Webster v Lampard

[1993] HCA 57

HIGH COURT OF AUSTRALIA

MASON CJ, DEANE, DAWSON, TOOHEY AND McHUGH JJ

WEBSTER AND ANOTHER v. LAMPARD

(1993) 177 CLR 598

14 October 1993

Police (WA)

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 the present appeal is ultimately concerned. The first is a defence under s.47A of the Limitation Act 1935 (W.A.). The second is a defence under s.138 of the Police Act 1892 (W.A.).

3. In reliance on the two statutory defences, Sergeant Lampard applied to have the amended statement of claim struck out as against him or, alternatively, to have summary judgment entered in his favour. The application came before Master Bredmeyer who ordered that Sergeant Lampard have leave to enter summary judgment on the ground that, by reason of the statutory defences, the action against him was "hopeless and cannot succeed". Mr and Mrs Webster appealed from the Master's decision to the Full Court of the Supreme Court. The Full Court (Malcolm CJ, Pidgeon and Ipp JJ) dismissed the appeal ((1) (1992) 7 WAR 296.). The present appeal to this Court is from the judgment of the Full Court. It should be mentioned that no application for summary judgment was made by Banning Holdings. Presumably, the action against it will proceed in the ordinary course.

4. Section 47A of the Limitation Act relevantly provides that, unless certain conditions as to notice and time are satisfied (which
they were not in this case):

"no action shall be brought against any person ... for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority".

Section 138 of the Police Act incorporates par.H (or s.H ((2) See s.138 of the Police Act and s.47(2) of the Interpretation Act 1918.)) of the Second Schedule to the Interpretation Act 1918 (W.A.) ((3) It did so in accordance with s.47(2) of the Interpretation Act 1918. The Interpretation Act 1984 (W.A.) repealed the earlier Interpretation Act but preserved incorporations effected before its commencement: see s.77(4).). In its application as incorporated by s.138 of the Police Act, par.H relevantly provides:

"No action shall lie against any ... Officer of Police, Policeman, (or) Constable ... on account of any act, matter, or thing done ... in carrying the provisions of (the Police) Act into effect again(st) any parties offending or suspected of offending against the same, unless there is direct proof of corruption or malice". By his defence, Sergeant Lampard identified the grounds on which he claimed that the two statutory defences were applicable to the present case as being: "that at all material times 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 against parties suspected of offending against the same and at all material times (he) was acting in good faith and without corruption or malice". Earlier in the pleading, Sergeant Lampard had, in relation to the defence under s.138, alleged that "the action is not maintainable as there is no proof of corruption or malice". By their reply, Mr and Mrs Webster joined issue with Sergeant Lampard's defence in so far as it did not consist of admissions. The reply also contained joinders of issue on, or specific denials of, the paragraphs of the defence raising the statutory defences and a specific denial that Sergeant Lampard was "entitled to maintain (those) defences" in that "at no material time was (he) acting in the execution of his duty and by reason of that fact the two Statutes concerned are inapplicable".

5. It is important to note at the outset that the issue before the learned Master on the application for summary judgment was not whether Mr and Mrs Webster would probably succeed in their action against Sergeant Lampard. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with "exceptional caution" ((4) General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125, at p.129.) and "should never be exercised unless it is clear that there is no real question to be tried" ((5) Fancourt v. Mercantile Credits Ltd. (1983) 154 CLR
87, at p.99.). As Dixon J commented in Dey v. Victorian Railways Commissioners ((6) (1949) 78 CLR 62, at p.91.):

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his (or her) case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his (or her) opportunity for the trial of his (or her) case by the appointed tribunal" ((7) General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR, at p.130; see, also, Church of Scientology v. Woodward (1982) 154 CLR 25, at p.31.).

6. The clear inference from the material in evidence before the Master in the present case was that from June 1986 until the events of 21 December 1988, that is for a period of two and a half years, Mr and Mrs Webster had been in lawful and undisturbed possession of the
premises as the owners of a current leasehold estate. During that period, they carried on business on the premises. If Mr and Mrs Webster's version of the facts were ultimately to be accepted on a trial, the position would be found to be that, on 21 December 1988, they were legally entitled to remain in exclusive possession of the premises under their lease and to continue to carry on their business
thereon. Neither Mr Banning nor anyone else had any right to evict them. On the morning of that day, Mrs Webster was in Perth. Mr Webster was attending to the service station business which he and Mrs Webster conducted on the premises when two cars and a police patrol van drove in. Five people, including Mr Banning, Sergeant Lampard and another police officer, alighted from the three vehicles and entered "the office" as "another police car pulled into the fore court" ((8) The quotations in this and the following paragraph are from Mr Webster's affidavit of 29 November 1989.). Mr Banning informed Mr Webster that he was getting "evicted right now" and that the police officers were there "to help with that eviction". Mr Webster protested to those present "that this was illegal and that they should contact (his) then solicitor" whose name and firm he stated. Sergeant Lampard said to Mr Webster: "Mr Banning has proved to me that he is the owner of the roadhouse and you've got 20 minutes to get out, otherwise you will be subject to arrest." Mr Webster replied that he would supply Sergeant Lampard with the telephone number of his solicitors in Perth. Sergeant Lampard "merely repeated that (Mr Webster) had to get out". Sergeant Lampard also informed Mr Webster that he would be arrested if he removed anything from the premises.
The evidence indicates that, as one might expect, there was considerable personal property owned by Mr and Mrs Webster (and not subject to any bill of sale) upon the premises at the time.

