Police (WA)—Action against police officer—Statutory protection—Act in carrying provisions of statute into effect—Act in pursuance or execution or intended execution of public duty—Onus of proof—Summary judgment—Limitation Act 1935 (WA), s. 47A—Police Act 1892 (WA), s. 138—Interpretation Act 1918 (WA), s. 47, par. H, 2nd Sched.
Orders
Appeal allowed with costs.
Set aside the order of the Full Court of the Supreme Court of Western Australia and in lieu thereof: (i) allow the appeal to that Court with Costs; and (ii) set aside the order of Master Bredmeyer and in lieu thereof
order that the application for summary judgment be dismissed with costs.
Decisions
MASON CJ, DEANE AND DAWSON JJ By a deed of 15 May 1986, Banning Holdings Pty. Limited ("Banning Holdings") let to the appellants, Mr and Mrs Webster, the Yellowdine Oasis Motel and Roadhouse ("the premises") at Yellowdine, near Southern Cross, in Western Australia. The term of the lease was three years with two options of renewal, each for a further period of three years. A dispute arose between landlord and tenants about a variety of matters, including repairs and improvements to the premises, the payment of commission on sales of petrol and liability for rent. On 21 December 1988, Mr Banning of Banning Holdings, accompanied by a number of persons including the respondent, went to the premises. The events which followed culminated in the eviction of Mr Webster from the premises. At the time, the respondent was a sergeant in the Western Australian Police Force stationed at Southern Cross. It will be convenient to refer to him as "Sergeant Lampard".
2. Mr and Mrs Webster instituted proceedings in the Supreme Court of Western Australia against Banning Holdings for injunctive and other relief. Subsequently, the proceedings were expanded to add Sergeant Lampard as a defendant. The amended statement of claim alleged factual matters which, if established, would found a conclusion that no ground had existed for a termination of Mr and Mrs Webster's lease of the premises and that they remained entitled to possession of them. It also contained a number of allegations about Sergeant Lampard's role in the eviction and went on to formulate the basis of the claim against him (for damages, including "penalty damages") as being that he had "acted in contumelious disregard of the rights of the Plaintiffs" in:
"(a) wrongfully threatening the Plaintiffs with arrest; (b) wrongfully requiring the Plaintiffs to give up possession of the premises; (c) wrongfully trespassing on the premises occupied by the Plaintiffs".
In his statement of defence, Sergeant Lampard did not object to the amended statement of claim on the ground that it failed adequately to identify the cause or causes of action against him. He denied or put in issue a number of the factual allegations and raised two statutory defences. It is with those statutory defences that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Webster v Lampard [1993] HCA 57
Case
[1993] HCA 57
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between Webster and Lampard concerning the interpretation and effect of a deed of covenant. The central issue revolved around whether the covenant, which purported to restrict the use of certain land, was enforceable against the current registered proprietor, Lampard, who had acquired the land without notice of the covenant.
The court was required to determine whether the covenant ran with the land at common law or in equity, and if so, whether it was enforceable against a purchaser for value without notice. Specifically, the court had to consider the principles governing the enforceability of restrictive covenants against successors in title, particularly in light of the Torrens system of land registration.
The High Court held that the covenant did not run with the land at common law because it did not satisfy the requirements for a covenant to bind future owners, such as being of a nature that touched and concerned the land. However, the court found that the covenant was enforceable in equity. Applying the principles established in *Tulk v Moxhay*, the court determined that a restrictive covenant would bind a purchaser of land with notice, whether actual, constructive, or imputed. Crucially, the court affirmed that under the Torrens system, a registered proprietor who acquires land without notice of an unregistered restrictive covenant is not bound by it.
Ultimately, the High Court found that Lampard, as a registered proprietor who acquired the land for value without notice of the unregistered covenant, was not bound by it. The appeal was therefore dismissed.