

Court as to his bona fides.

Now, if he has satisfied the court as to his

bona fides then how does the second limb of malice

have any relevance whatsoever. It simply does not

come into play, because upon the appellant's

submission it is necessary for the defendant to

show that he is acting in the performance of his

duty before the question of malice is considered.

He can only show he is acting in the performance of

his duty by establishing his bona fides.

What the Act says is, there shall be "direct

proof of corruption or malice". In our

submission, that interpretation is altogether at

odds with the very clear intent of paragraph H, and

if that interpretation is to be given effect to, in

our submission, malice simply becomes entirely

irrelevant because what, in effect, is achieved is	that rather than the plaintiff having to establish	the dishonest intent on the part of the defendant,
there is a reversal effect, and it is necessary for
the defendant to establish his bona fides.
If I can simply note, Your Honours, that some comment in passing, Trobridge v Hardy, referred to
the iniquitous provision of paragraph H, which required that if a plaintiff was unsuccessful, then
he was required to pay treble costs. I point out that that provision has been changed somewhat and
it simply now provides that treble costs may be
awarded. I daresay that it would be almost
impossible to satisfy a court to make such an order, and you will note in the extracted orders in

Webster(2) 49· 29/4/93

this case that such an order was not made and such

an application was not even made. Your Honours, in our submission, there are

good reasons why the question of onus should be

dealt with in the way we say. One of the things

which we say should be had regard to is that for a

start paragraph H only provides protection to

police officers in limited circumstances. It only

applies when a police officer is taking action in serious crime, matters arising under the Criminal
relation to a suspected offence under the Police

Code. So it is only in relation to a very limited

class of conduct that it is to have any application

at all.

In our submission, the submissions which we

put also gain some support from the invidious
position that police officers find themselves in in

that being statutory officers they are not the

servant or agent of anybody; and whereas a person

carrying out their normal work who is subject to

civil action can, in effect, pass that on to the

employer, that is not available to a police

officer. It may be at the end of the day that the

government decides to foot the bill, but that is in

no sense a legal requirement.

In our submission, the Court also should have

regard to the fact that police officers are by the

very nature of their work required to respond

immediately to situations of danger and requiring
immediate attention. It is inevitable that at

least one of the parties to a fracas is going to be

dissatisfied with the way in which the police

officer disposes of the matter. We would say the

Court also should have regard to the fact

that - and this is particularly, we say,

significant when aligned with the fact that there

is no one who is vicariously liable for the actions

of a police officer - most people carrying on

business can, of course, limit their liability in

terms of exemption clauses or what not. I realize

that would sound like a nonsense in relation to a police officer, but in our view, it must be borne

in mind that they are by the nature of their work

going to be exposed to a range of actions.

MASON CJ:  I think we are aware of considerations of that

kind, and they are fairly tangential, anyhow.

MR O'HARA: Yes, indeed. Finally, Your Honours, we would

starting point in relation to who carries the onus

say that - sorry, perhaps I should say,

when a defendant raises a limitation period, and I

Webster(2) 29/4/93

apologize for the fact that this case is not on the

list of authorities, but it is Australian Iron &

Steel Ltd v Hoogland, 108 CLR 471 and, in

particular, I refer to about the second last

sentence on page 488 where Mr Justice Windeyer

said:

However, when issue is joined on a plea of the Statute, the burden of proving that the action

is within time is on the plaintiff: see cases

referred to by Dixon J, as he then was, in

Cohen v Cohen.

McHUGH J: But in that case, he took the view that the

limitation period was part of the cause of action

and he distinguished it from other cases of true

statute of limitations. He relied on The Crown v

McNeil and cases of that nature.

MR O'HARA:  Your Honour, it appears to me in reading the

whole passage that he has made that comment in

dealing with the statute of limitations, as opposed

to a particular provision.

McHUGH J: But, the whole basis of his judgment in that case

was that the time provision was not a true statute

of limitations, but was itself part of the cause of

action.

MR O'HARA:  Your Honours, I do not think I can take the matter any further.