7. As a consequence of the orders to "get out" and the associated threats of arrest, Mr Webster borrowed a vehicle and set out for Perth. He was "escorted off the premises" and "a police car followed (him) for 100 kilometres to the other side of Southern Cross towards Perth". During the next week, Mrs Webster "rang Southern Cross Police Station from Perth and expressed the wish to attend at the roadhouse to collect personal items and 4 silky terriers". She "was instructed by Sergeant Lampard that she must report to the Southern Cross Police Station on the way to the Yellowdine Roadhouse and that she was not permitted to travel to the Yellowdine Roadhouse without a police escort". Mrs Webster complied with that instruction and a police vehicle accompanied her to and from the premises.

8. In his affidavit evidence, Sergeant Lampard gave a conflicting version of what had occurred on 21 December 1988. He did, however, state that he had "advised" Webster that if he remained on the premises, "he could be committing an offence and could be arrested if he failed to leave". Sergeant Lampard also deposed that, earlier in the day, he had been shown some documents by Mr Banning which satisfied him that "Banning was the owner of the Roadhouse" and "which illustrated that the Plaintiffs (i.e. Mr and Mrs Webster) had been ordered to conduct repairs on the Yellowdine Roadhouse or close it down". What is more important for present purposes is that Sergeant Lampard's affidavit indicates that he was aware that there was an unexpired lease of the premises to Mr and Mrs Webster and that he had been shown "letters from Webster to Banning explaining why he refused to pay any monies owed pursuant to the Lease".

9. It must be stressed that, as we have indicated, the above outline of the relevant facts is largely premised on an assumption that the evidence of the Websters would ultimately be accepted if the matter were to proceed to trial in the ordinary course. In circumstances where the evidence of the Websters was not inherently incredible and where no opportunity for cross-examination had been extended before the Master, that was an assumption which plainly had to be made for the purposes of the application for summary judgment ((9) See, e.g., Wainman v. Hansen (1884) 6 ALT 24; Jacobs v. Booth's Distillery Co. (1901) 85 LT 262.). On that assumption, Sergeant Lampard's conduct,
viewed objectively, was both extraordinary and without legal justification or excuse. He had intervened in what he knew to be a civil dispute between landlord and tenants to order one of the tenants to vacate premises of which the tenants were legally entitled to be, and to remain, in possession. He had threatened the tenant with arrest if he failed to comply with the order. He had forbidden the tenant to remove his or his wife's personal property (apart from some items of clothing) from the premises, again under threat of arrest. A police vehicle, apparently pursuant to his directions, had "escorted" the tenant out of town for some one hundred kilometres. The following week he had forbidden the other tenant to visit the premises except under police escort.

10. Each of the statutory defences upon which Sergeant Lampard relies is expressly confined, by the provision which creates or defines it, to acts having a designated connection with the actual or intended course of official duty. Thus, the defence under s.47A of the Limitation Act is only available in the present case if the acts alleged against Sergeant Lampard were, in the words of that section, "done in pursuance or execution or intended execution of any Act, or of any public duty or authority". Similarly, the defence under s.138 of the Police Act is only applicable if the alleged acts were, in the words of par.H, "done ... in carrying the provisions of (the Police) Act into effect again(st) ... parties offending or suspected of offending against the same".

11. There are many cases in which courts have been called upon to consider protective provisions, such as s.47A and s.138, which require that the relevant act have a designated connection with the course of official duty, such that it be done in "pursuance" or "execution" of some statute or in "carrying" some statute "into effect" ((10) See, e.g., Hamilton v. Halesworth (1937) 58 CLR 369, at p.377; Little v. The Commonwealth (1947) 75 CLR 94, at p.108; Trobridge v. Hardy (1955) 94 CLR 147, at pp.156-158; Marshall v. Watson (1972) 124 CLR 640, at p.651.), or in "pursuance", "execution" or "discharge" of some public duty or office ((11) See, e.g., Theobald v. Crichmore (1818) 1 B. and Ald. 227, at p.229 (106 ER 83, at p.84); Selmes v. Judge (1871) LR 6 QB 724, at pp.727-728; Newell v. Starkie (1919) 83 JP 113, at pp.116, 117; G. Scammell and Nephew Ltd. v. Hurley (1929) 1 KB 419, at p.427; Hamilton v. Halesworth (1937) 58 CLR, at p.374.). Through the judgments in those cases there runs a "clear conception of (a person) intending and trying to do his (or her) duty but labouring under some misapprehension of fact or of law" ((12) Trobridge v. Hardy (1955) 94 CLR, at p.160.). Even in the absence of any explicit qualifying adjective such as "intended" (as in s.47A of the Limitation Act) or "purported", the defence under such statutory provisions is not confined to the case where the defendant's conduct was actually justified as being in pursuance or execution of some statutory provision or in the discharge of some public duty or office ((13) See, e.g., Greenway v. Hurd (1792) 4 TR 553, per Lord Kenyon CJ at p.555 (100 ER 1171, at pp.1172-1173); Theobald v. Crichmore (1818) 1 B. and Ald., per Lord Ellenborough CJ at p.229 (106 ER 83, at p.84); Cann v. Clipperton (1839) 10 Ad. and E. 582, per Williams J at p.589 (113 ER 221, at p.224); Hughes v. Buckland (1846) 15 M. and W. 346, per Parke B. at pp.355-356 (153 ER 883, at p.887); Spooner v. Juddow (1850) 4 Moore Ind.App. 353, per Lord Campbell at pp.379-380 (18 ER 734, at p.744); G. Scammell and Nephew Ltd. v. Hurley (1929)
1 KB, per Scrutton LJ at p.427; Hamilton v. Halesworth
(1937) 58 CLR, per Starke J at p.374; Little v. The
Commonwealth (1947) 75 CLR, per Dixon J at pp.108-109;
Trobridge v. Hardy (1955) 94 CLR, per Taylor J at p.171;
Marshall v. Watson (1972) 124 CLR, per Stephen J at
pp.650-651.). If it were, the protection which such provisions provide to those acting bona fide in the course of public duty would be illusory. Subject to an important qualification, it usually suffices for the purposes of such a provision that the person invoking the defence genuinely but mistakenly believed that he or she was acting within the limits of the authority expressly or impliedly conferred by the relevant statutory provision or office. The qualification is that, notwithstanding such a genuine but mistaken belief, the defence under such protective provisions is not available to defeat a plaintiff's otherwise well-founded claim if it appears that the defendant was, in fact, "actuated solely or predominantly by a wrong or indirect motive" ((14) Trobridge v. Hardy (1955) 94 CLR, per Kitto J at p.162.), as for instance the satisfaction of personal malice or the gaining of some other benefit or objective "entirely outside statutory justification" ((15) G. Scammell and Nephew Ltd. v. Hurley (1929) 1 KB, per Scrutton LJ at p.429; and see, generally, Trobridge v. Hardy (1955) 94 CLR, per Taylor J at p.175.), such as a corrupt benefit.

