Webster & Anor v Lampard

[1992] HCATrans 314

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P16 of 1992

B e t w e e n -

ANTHONY REGINALD WEBSTER and

ROSELYN WEBSTER

Applicants

and

DAVID LAMPARD

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

Webster 1 16/10/92

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 16 OCTOBER 1992, AT 11.11 AM

Copyright in the High Court of Australia

MR s.c. CHURCHES: If it please the Court, I appear for the

applicant in this matter.	(instructed by Messrs
Duckham Thorpe)

MR G.J. O'HARA: If it please Your Honours, I appear for the

respondent. (instructed by Messrs Kott Gunning)

MR CHURCHES:  Your Honours, if I might tender to the Court

copies of outline of submissions and also a

supplementary book of documents and book of

authorities.

MASON CJ: Thank you.

MR CHURCHES:  Your Honours, the significant question which

is raised by this case is this one: can public

officials vested with statutory powers and

functions perform illegal actions which can never

be part of such functions - and in this case we are

talking principally of trespass - and then have

those public officials receive statutory immunity

under the statute which they are purported to be

performing because such officials thought that the

illegal act was within their functions? And we

note that the officials which are the subject of

this litigation are police officers, in particular,

a sergeant of police.

The determination of the Full Court, which is

set out in the judgment of Justice Ipp who wrote
for the Full Court, in particular, at application

book pages 47E to 48A and Band application book

49B to Dare the principal portions of that

judgment with which we are concerned. The immunity

provisions which are relevant to this litigation
are set out in the application book at pages 39 and

40, and they are section 138 of the Police Act of

this State which incorporates paragraph Hof the

shortening ordinance which dates back, ultimately

to 1892, and section 47A of the Limitation Act.

The immunity provisions are in fairly general

form. We submit that even though they do not

contain the reference to "bona fide" or "good

faith" on the part of the functionary that, none

the less, the interpretation of the Full Court,

referring at length to the necessity of good faith

and bona fides, puts those provisions on the same

footing with the normal wording of such provisions

found and we submit such provisions are very, very

frequent, indeed. In fact, nearly all statutes in

this country, both at State and Commonwealth level

which empower public functionaries with capacity to

act, contain such immunity provisions.

Webster 2 16/10/92

Now, on the facts of the instant case, we

submit that the threat of arrest while in the

action of trespassing on the premises of the leaseholder, that is the applicant, the male applicant, Webster, is unsustainable by reference

to the immunity provisions. We say that,

principally, Your Honours, because the action of

trespass, going on to that property and remaining

on the property after the licence - any such

licence as there was to be there on the part of the

respondent, was revoked. That is quite clear on

the facts, in our submission. The applicant, the

male applicant, Webster, informed the landlord,

Mr Banning, who was present with the police

officers and two others - he said, "You are

trespassing". That was after Banning had ordered

the applicant out of the premises. The tenant or

the leaseholder, Webster, said, "No, you must

leave" and the respondent refused to leave. He not

only refused to leave, he then threatened arrest.

And we say that that - being present after any

possible licence vested in him had been revoked was

a trespass and a serious matter.

Such trespass cannot be protected by these

immunity provisions because it is not part of any

performance of statutory Acts authorized under the

Police Act or any other Act. Now, it is true that there are some police functions in this State which

are specifically covered in a situation which would

otherwise constitute a trespass. We instance, for

example, on the first page of the outline some

portions of the Criminal Code, section 564, and I

have set out the relevant provisions at the book of

authorities, pages 71 to 72, which we compare with

the provisions of the Police Act, section 43, which

is at book of authorities, page 70.

The Police Act in section 43 makes provision for a police officer - it is a very long - it is a

rather ancient draft, I regret. It is very

complex, Your Honour, but in about the middle of

that section, set out at page 70, there is a

reference to a police officer being able to

apprehend persons where he suspects they may be

"about to commit any offence". Well, that is one

thing, of course, but there is no reference in that

section to being on property in a form which would

otherwise constitute a trespass; whereas, for
example, the Criminal Code in section 564 does make

specific provision for a constable without a

warrant to arrest where he suspects an offence has

been committed. But we say that the facts are

quite otherwise here and, indeed, they clearly

illustrate the difference.

Webster MR.CHURCHES 16/10/92

The respondent here had no such capacity to

fall back on. There was no offence committed. He

merely went on to the property. The licence to be

there was revoked and then he uttered the threat of

arrest and, indeed, went on to pursue the applicant

off the premises.