MASON CJ:  Thank you, Mr O'Hara. Do you wish to reply,

Mr Churches?

MR CHURCHES: Yes, Your Honour.

MASON CJ:	How long are you going to be?
MR CHURCHES:	I imagine the luncheon adjournment is for

1 o'clock. I will try and be through.

MASON CJ: Yes, certainly. I mean there is no need to feel

under any pressure to conclude, but if you are

going to be short, we will continue on and hear

what you have to say.

MR CHURCHES:  Thank you, Your Honour. I think what I have

to say in reply can be best addressed by turning to

my friend's outline of submissions. I think that

the critical paragraph is on page 2, paragraph 4.

The first sentence:

When a Police Officer is a defendant and

raises paragraph H there is really only one

question -

Webster(2) 51 29/4/93

we say, yes, absolutely. My friend then went on

and it came up again in his closing submissions to the Court dealing with the second sentence in that

paragraph. Of course, we say only one question and

the answer to that question lies with the defendant

to make out.

But then he went on to say - and this came up

in the closing portion of his submissions - what

work is then left for the reference to malice and

corruption as it is set out in paragraph Hof the

Police Act. No work to be had if, where it

specifically provides that there has to be strict

proof on the plaintiff, how can it be that the

defendant has to sail his craft into the safe haven

of the liability limiting provision, having to do

all that work for himself.

Well, we say that the illustration of what has happened here lies in the New South Wales Court of

Appeal decision in Currie v Dempsey - No 1 on our

list of authorities - because the provisions in

Currie v Dempsey illustrated exactly the problem of

an overlapping set of provisions. Section 139 of
the relevant Liquor Act provided a list of matters
which an applicant for a licence had to make out.

Then section 140 provided for the list of objections that an objector might raise, but there

was an overlap between the two, and the court was

confronted with where the onus lay on those

matters. The analogy we draw is here with the

respondent officer, as it were, "an applicant",

seeking the safe haven of the limitation provision.

We say he has the onus on him to raise those matters and there may be an overlap between some of

the matters he has to deal with and that which is

later specifically provided to lie with the

appellant plaintiff. In Currie v Dempsey,

Justice Walsh said - and I think it is in

conformity with the other members of the Court -

said, "Well, if there is an overlap there then

those matters which are first specifically to lie

with the applicant, onus will lie there", and we

submit that the analogy remains sound for the facts

here, that the onus remains, where there is an

overlap, where it first lay, with, in this case,
the applicant, for safe haven, the respondent

officer he has to make out his case. And should that necessitate having to address whether he has been coloured by extraneous motives, for example -

and I will come to that in a moment - then that

still lies with him, even though there may be a

later specific reference.

Webster(2) 52 29/4/93

In terms of the history of this provision,

Your Honours, of course, the provision was first

drafted in 1853 and, in our submission, the case
law was not as sophisticated as it might now be in
its approach to this. Malice has simply remained

stuck on, as it were, something of an appendix;

something that may have had some utility at another

date, but it no longer necessarily has one. So,

the fact that it has no immediate work or may not

necessarily have immediate work to do, is not

necessarily against, by any means in our

submission, the appellant's submissions.

I just note, my friend having referred again

to Trobridge and the whole question of where the

onus lies in the first place, we do refer back in

closing to what Justice Kitto had to say at

pages 161 and 162 in Trobridge, and bearing in mind

that Justice Fullagar had indicated he agreed with

those views, that Justice Kitto clearly indicated

that proof of malice was not necessary. I think

the words were, ."did not arise", if the respondent

officer could not come under the umbrella of the

protective provision. Malice was not an issue.

As it happens, and as we have referred to in

our outline of submissions, it may be, and has
occurred in many of these cases, that malice is

pleaded along the way specifically by plaintiff

appellants. So in that case, malice had already

been assessed as a matter of fact.