12. Where a statutory defence is available in respect of acts having some such designated connection with the actual or intended course of official duty, the general onus of establishing that connection will, in the absence of some identified contrary legislative intention, rest on the defendant who invokes the defence ((16) See, e.g., Rochfort v. Rynd (1881) 8 LR Ir 204, at pp.209-210; Sayer v. Lichfold (1854) 23 LT 324, at p.325; Newell v. Starkie (1919) 83 JP, per Lord Finlay at p.117; Kyloh v. Wilsen (1923) SASR 501, per Poole J at p.504.). Thus, in the present case, the general onus of establishing that Sergeant Lampard's alleged acts had, for the purposes of s.47A of the Limitation Act, been "done in pursuance or execution or intended execution" of the Police Act or of his public duties or authority as a sergeant in the Western Australian Police Force rested upon him as the defendant claiming the benefit of the defence under the section. Similarly, the general onus of proving that, for the purposes of his defence under s.138 of the Police Act, those acts had, in the words of par.H as applied by that section, been "done ... in carrying the provisions of (the Police) Act into effect again(st) any parties offending or suspected of offending against the same" lay upon him. It is true that there are some statements of authority which, particularly if taken out of context, can be construed as supporting a proposition that, for the purpose of statutory defences such as those involved in the present case, the general onus of proving that a public official was acting otherwise than genuinely in the intended discharge of his duty lies upon the party who asserts it ((17) See, e.g., G. Scammell
and Nephew Ltd. v. Hurley (1929) 1 KB, at p.429; Hamilton v.

Halesworth (1937) 58 CLR, at p.380.). Properly understood, however, such statements are not authority for any such broad proposition in relation to onus of proof. They are related to the "qualification" referred to in the preceding paragraph of this judgment and are concerned with the situation which exists where the prima facie inference from the conceded or proven facts is that the defendant was genuinely, albeit mistakenly, purporting or intending to act in pursuance of statutory authority or duty but it is alleged by the plaintiff that the defendant was really actuated "not ... by an honest desire to do his (or her) duty" ((18) Hamilton v. Halesworth (1937) 58 CLR, at p.380.) but by some impermissible purpose or
motive. In that situation, the onus of establishing that the defendant's ostensible pursuit of public duty was pretended rests only upon the plaintiff as the party who asserts it. As has been indicated, however, that stage will not be reached unless and until the defendant prima facie brings himself or herself within the words of the relevant statutory requirement.

13. One can find some support in past cases for the view that a defendant who genuinely but mistakenly believed that he or she was acting in pursuance or execution of a statutory provision or in the discharge of some public duty or office is not entitled to rely upon a defence of the kind involved in the present case unless his or her belief in that regard was based on objectively reasonable grounds. That view has not, however, prevailed. The course of authority is traced by Dixon J in Little v. The Commonwealth ((19) (1947) 75 CLR, at pp.108-113.). As Fullagar J indicated in Trobridge v. Hardy ((20) (1955) 94 CLR, at p.157.), it should now be accepted as 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". Notwithstanding some ambiguous statements in earlier cases ((21) See, e.g., Roberts v. Orchard (1863) 2 H and C 769, at p.774 (159 ER 318, at pp.320-321).), it should also now be accepted as settled that such a defence is available regardless of whether the genuine but mistaken belief was wholly or partly the result of error of law ((22) See Little v. The Commonwealth (1947) 75 CLR, at pp.110-112.).