MASON CJ:	Mr Churches, can we come to your first point, (a), which is on page 2 of your outline of
submissions? Now, your submission there is that
the existence of an honest bona fide belief that the officer is engaged in an act pursuant to
statutory authority is not enough to bring it
within the words "in pursuance of"?

MR CHURCHES: Exactly, Your Honour.

MASON CJ: Well now, what about page 47 of the application

book, and the passage in the judgment of

Justice Fullagar in Trobridge v Hardy that is set

out in detail on that page? What do you say about

that?

MR CHURCHES:  Your Honour, we submit that Trobridge v Hardy

is to be distinguished entirely on its facts

because it was a case that went off on clear-cut

facts of malice which is, of course, an additional

factor which we say - - -

MASON CJ: True, but what about the statement of principle?

In particular, that part of the passage that

commences a little short of half-way down, the

reference to Justice Dixon in Little:

The current of authority has fluctuated

somewhat in one respect.

And on its goes. Now, is that not against you?

MR CHURCHES:  Your Honour, we confront that by submitting to

you that the cases such as Little on which

Trobridge rests - and, of course, these matters

raised in Trobridge are dicta on the facts in

Trobridge, but such as they are in the judgment of

Justice Fullagar, they rest on other judgments

which themselves, we submit, can be clearly

distinguished and we, for example, would want to

address immediately Little and Hamilton v

Halesworth. Both of those cases, we submit, go off

on the question of the triggering mechanism. That

is a matter which I raise on page 3 of the outline

of submissions, Your Honour, and I think that is a

very important di.stinction.

Nearly all these cases involving police

officers and constables have gone off in the past

on whether the warrant under which they acted was

Webster 4 16/10/92

good or not and, understandably, the law - and

Little, in particular, illustrates this matter -

does not require that the constable or police

officer vet the warrant as to its legality. He is

entitled, unless there is a gross defect on the

face of the warrant, to pursue his otherwise

legitimate functions as a constable once he is

vested with an apparently valid warrant. And, of

course, the cases come up because it turns out that

the warrant was not good at the time it was made

and delivered to the constable.

Now, we submit that none of those cases raise

the particular facts which confront us here today

which is an action which cannot be justified in any
Police Act.
way as being within the scope of the detention and arrest pursuant to an authorization

by a Commonwealth minister in war time. The

question there was, "Was the triggering mechanism

adequate?", and Justice Dixon said, "Well, we're

not going to impugn the arresting or detaining

authorities because they arrested on that."

Similarly, in Hamilton v Halesworth, the question of arrest of a man suspected of pansy pilfering in

the garden. The arrest function, just as it was in

Little, is a function clearly within the grasp and

the scope of the arresting officer. That is what

he is empowered to do. But we submit that in this

case, the respondent was never empowered to be

trespassing. That is outside his function. It is

outside what is allowed by the Police Act.

He cannot extend his jurisdiction; he cannot

extend the ambit of the Police Act by wishful
thinking, in our submission. That is just not

possible and, indeed, we submit, is positively

dangerous as a matter of public policy. To that

extent, Your Honour the Chief Justice, I seek to

restrict the ambit of what Justice Fullagar had to

say in Trobridge v Hardy.	We in no way impugn that
reasoning but we say it was restricted to the facts

which, of course, in Trobridge went off on clearly

found malice on the part of the police officer.

TOOHEY J:	Mr Churches, we do not have the statement of claim, do we?
MR CHURCHES:	No, Your Honour.
TOOHEY J:	If you take what is said by Master Bredmeyer on page 2 -
MR CHURCHES:	Yes, at page 2, Your Honour, just over

half-way up.

Webster 16/10/92

TOOHEY J: That seems to identify the causes of action but

it may be of some importance because at the moment

you are putting it in terms of the respondent's

conduct being a trespass and therefore outside the

scope of his duties as a police officer. Does that

argument hold good in respect of the other causes

action, wrongfully threatening the plaintiff with

arrest? I am not sure what that is by way of a

cause of action.

MR CHURCHES:  Yes. I think "trespass" has really got to be

the nub of the matter, Your Honour. I think if we

cannot get up on the trespass point, we are unlikely

to get up on the others. I would submit,

Your Honour Justice Toohey, that the question of the eviction and so on would be addressed pursuant to

our paragraph (b), which begins at the bottom of

page 2 of the outline of submissions, going to

unreasonableness or negligence in the performance of

a function, but we will come to that shortly.