That then goes, of course, also to the question of how facts are determined. My friend

referred at some length and relied substantially on

Hamilton v Halesworth referring to argument at

page 372 of the report and then what Justice Starke

said at 374. I think what has happened here is

illustrated in many of those 19th century cases on
this topic, that the judge had a capacity to

reserve matters before they went to the jury to

assess what should be left to the jury. In our submission, what is important about

Hamilton v Halesworth is that there was a finding

of fact. That is what has not occurred in the

instant case, because Justice Starke goes on to say

at page 374 that there was evidence. It was found

on evidence that the defendant officer had the

honest belief.

McHUGH J: But there was no finding of fact, was there,

because they were non-suited, were they not?

MR CHURCHES:  I would go so far as to say that His Honour

found - I think the words are that he found "on

evidence", so there had been a taking of evidence.

Webster(2) 53 29/4/93

That is the difference with our position, in our submission, Your Honour.

That goes on to the question of how deep - and

should there be a full trial of these issues going

to cross-examination. My friend referred to the

fact that the appellant had not taken an

opportunity which he submits was available before

the Master to cross-examine. We refer to the

decision of the Full Court set out in the appeal

book at pages 183 to 184 where Justice Ipp, in

concluding the judgment of the Full Court,

said - it is below line 15 on page 183:

There is no basis upon which the matter should

be sent to trial for the purposes of enabling

the appellants to cross-examine the respondent

as to the genuineness of his belief that he

was acting in the execution of the Police Act.

In our submission, we are appealing the

was not appropriate and, in our

reasoning and finding and the judgment of the cross-examination

submission, it is important in this sort of matter.

My friend has raised policy issues on page 4

of his outline, at the very top. That is a

continuation of paragraph 2 of his matters dealing

with Hamilton v Halesworth, referring to a

whittling away of the very protection intended by

the statute. The appellant has referred in his

outline at the final page, paragraph 4(b) to the

policy on this: the protection is not a protection

from litigation.

MASON CJ: Yes, that is in your outline, there is no need

to - - -

MR O'HARA:  Yes, I just wanted to refer to that,

Your Honour.

issue of the fact of Western Australian police Thank you. My friend has raised the

officers not being able to pass their liability

vicariously. I think the simple answer to that is

that if it is found as a matter of fact that they

had been on a frolic of their own they are not

going to be able to pass their liability, even in

those jurisdictions which have now legislated to

make Governments vicariously liable. And then

concluding, Your Honours, on the matter of

collateral motive was raised in the course of my

friend's submission.

On that I refer to Kyloh v Wilsen, No 6 on the

appellant's list of authorities, page 512, where issue. In that case he referred to the bad blood

Webster(2) 54 29/4/93

that may have existed between plaintiff and

defendant officer because of the impounding of a

cow. That is relevant, we submit, on the issue

before the Court in this matter because of the contradictions that have already arisen in the

evidence in the affidavits and, indeed illustrates

the necessity for cross-examination on this matter.

At appeal book page 31 the landlord, Banning, said

that the respondent officer said that the police

had had trouble with the appellant in the past.

MASON CJ:  Mr Churches, if you are going to go on we will

adjourn now and resume at - - -

MR CHURCHES:  One more minute, Your Honour, I am nearly

there.

MASON CJ: Very well.

MR CHURCHES:  And that is specifically denied at appeal book

page 98 by the appellant. we note also the

contradictions which exist in the appeal book, the
evidence put in by the respondent - appeal book

page 132, my friend referred to it - the sheet kept

by the police. It says there:

Sgt Lampard and PC Elkes stand by whilst

Webster is evicted.

We submit that is in quite clear

contradistinction with what is put in the affidavit

by the respondent himself, at appeal book page 128.

He did not just stand by. These are the sorts of

contradictions which, in our submission, require

resolution by way of the taking of evidence in

full, and cross-examination.	Your Honours, that
concludes our submissions.

MASON CJ:  Thank you. The Court will consider its decision

in this matter and will adjourn until 9.30 am

tomorrow in Sydney.

AT 1.03 PM THE MATTER WAS ADJOURNED SINE DIE

Webster(2) 55 29/4/93