14. The decision of the learned Master that Sergeant Lampard should be given leave to enter summary judgment must be examined in the light of the foregoing discussion. As has been said, it was incumbent on the Master, in the absence of any opportunity of cross-examination, to dispose of the case on the basis that the Websters' version of the facts, which was not inherently incredible, would ultimately be accepted on the trial of the action. On that version of the facts, Sergeant Lampard's conduct on 21 December 1988 was, as has been said, both extraordinary and without legal justification or excuse. Putting to one side for the moment Sergeant Lampard's untested affidavit evidence about his subjective intention and beliefs, it would clearly be at least open to a trial court to be unpersuaded that Sergeant Lampard was genuinely acting in pursuance or execution or intended execution of any provision of the Police Act or in the intended discharge of his duties as a police officer when he participated in the expulsion of Mr Webster, under threat of arrest, from the premises. On that version of events, Sergeant Lampard had intervened in what he knew to be a civil dispute between landlord and tenants and had unjustifiably ordered one of the tenants to "get out" of premises of which the tenants were, and had been for a number of years, peaceably in possession as the owners of a current leasehold estate. He had disregarded the tenant's request that he speak with the tenant's solicitor. He had unjustifiably threatened the tenant with arrest if he remained on the premises. Clearly, the learned Master's decision can only be sustained if the effect of Sergeant Lampard's untested affidavit evidence as to his subjective intention and beliefs is such as to make it apparent that the Websters' case against him must inevitably fail. We turn to a consideration of that evidence.

15. Sergeant Lampard's affidavit of 14 June 1991 states that, on the morning of the 21 December, he "received a complaint" from Mr Banning "advising (him) of his intention" to have Mr and Mrs Webster "evicted" from the premises "and his reasons for doing so". Sergeant Lampard set out "to satisfy (him)self that Banning was the registered proprietor of the Roadhouse and that he had just cause to evict Webster from the Roadhouse". He was shown "a number of documents by Banning which proved that he was the owner of the roadhouse" and confirmed that information by a conversation with "an employee at the Local Shire". Mr Banning also showed him "letters from the Yilgarn Shire Health Inspector which illustrated (that Mr and Mrs Webster) had been ordered to conduct repairs on the Yellowdine Roadhouse or close it down". He read some letters from Banning to Mr and Mrs Webster and from them ascertained "that (Mr and Mrs Webster) had leased the property and had failed to fulfil the conditions pursuant to the Lease". He was "also shown letters from Webster to Banning explaining why he refused to pay any monies owed pursuant to the Lease". His own observations led him to the conclusion that the premises were in a dilapidated and very bad state and he believed that the roadhouse had been "in a similar state of disrepair" since January 1988. The affidavit contains a general assertion that, before Sergeant Lampard "attended at" the premises on 21 December 1988, he "was of the view that (Mr Webster) was unlawfully on the premises".

16. The affidavit also contains three paragraphs to the effect that Sergeant Lampard's actions on 21 December had been in the execution or
intended execution of his duty. These paragraphs read:

"27. I confirm that at all material times on the 21st December 1988 I was acting in the execution or intended execution of my duty as a Police Officer against Webster who I understood to be unlawfully on the premises. 28. At all material times I was acting bona fide in the execution of my duty and only out of a desire to carry out my responsibilities as a Police Officer. 29. At all material times I was acting in the bona fide belief that Webster was in breach of the Police Act by being unlawfully on premises and I acted in a bona fide attempt to give effect to the provisions of the Police Act by informing Webster that he could be charged with an offence of being unlawfully on the premises if he remained on the premises."

Whatever use may legitimately be made of such general assertions or submissions, they cannot suffice, as against the Websters, to foreclose the issues of fact which they encompass ((23) See, e.g., Cann v. Clipperton (1839) 10 Ad and E, at p.589 (113 ER, at p.224); Leete v. Hart (1868) LR 3 CP 322; Little v. The Commonwealth (1947) 75 CLR, at p.111; Trobridge v. Hardy (1955) 94 CLR, at p.172.).

17. There is nothing in the affidavits filed on behalf of Mr and Mrs Webster which directly contradicts the above evidence of Sergeant Lampard about his subjective intention and beliefs. If his evidence in that regard were ultimately to be accepted on a trial of the action, the statutory defence upon which he relies would, in the absence of any allegation of some impermissible ulterior purpose or motive, succeed. That being so, the question arises whether it was open to the Master to determine the application for summary judgment on the basis that it was inevitable that Sergeant Lampard's evidence would ultimately be so accepted. In circumstances where Mr and Mrs Webster had been given no opportunity of testing Sergeant Lampard's evidence by cross-examination, the answer to that question seems to us to be that it was not so open.