Your Honours, I do seek to address you briefly

on the point of trespass. We have set out the

references to McPhail, No 1 on the list of

authorities, a decision of the English Court of

Appeal. The relevant passage is that of

Lord Denning set out in the book of authorities at pages 2 to 3 where he deals with the position of tenants being evicted from their leasehold; for

example, even where they have over-stayed or they

have committed a breach of the terms of their

lease.

We put that in the context of the law in

Western Australia which is set out in the Local

Courts Act, section 99, and that is in the book of

authorities at page 66, dealing with leaseholds

valued at less than $15,000 per year at the

relevant time. That is a dollar amount which

varies, but at the relevant time it was $15,000 per

year. And you can see, I think it is in the

supplementary documents, at page 74, that the

rental for these premises was $6000 per year. So,

we are plainly within the ambit of the Local Courts

Act.

The point about the reference to section 99 of

that Act, Your Honours, is that it provides, as I

think is normal throughout the common law world, a

machinery for the eviction of tenants where there

is a conflict between landlord and tenant.	The
whole point is that brute force is not the
appropriate solution.	A landlord is expected to go
through appropriate curial procedure.	He issues a
notice to quit to a tenant.	When that is not

abided by, he goes before the appropriate court; he

gets a court order and then, if the tenant still

Webster 6 16/10/92

will not leave, bailiffs are employed. But our

problem here, of course, is that we submit the

entire legal provisions have been short circuited -

circumvented - and a police officer has behaved as

a private bailiff, jumping the gun totally.

So, we refer to McPhail where Lord Denning

sets out the policy as to why one should not use

brute force in throwing out tenants. Similarly,

Entick v Carrington, a now ancient case but one

which has been cited in recent years in this

Court - to similar effect, the sanctity of a man's premises.

Your Honours, just turning to Lord Denning

briefly. It is the last line on page 2 of the book

of authorities. His Lordship said, referring to

the position of tenants:

there is high authority for saying that the

owner is not entitled to take the law into his

own hands and remove the tenant by force.	He
should go to the court and get an order for possession.

MASON CJ: That is clear enough, but the real question is

the scope of the statutory protection that is

given.

MR CHURCHES:  Indeed, Your Honour. We say that the

statutory protection here, and in the case of both

the Police Act and the Limitation Act, it refers to

"performance" or "executing" the Act in question.

We say, quite simply, that the action of the

respondent here cannot be justified as being within

the contemplation of the Police Act. It is not
within the parameters of that legislation.

This is not a mistaken attempt to perform the function of, for example, arrest. This is

straight out trespass. It is not justified. As I

have illustrated to the Court, there are occasions

when police officers in this State are sanctioned

by statute to go on to private property. This is

not one of them.

MASON CJ: But is it not the very purpose of statutory

provisions of this kind to protect the officer

against an illegal act?

MR CHURCHES:  Your Honour, the purpose, in our submission,

of such provisions is to protect the relevant statutory officer when he is attempting - but

incorrectly, in fact - attempting to perform a

function which is legal within the statute, but he

is merely performing it outside the machinery

provided. For example, he is performing the action

Webster 7 16/10/92

of arrest while in possession of an invalid

warrant.	The law does not expect him to test the
validity of the warrant.	It says that once he is

possessed of an apparently valid warrant then even

though he is performing what would otherwise be an

illegal act in arresting somebody, none the less,

he will be exculpated by the immunity provision.But

what he is doing is something he is specifically

empowered to do.	And that, we submit, is the
crucial issue here.

That is the distinction that the respondent

was not performing that which is authorized, and

the fact that it is authorized in some

circumstances - and, indeed, the whole of the case

law in this area, we submit, Your Honours, in the

last decade or, specifically, 11 years since a rash

of cases in the House of Lords in 1981 with which

Your Honours are familiar from your decisions in,

most recently, Plenty v Dillon, and before that,

Halliday v Nevill - I have not cited the House of

Lords' decisions but they, in turn, bred a reaction

in this State in the Full Court of the Supreme

Court, in particular, in the case of Letts v King,

which is No 15 on the list of authorities.

Letts v King, (1988) WAR at page 79, in our submission, is worth turning to at this stage of the

submissions. At page 60, Your Honours, a judgment

of Chief Justice Burt. The facts involved a police

officer forcibly entering a household with a view to

pursuing the matter of a driving offence. They had spotted a driver driving erratically - badly. They

wanted to apprehend him.	He got into his house.
Without a warrant, the police followed him.	They
effectively broke the door down.