18. Even when it is viewed in isolation, there are some aspects of Sergeant Lampard's affidavit evidence which invite further inquiry by cross-examination. One can disregard the discrepancy between his evidence to the effect that he satisfied himself that Mr Banning was the registered proprietor of the premises and the documentary evidence which discloses that the registered proprietor of the premises was Banning Holdings. Clearly enough, the likely explanation of that is that Sergeant Lampard drew no distinction between the person, Mr Banning, and the company, Banning Holdings Pty. Limited. No such obvious explanation is, however, available for the discrepancy between Sergeant Lampard's evidence that he was shown letters from the Local Shire "which illustrated" that Mr and Mrs Webster "had been ordered to conduct repairs" on the premises and the documents annexed to his affidavit, purportedly in support of that statement, which unmistakably disclose that the order in question was not directed to Mr and Mrs Webster at all. It was directed to Banning Holdings. More important, Sergeant Lampard's affidavit evidence contains no real explanation of why he thought it was part of his function as a police officer to intervene in a dispute between landlord and tenants to threaten to arrest one of the tenants if he remained upon premises of which the tenants were, and for a number of years had been, in possession and of which they obviously claimed to be entitled to remain in possession. There is no suggestion in the affidavit that Sergeant Lampard believed that the Websters' lease of the premises had already been terminated. The principal suggested justification would seem to be that he considered that Mr Banning was entitled to evict the tenants by reason of the continuing state of disrepair of the premises and the Local Shire's order which he had been shown (but which, as has been said, was directed to Banning Holdings). The affidavit contains no statement to the effect that Sergeant Lampard was unaware of the provision of s.81 of the Property Law Act 1969 (W.A.) which effectively required notice before re-entry for breach of a covenant or condition as to repair. Nor does it assert that he believed that any notice pursuant to that section had been given. His statement that he believed that, even before any attempt was made to evict Mr Webster, he "was unlawfully on the premises" is left unexplained. On the material in evidence, the possible explanations of it would seem to be an unexpressed belief that the Websters' lease had already been formally terminated or an unstated view that a tenant who is in breach of the conditions of a current lease is unlawfully on the leased premises.

19. When Sergeant Lampard's evidence about his beliefs and intention is read in the context of the version of the facts propounded
by the Websters, the questions which invite investigation by cross-examination become much more pressing. Why would Sergeant Lampard disregard a request that he speak to the Websters' solicitor in circumstances where he was threatening Mr Webster with arrest unless he immediately vacated premises of which he had been in apparently lawful possession for some two and a half years? Why, in circumstances where it must have been obvious to him that Mr and Mrs Webster would have considerable personal property on the premises, did he threaten Mr Webster with arrest if he removed any items of personal property? Why was it that, apparently under his authority, a police vehicle "escorted" Mr Webster for some one hundred kilometres along the road towards Perth and thereby, in the argot of another West and another time, effectively "ran him out of town"? Why was it that Mrs Webster was subsequently informed that she could not even visit the premises except "under police escort"? It is true that Sergeant Lampard denies those matters. For the reasons which have been explained, however, it must be assumed for present purposes that the Websters' version of the facts will ultimately be accepted if the matter goes to trial.

20. It may be that, on a trial of the action, the above questions will be satisfactorily answered. It may be possible to speculate that, even if some or all of them remain without satisfactory answer and the Websters succeed on the issues between themselves and Banning
Holdings, it is more likely than not that a trial court will eventually reach the conclusion, after seeing and hearing Sergeant Lampard give his evidence, that he was purportedly or genuinely, albeit unwisely, acting in the intended discharge of his duties as a police officer. Nonetheless, the material before the Master was clearly not such as to justify a finding that the proceedings against Sergeant Lampard are "hopeless" in that they will inevitably fail if allowed to proceed to trial in the ordinary course. It follows that the order giving leave to Sergeant Lampard to enter summary judgment cannot be sustained.

21. There are three additional matters which should be mentioned. The first is that Sergeant Lampard's evidence is, in relation to a number of disputed matters, supported and supplemented by the untested affidavit evidence of Mr Banning. Mr Banning's evidence in that regard may prove to be of critical importance on the trial. It does not, however, render the Websters' version of the facts so obviously unacceptable or the ostensible propriety of Sergeant Lampard's conduct so obviously incontestable that the case should not be permitted to go to trial in the ordinary way.

22. The second additional matter is that reliance has been placed on behalf of Sergeant Lampard on the provisions of s.82B of the Police Act that, under pain of a maximum penalty of a fine of five hundred dollars or six months' imprisonment, a person:

"shall not, without lawful authority, remain on any premises after being warned to leave those premises - ...
(b) in the case of premises other than premises occupied
by the Crown or a public authority, by the owner ...
or by a member of the Police Force". Sergeant Lampard claims that he expressly invoked the provisions

of

s.82B when threatening Mr Webster with arrest. Mr Webster asserts that he is "positive" that Sergeant Lampard "at no time made

reference

to" the section.

23. On the assumption that the Websters' version of events is ultimately accepted on the trial, s.82B was not applicable in the present case for the reason that Mr Webster was, at all relevant times, lawfully entitled to remain on the premises. It is true that, even on that assumption, Sergeant Lampard's belief about the relevance of s.82B to a case of an apparently genuine dispute between landlord and tenant about the tenant's entitlement to continued possession may well be an important factual issue on the trial of the proceedings. Nonetheless, the fact that s.82B is only applicable in a case where a person remains on premises "without lawful authority" precluded the section from being of decisive importance on the application for summary judgment. In particular, it provided no answer to the various questions mentioned above which invited investigation in cross-examination. Nor did it provide any adequate basis for a conclusion that the case against Sergeant Lampard was hopeless or that his evidence about his beliefs and intention would inevitably be accepted if the matter were allowed to proceed to trial in the ordinary way.