It is page 60 of the book of authorities,

Your Honours. At about line 25, the Chief Justice

said:

The submission made to us was that
licence was unnecessary and irrelevant.	The

submission was that the mere conferment by

statute, in this case bys 43 of the Police

Act 1892, of a power to arrest without warrant

in given circumstances, carries with it a

power to enter premises without permission of

the occupier forcibly or otherwise. This is

exactly the submission which has been

consistently rejected.

And, of course, he has already referred there to

Halliday v Nevill above. The Chief Justice was

adamant and the rest of the court did not disagree

with him on that.

Webster 16/10/92

It is the act of trespass in the pursuit of

what is otherwise purported to be a police power
which we say is absolutely not on. That case, of

course, Letts v King, did not raise the question of

the immunity provision. I do not know why it was

not discussed; presumably because it was thought

that the immunity should not have any application

in that situation. But we submit that the trespass

is the ill which cannot be rectified by pretending

that it is within the police officer's powers.

Similarly, Your Honours, we refer to Corbett v R, No 4 on the list of authorities. That is a case which did involve the police raiding a house,

entering a house to throw out tenants. But the

point of Corbett v R is, of course, that it was - I

am sorry, Your Honours, Corbett v R, 47 CLR, is not

in the book of authorities. I took the practice

direction to indicate that the Commonwealth Law

Reports would be provided to you and I had copies

that were given to the Court. The facts there

are, that, of course, the police who raided the

house to throw the tenants out were acting pursuant

to a warrant.	The question for the Court was
whether the warrant was good or not.	The reasoning

of the Court was, if I may say so, as I have

indicated to Your Honours on the general

proposition that I have been putting, that whether

the warrant was defective or not, since it was not

plainly defective on its face, the police officers

were entitled to continue with their actions of

what would otherwise have been trespass.

Concluding on that point, Your Honours, I note

the reference on page 2 of our submissions to ANA v

Newman, 162 CLR, a case dealing with an immunity

provision, not identical in terms to this but the

usual immunizing terminology.

DEANE J:  Mr Churches, can I take you to page 41 of the

book? What do you say the position would be if one

accepted the full accuracy of the paragraph in the
middle of the page commencing "The respondent"?	I
mean, he was acting on information given by the owner with the support of the owner, and accept
that he believed that your client had no right to
be on the property at all or had no lawful
authority.

MR CHURCHES:  Your Honour, I take your point that the

wording of section 82B of the Western Australian

Police Act does raise an almost inherent conflict

which is capable of arising between tenants and

landlords. In our submission, the position of

tenants at law is so notorious that the respondent,

in our submission, is acting quite improperly in

simply accepting what a landlord tells him about

Webster 9 16/10/92

this and proceeding to the premises and then, on

being informed by the tenant that any licence they

may have had for being there is revoked, to still

proceed on in this way.

DEANE J:  I can see the force of that but if one accepts the

accuracy of that paragraph, and it seems that in

the light of what they said the Full Court did, it

almost then turns into a position of whether

section 82B gives a defence to a stupid police

officer. One cannot help thinking that that may be

the very sort of police officer that the section

was intended to cover.

MR CHURCHES:  In our submission, Your Honour, on that point:

section 82B should be ringing alarm bells anyway

for any reasonable police officer because it gives

as the category of those who can give warnings to

persons on premises, not just police officers, but

also owners and also persons in charge or

occupation of the said premises. Now, there ought

to be alarm bells ringing, in our submission, when

a police officer is confronted, as this man

was - - -

DEANE J:  I was not suggesting to you that on the facts of

this case you may not have a lot to talk about. I

was simply suggesting to you that if one accepts
the approach to the facts of this case, accepted by

the Full Court, you have some difficulty in

isolating or in identifying a point of law which

would attract the intervention of this Court.

MR CHURCHES:  I think, Your Honour, the answer to that may

lie in what I was about to refer to the Court, a

short passage, at page 474 of ANA v Newman,

162 CLR. At the top of page 474, about the second

or third line - it is a decision of four Justices:

The Court in each of the two cases -

referring to Hudson and Ardouins cases

for the purpose of determining whether the

statutory provision -

that is the immunity provision -

applied, directed its attention to the

particular act that caused the injury .....

instead of looking to the general statutory
function.

In our submission, the emphasis of a court's thinking, when dealing with an immunity provision

such as this - and bearing in mind that it does cut

down on a tort victim's rights of access to law, we

Webster 10 16/10/92

submit that the appropriate approach of a court is

to look to the allegedly tortious action, not to

immediately look to the furthest possible embrace of the statutory function. That is why we submit

that the onus is, to some extent, swung back on to
the respondent in this case to justify his

position.

Your Honours, if I could proceed on from the

submission we have made on what we might call

"plain straight trespass" on to the performance

itself of what the respondent has submitted or

alleged that he was doing. I note that our heading

(b) towards the bottom of page 2 would be more

felicitously written out as "The respondent's

belief may have been bona fide but the illegal

action was unreasonable or negligent in

performance". That is really the nub of it, and as

the Chief Justice said to me at the opening of this

argument, we say that bona fides are not enough.

That is really at the heart of it.

We note the usual line of authorities in this

area, going on triggering mechanisms; we cite

Corbett and Little v The Commonwealth on that, and

then proceeding at (iii) on page 3, we look at the

fact situation of this case where there is not an
issue of an external trigger in the shape of a

ministerial authorization or a warrant. Here we

have the respondent armed only with information

given to him by a landlord.	He is acting on his
own volition.	We submit that in such circumstances

there is a standard of care which applies and we

cite at this stage, Your Honours, Everett v

Griffiths, a decision of the English Court of

Appeal, and I have set out relevant portions in the
book of authorities, in particular, pages 16 and

17.

The judgment which I refer to there,

Your Honours, is the decision of

Lord Justice Atkin, as he then was - and we freely

concede that it was a dissent in Everett v

Griffiths. We go further to concede freely that

the House of Lords confirmed the decision of the

Court of Appeal; in other words, Lord Justice Atkin

was in a minority of one on this matter. But none

the less, given His Lordship's high standing, in

particular, on issues of negligence and an

appropriate assessment of the duty and standard of

care, we note what His Lordship had to say in

Everett v Griffiths.

Everett's case was one involving the

institutionalization of a man alleged to be insane.

As happens in these cases, of course, he was not and when he was able to regain his freedom he sued

Webster 11 16/10/92

those - a doctor and the custodian of the Board of

Guardians who had been instrumental in having him

locked up. The other two Lord Justices of Appeal

and the House of Lords were anxious to sustain the

immunity provision which was in the usual good

faith terms for those who acted in performance or

execution of their duties, but Lord Justice Atkin

was not prepared to say that good faith was enough.

And I refer in particular to page 16 of the book of

authorities, about the last fifth of that page.

His Lordship said:

But the question we are now considering is

whether, assuming -

and note the triggering mechanism here -

that the satisfaction of the justice validates

the order -

that is the justice who originally gave the

warrant -

he -

the confining doctor -

ought to take reasonable care before becoming

satisfied - - -

MASON CJ:  Mr Churches, having read all these points that

you want to raise, what about the onus point? Is

that not, perhaps, the one arguable point you have

got?

MR CHURCHES: Well, I have not set it out quite as such in

the submissions, Your Honour.

MASON CJ:  No, but I am inviting you to consider whether

that is not the way in which you ought to present

this application.

MR CHURCHES:  Yes, Your Honour, I realize in argument I have

already referred to it, but we submit that the onus
of propriety of acting - or being able to allege

and claim that one is within statutory functions,

ought to lie with the respondent.

DEANE J: But it is only in 47A - I mean, the onus point is

not arguable in the other one but 47A says

"intended execution", and the Full Court seems to

have held that the officer does not have to prove

any element of being bona fide in a case where what

is involved is intended execution, that it has to

be disproved. As I right?

Webster	12	16/10/92
MR CHURCHES:	I think that is right, Your Honour.	In our

submission, that error lies in assuming that the

whole mantel of the statute can be thrown over all

that the respondent was doing. We submit that they

can be bifurcated, they can be separated: that he

had statutory authority, perhaps, to issue a

warning but he did not have statutory authority to

remain trespassing on the premises.

DEANE J: Is what you are saying this, that in the facts as

emerging in this case, it was quite wrong to stop

it on the basis that it was an intended execution

case, on the basis on which the Full Court stopped

it?