24. The final additional matter is that there was some discussion in the course of argument about the effect of the words "unless there is direct proof of corruption or malice" in par.H of the Second Schedule to the Interpretation Act 1918. However, as the words of par.H and the judgment in Trobridge v. Hardy make clear ((24) (1955) 94 CLR, per Fullagar J at pp.154-155; per Kitto J at pp.161-162; per Taylor J at pp.172-173. And note that par.H, as applicable to the present
case, contains no time requirements but otherwise relevantly corresponds with the form applicable in Trobridge v. Hardy.), those words become relevant only if the stage is reached where a defendant has discharged the primary onus of establishing that the particular case prima facie falls within par.H. In this case, the order for summary judgment cannot be allowed to stand for the reason that the material in evidence before the Master did not sustain a finding that it was inevitable that a trial court, after a full hearing including the cross-examination of relevant witnesses, would find that Sergeant Lampard had in fact been genuinely intending or purporting to carry the provisions of the Police Act into effect against a person suspected of offending against it. As a result, it is strictly unnecessary for us to determine the precise effect of the requirement of "direct proof" of any allegation of malice or corruption. It is, however, appropriate that we indicate our general agreement with what Kitto J said on that subject in Trobridge v. Hardy ((25) (1955) 94 CLR, at pp.162-165.), namely, that a distinction is to be drawn between "(e)vidence which points to a particular motive which is a wrong motive" ((26) ibid, at p.163.), which goes directly to the issue of malice (even if inferences are required to be drawn) and evidence which may "negatively" or indirectly prove malice "by making other possible causes (of the relevant conduct) appear unlikely" ((27) ibid, at p.165; see, also, per Taylor J at pp.173-175; but cf. per Fullagar J at pp.155-156.).

25. The appeal should be allowed with costs. The judgment and order of the Full Court of the Supreme Court should be set aside. In lieu thereof, it should be ordered that the appeal to the Full Court be allowed with costs, that the judgment and order of the Master be set aside and that the application for summary judgment be dismissed with
costs.

TOOHEY J The respondent is a police officer. At the relevant time he was stationed at Southern Cross, a country town in Western Australia. The appellants, who are husband and wife, had leased from Banning Holdings Pty. Ltd. the Yellowdine Oasis Motel and Roadhouse. Yellowdine is not far from Southern Cross.

2. The events giving rise to the litigation now before the Court took place on 21 December 1988. In describing those events it must be understood that there has been no trial of the action brought by the appellants against the respondent. There have been affidavits filed on behalf of the parties, mainly in connection with an application made by the respondent for summary judgment on the basis that, by reason of certain statutory provisions, the appellants' action against him was not maintainable. The affidavits indicate that there is considerable disagreement as to the events of 21 December. The evidence has not yet been tested. It was therefore appropriate to deal with the respondent's application on the basis that, in the event of a conflict, the version of events most favourable to the appellants' case would be accepted.

3. Mr Banning, a director of Banning Holdings Pty. Ltd., claimed that the appellants were in breach of their lease. On 21 December 1988 he secured the help of the respondent to have them evicted from the premises. The respondent, together with another police officer,
arrived at the roadhouse. Mr Banning told the male appellant (the female appellant was in Perth at the time) that the police were there to help with the appellants' eviction. The male appellant protested. The respondent said that Mr Banning had proved he was the owner of the roadhouse and the male appellant had twenty minutes to get out, otherwise he would be arrested. A verbal exchange followed, the male appellant urging the respondent to contact the appellants' solicitors in Perth and the respondent threatening to arrest the male appellant unless he left the premises. The male appellant eventually left. According to his evidence: "I was escorted off the premises and a police car followed me and escorted me for 100 kilometres to the
other side of Southern Cross towards Perth."

4. The appellants brought an action in the Supreme Court of Western Australia against Banning Holdings Pty. Ltd. and against the respondent. We are concerned only with the position of the respondent. The cause of action pleaded against him is in the following terms:

"The (respondent) 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 has acted in contumelious disregard of the rights of the
Plaintiffs."

The appellants claimed against the respondent "Damages and penalty damages together with interest thereon".

5. The cause of action pleaded against the respondent and the nature of the relief claimed invite a number of questions but they are not the subject of this appeal. The application for summary judgment was based on two statutory provisions, each of which the respondent contended protected him from the action against him.

6. The first statutory provision relied upon by the respondent in answer to the appellants' claim was s.47A of the Limitation Act 1935 (W.A.) which provides that, unless notice to a prospective defendant has been given in accordance with the section and an action is commenced within one year from the date on which the cause of action accrued:

"no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority". It was common ground that the appellants had not complied with the procedural requirements of s.47A.

7. As to the second of the provisions relied upon by the respondent, the Police Act 1892 (W.A.), s.138 incorporates par.H of the Second Schedule to the Interpretation Act 1918 (W.A.) ((28) It does so in
accordance with s.47(2) of the Interpretation Act 1918. The Interpretation Act 1984 (W.A.) repealed the earlier Act but maintained incorporations existing before the repeal.). Paragraph H reads as follows:

" No action shall lie against any Justice of the Peace, Officer of Police, Policeman, Constable, Peace Officer, or any other person in the employ of the Government authorized to carry the provisions of this Act, or any of them, into effect, or any person acting for, or under such persons, or any of them, on account of any act, matter, or thing done, or to be done, or commanded by them, or any of them, in carrying the provisions of this Act into effect again(st) any parties offending or suspected of offending against the same, unless there is direct proof of corruption or malice; and if any such person shall be sued for any act, matter, or thing which he shall have so done, or shall so do, in carrying the provisions of this Act into effect, he may plead the general issue and give the special matter in evidence; and in case of judgment after verdict, or by a Judge sitting as a jury, or on demurrer being given for the defendant, or of the plaintiff discontinuing, or becoming non-suit in any such action, the Court before which the action was brought may award treble costs to the defendant or such portion of those costs as the Court thinks fit."