MR CHURCHES:  Your Honour, I think that the simple answer to

that is that we say the Full Court, to use a

colloquialism, "went off the rails" in thinking

that the immunity provisions extended that far;
that we say there comes a point where you can no

longer allege that what you were doing was in the

purported or intended execution of a statutory

function. We submit that when it is something as

clear cut as trespass, something which is plain,

straight illegal, that there comes the point of

division.

DEANE J:  What I was really directing your attention to was

the second-half of page 43 and the first paragraph

on page 44. Have you any quarrel with what is said

there and, if so, what is it?

MR CHURCHES:  Your Honours, I think the reasoning of the

Full Court has been substantially affected by the references in the statutory provision, paragraph H, references to malice - - -

MASON CJ: Corruption.

MR CHURCHES:  Yes, proof of corruption or malice. I think

some of the reasoning elsewhere in the decision of

Justice Ipp reflects the notion that that is for

the appellant to have proved. The onus lay with

the appellant there. Here, we submit that the onus

is on the respondent to address something as

clearly illegal as trespass. Yes, we do say that;

that it cannot be simply swept up under the cover

of the Police Act itself.

DEANE J: What, you say the first paragraph on page 44 is

wrong?

MR CHURCHES:  Yes, Your Honour, on the facts of this case we

do.

DEANE J: It took a long time for you to say that.

Webster 13 16/10/92

MR CHURCHES:  I am sorry, Your Honour. Yes, we do, where

the facts are this clear cut.

MASON CJ: But why is not the onus generally on an officer

who seeks to bring himself within the protection of the statute? I do not quite understand why you are limiting yourself to the facts of this case.

MR CHURCHES:  I am just drawing the distinction between what

I have called the "triggering cases", Your Honour.

I do not want to get caught up with the facts of those warrant cases.

MASON CJ:	No, no.
MR CHURCHES:	And I think that is why this case is a little

different on its facts because it goes, to a large

extent, to a self-motivating quality in the

officer, the respondent.

MASON CJ:  Now, Mr Churches, you have really covered all

that can be said in support of the application,

have you not?

MR CHURCHES: Well, I have already, at least, raised the

issue of negligence or reasonableness with

Your Honours. Yes, I would like that to be taken

on board as part of the application, yes,

Your Honour. Thank you.

MASON CJ: Thank you. Yes, Mr O'Hara.

MR O'HARA:	Thank you, Your Honour.
MASON CJ:	Now, we would like you to direct your attention to the onus question arising under section 47A.

MR O'HARA:  Yes, very well, Your Honour. The way we read

the decision of the Full Court, what it requires is
that the respondent there does have an onus to the

extent that he is required to put before the court	those facts, matters and circumstances which he
relies upon in seeking to establish that he was, in fact, seeking to carry out in good faith the
provisions of the Police Act and, indeed, any
powers which he was exercising as an officer of the
police. He has done that amply in the affidavits
which were filed in court.

DEANE J: But why, if he bears an onus of showing the

circumstances where the matter is being conducted

on the basis that he was acting unlawful? If he
bears an onus to show that he acted unlawfully and

intended execution of an act, does he not have to

establish bona fides? And why should not the

plaintiff be entitled to cross-examine him on his

bona fides?

Webster 14 16/10/92

MR O'HARA: If I could, just before that, raise one matter

of fact. It seems to have been assumed throughout

that this police officer was, in fact, trespassing.

In fact, there is no evidence at all that he was

trespassing. He attended at the premises in

question with the owner and with another police

officer. It is true that the papers reveal that

the male applicant told the owner to depart. There
is no suggestion that the implied licence held by

the police officer was in any way revoked, and it

seems to have been assumed throughout by my friend

that he was a trespasser. There is, in fact, no
evidence at all to indicate that his licence to be

there was in any way revoked, and I think that is

an important point to establish at the start.

DEANE J: But on the assumed facts, we must assume the

plaintiff was lawfully on the premises; he was

there as a tenant entitled to possession on them;

that your client came on to the premises and

ordered him to get off them under threat of arrest

and then, effectively, the plaintiff was escorted

out of the town. Well now, if that is done in

intended execution of the Act, that is the

justification and you assume that that means bona

fide intended execution of the Act, why is not the

plaintiff entitled to cross-examine your client in

the circumstances of this case?

MR O'HARA:  Your Honour, I think - it seems to be clear,

when a police officer or a person fulfilling powers

of his type seeks to rely upon a provision of this

sort, that it is incumbent upon the plaintiff to at

least call into question on the pleadings that he

will be seeking to take issue with the bona fides

which the police officer sets up. If I could refer

Your Honours to page - - -

DEANE J: There is obviously force in that but the case on

47A seems to have turned on the top paragraph on

page 44.

MR O'HARA:  I think what has happened is that the reasoning

in relation to 47A and the reasoning in relation to

the Police Act has probably been expressed

together, and they do have to be dealt with

together. One cannot simply look at section 47A

and divorce that from the Police Act provision.

DEANE J: But you cannot deal with them together on

questions of onus because the onus under one is the

exact opposite of the onus under the other.

MR O'HARA:  Yes. I think in relation to the question of

onus, it is useful to have regard to the comments

made by Mr Justice Ipp at page 48B of the

application book. In our submission, this also

Webster 15 16/10/92

relates to the question of whether or not this is

an appropriate case for special leave to be

granted.	He says:
In the present case the appellants did

not plead any improper or ulterior motive

whatever; nor did they seek in their

affidavits to allege facts which could give

rise to a finding that such a motive existed.

Indeed, counsel for the appellants conceded

that the appellants did not have evidence to

support an allegation of an improper or

ulterior motive.

Now, in our submission, given the fact that

the bona fides of the police officer were not

raised on the pleadings by the plaintiff, given

that there was no attempt made to supplement that

deficiency in the affidavits filed on behalf of the

plaintiff and, indeed, given that that was even

compounded further by the express concession made

by counsel for the plaintiffs, in our submission,

there could not have been any result other than

that. The only result reasonably open was to

dismiss the plaintiffs' case.

DEANE J:  I see the force of that but there is a bit of a

problem in that your side took it upon yourself to

allege good faith and there was a joinder of issue

on that allegation.

MR O'HARA: Merely a joinder of issue.

DEANE J: But if you allege good faith and there is a

joinder of issue, that puts good faith in issue.

It may be, on one approach, on the other section

you have alleged something that was unnecessary for

you to alleged, none the less, there it was.

MR O'HARA:  Your Honour, in our submission, if one looks at

the authorities: cases such as Trobridge v Hardy,

Little v The Commonwealth and Hamilton v

Halesworth, it is incumbent upon the plaintiff to

actually allege these matters and the matter is not

sufficiently raised simply by a joinder of issue.

I realize at this stage there is perhaps something of a blurring between the issue that

arises under section 47A and the provision that we

rely upon under the Police Act. Perhaps let me say

that if one accepts what Your Honour is suggesting

in relation to section 47A, that that same comment

has no application in relation to the defences

raised under the Police Act provision.

TOOHEY J:  Mr O'Hara, are the matters which you have just

been referred to, that is going to improper or

Webster 16 16/10/92

ulterior motive, lack of bona fides and the like,

are they matters which the Supreme Court Rules

require to be specially treated or particularized?

MR O'HARA:  I am not suggesting that our rules of pleading

are any different to the rules of pleading that generally apply in all jurisdictions throughout

Australia, however, they are matters which, in our

submission, must be pleaded and raised by virtue of

the case law on the area otherwise, how is it that

a person in the position of a police officer is to

know that mala fides or, at least an absence of

bona fides, are to be alleged against him? How is

he to k.now that but from a very clear plea to that effect? The general rule must apply that a person

must plead anything which, if it is not pleaded, is

likely to take his opponent by surprise. The rules

do make express provision for pleas in relation to

matters such as malice.

Your Honours, other than referring you to additional passages from Trobridge v Hardy and

passages in other cases which fully support the

sentiments which Your Honours have already quoted

from the decision of Mr Justice Ipp, there is

probably nothing further which we would wish to
bring to your attention other than what is in the

written submission.

MASON CJ: Yes, thank you, Mr O'Hara. Have you anything in

reply, Mr Churches?

MR CHURCHES:  No, I do not think there is anything I can add, Your Honours, to that.

MASON CJ:  Thank you. The Court will take a short

adjournment in order to consider this matter.

AT 12.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.05 PM

MASON CJ: There will be a grant of special leave to appeal

in this matter.

Webster 17 16/10/92

Mr Churches, I do think you ought to give

careful attention to the grounds of appeal and
confine the grounds to such points as can be

reasonably argued in support of the appeal.

MR CHURCHES:  Yes, Your Honour.

AT 12.06 PM THE MATTER WAS ADJOURNED SINE DIE

Webster 18 16/10/92