The respondent pleaded that:

"at all material times 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 against parties suspected of offending against the same and at all material times (he) was acting in good faith and without corruption or malice".

8. In relation to each of s.47A of the Limitation Act and par.H of the Second Schedule to the Interpretation Act, the respondent claimed to have been carrying into effect the provisions of s.82B of the Police Act, which makes it an offence to remain on premises without lawful authority after being warned to leave by a member of the Police Force.

9. Master Bredmeyer acceded to the respondent's application and dismissed the appellants' action against the respondent. That decision was upheld on appeal to the Full Court of the Supreme Court of Western Australia ((29) Webster v. Lampard (1992) 7 WAR 296.) (Malcolm CJ and Pidgeon J agreeing with Ipp J who wrote the leading judgment). The approach taken by the Full Court in dismissing the appellants' appeal was as follows.

1. The protection under s.47A of the Limitation Act "is afforded

not

only when an act is done in pursuance or execution of any Act, but also in respect of any 'intended execution' of any Act" ((30) ibid, at p.300.) . For a defence to arise under s.47A, the intention to execute the Act must be genuine or bona fide. 2. Once the respondent had laid a factual basis for the defence,

the

onus lay on the appellants to show that the respondent lacked a genuine belief that he was authorised by the Police Act to do what he did. 3. That onus could only be discharged by proof of "malice, or

spite,

or corruption, or a desire to injure or assist some person or cause" ((31) ibid, at p.302.) on the part of the respondent and it was incumbent on the appellants to plead improper or ulterior motive. They failed to do so; indeed their counsel conceded that they did not have evidence to support an allegation of improper

or

ulterior motive. 4. There being some factual basis for the respondent's belief

that

he was executing s.82B of the Police Act and there being no allegation or evidence of improper or ulterior motive, the defence under s.47A of the Limitation Act must prevail. 5. The same result obtains in the case of par.H of the Second Schedule to the Interpretation Act. As the appellants failed to plead malice or corruption and failed to tender evidence tending to establish these matters, the respondent had to succeed on this aspect of his defence also.

10. The problem with the approach taken by the Full Court lies at the very outset of its analysis. Before s.47A of the Limitation Act can operate as a defence there must be an "act done in pursuance or execution or intended execution of any Act". And before par.H of the Second Schedule to the Interpretation Act can be relied upon there must be an "act, matter, or thing done ... in carrying the provisions of (the Police) Act into effect". The Full Court took as its starting point the respondent's deposed belief as to the lawfulness of his demand that the appellants leave the premises. The respondent deposed as to an oral report by Mr Banning that he proposed to evict the appellants. He further deposed as to inquiries he had made to satisfy himself that Mr Banning was the owner of the premises and that the appellants had failed to comply with an order from the Yilgarn Shire Health Inspector to carry out various works on the premises which had been declared unfit for human habitation. (In fact, the order from the Shire which was sighted by the respondent was directed not to the appellants but to "Banning Holdings".) The evidence went no further than to establish that the respondent believed that the appellants had failed to comply with the requirements of the local authority. While the respondent deposed that before attending the roadhouse he had been of the view that the male appellant "was unlawfully on the premises", he said nothing to indicate that he believed the appellants' lease to have been terminated. On the other hand there were sworn statements by the male appellant that he had told the respondent and others present that the proposed eviction was "illegal" and that he had urged the respondent to contact the appellants' solicitors in Perth. The respondent's sworn statements go to his belief that Mr Banning was the "lawful owner of the Yellowdine Roadhouse and that if Webster remained he could be committing an offence and could be arrested if he failed to leave" but they do not go to the respondent's state of mind as to the status of the lease. Unless the lease had been terminated, the appellants could not be said to be on the premises "without lawful authority" and s.82B of the Police Act could not begin to have any operation.

11. Nothing deposed to by the respondent evinced a belief on his part that the lease had been terminated or a belief in facts which, if true, would have justified removal of the appellants from the premises. The potential operation of s.47A of the Limitation Act and par.H of the Second Schedule to the Interpretation Act could only be invoked and questions as to onus of proof could only arise once it appeared that the respondent, in demanding that the appellants leave the premises, was acting under statutory authority or on a genuine belief that he was so acting. The point is made by Fullagar J in Trobridge v. Hardy when his Honour said ((32) (1955) 94 CLR 147, at p.161.):

" 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, the defendant honestly intended by doing what he did to put the law in force".

In Trobridge v. Hardy the focus was on the honest intention of the defendant to put the law into effect when he arrested the plaintiff. The focus here is not so much on the honesty of the respondent's belief, rather on whether what he believed justified a demand that the appellants leave the premises. The evidence presently available does not allow that question to be answered in the affirmative.

12. The proper approach to be taken in the present case may be discerned from the following passage in the judgment of Dixon and McTiernan JJ in Hamilton v. Halesworth ((33) (1937) 58 CLR 369, at p.380.):

"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, although it turned out that the plaintiff was not in fact guilty (See Hermann v. Seneschal ((34) (1862) 13 CB(N.S.) 392, at pp.402, 404 (143 ER 156, at pp.160, 161).); Selmes v. Judge ((35) (1871) LR 6 QB 724, at p.728.)). When a defendant is found purporting thus to execute what is actually

a

statutory power, the burden rests upon the plaintiff of proving that he was not actuated by an honest desire to do his duty:

that

he was not acting in the intended, but in the pretended, execution of his functions (Cf. G. Scammell and Nephew Ltd.

v.

Hurley ((36) (1929) 1 KB 419, at pp.427, 429.))."

13. But the Full Court did not approach the matter in this way. It looked directly at the question of onus without first determining whether the respondent was entitled to demand that the appellants leave the premises or whether he had a genuine belief that he was entitled so to demand. In particular the Full Court did not ask itself in what circumstances the appellants, as lessees, could be said to be on the premises without lawful authority. It was inappropriate for these questions to be dealt with on a strike-out application, given the state of the evidence on the affidavits; certainly, they could not be answered against the appellants on that evidence. The form of proceeding may have contributed to a failure to concentrate on the primary question.

14. It is unfortunate that this matter has had such a long history without the substance of the appellants' claim against the respondent being reached. That is a risk inherent in the disposition of actions summarily and it calls for caution in the application of this procedure ((37) See General Steel Industries Inc. v. Commissioner for
Railways (N.S.W.) (1964) 112 CLR 125, at p.130; Church of Scientology v. Woodward (1982) 154 CLR 25, at p.31.). The appeal must be allowed, the orders of the Full Court and Master Bredmeyer set
aside and the application for summary judgment dismissed.

McHUGH J In my opinion, this appeal must be allowed. The facts, issues and statutory provisions are set out in other judgments. Except to the extent necessary to explain my reasons, there is no need to repeat them.

2. The Full Court held that, when a defendant claims that a wrongful act was done "in pursuance or execution or intended execution of any Act, or of any public duty" ((38) s.47A of the Limitation Act 1935 (W.A.).), the plaintiff bears the onus of negativing that defence. In accordance with this reasoning, the Full Court held that to succeed in this case the plaintiff must prove that the defendant did not have a genuine belief that the wrongful act giving rise to the claim for damages was authorised by law and did not genuinely intend to give effect to the law. However, with great respect to their Honours, they erred in reaching these conclusions.

3. Statutory provisions, giving immunity from action to persons discharging public functions, vary in their language. Nevertheless, the courts have construed such provisions by reference to general principles rather than by a textual analysis of individual enactments. Thus, it is a cardinal rule of construction of such provisions that they are to be construed as giving protection "not where the provisions of the statute have been followed, for then protection would be unnecessary, but where an illegality has been committed by a person honestly acting in the supposed course of the duties or
authorities arising from the enactment" ((39) Little v. The Commonwealth (1947) 75 CLR 94, at p.108.). It is also a principle of construction of such provisions that a defendant who has no intention of exercising a power for the purpose for which it was conferred or who has no honest belief in a state of facts which would have excused the wrongful act is not entitled to the benefit of a statutory immunity from liability ((40) ibid, at pp.108-112.).

4. In determining which party bears the onus of proof in respect of a provision giving immunity from liability, the courts have also acted in accordance with general principles. A plea of statutory protection is a plea of confession and avoidance. Consistently with that proposition, a long line of authority has assumed that the onus is on the defendant to prove the facts which bring the case within the statutory protection ((41) Cann v. Clipperton (1839) 10 Ad. and E. 582 (113 ER 221); Cox v. Reid (1849) 13 QB 558 (116 ER 1376); Booth v. Clive (1851) 10 CB 827 (138 ER 327); Hermann v. Seneschal (1862) 13 CB (NS) 392 (143 ER 156); Roberts v. Orchard (1863) 2 H. and
C. 769 (159 ER 318); Selmes v. Judge (1871) LR 6 QB 724; Hazelton v. Potter (1907) 5 CLR 445; Newell v. Starkie (1919)
83 JP 113; Kyloh v. Wilsen (1923) SASR 501.). The defendant discharges the onus when the evidence establishes that the allegedly wrongful act of the defendant was the result of an apparent exercise or intention to exercise a power or discharge a duty. By "apparent" I mean that, to all outward appearances, the facts show that a power or duty has been exercised or discharged. In such a case, the defendant is entitled to the protection of the statutory immunity unless in reply the plaintiff proves that the power was exercised or intended to be exercised or the duty discharged for a purpose other than that for which it was conferred or imposed ((42) Newell v. Starkie (1919) 83 JP, at p.117; G. Scammell and Nephew Ltd. v. Hurley (1929) 1 KB 419, at p.429; Hamilton (1937) 58 CLR, at p.380.). Because the exercise of a power or discharge of a duty for an improper purpose is not a lawful exercise of the power or lawful discharge of the duty, a defendant who uses a power or discharges a duty for an improper purpose is not entitled to the protection of a statutory immunity against a claim arising from the wrongful exercise of power or discharge of duty. In that situation, the defendant is not executing or attempting to execute the power or discharging the duty. If the defendant does not prove an apparent exercise of power or discharge of duty, reliance on the defence will fail unless the defendant proves that he or she had an honest belief that the wrongful act was authorised by law and made an honest attempt to give effect to that law. If the defendant was not relying on any particular legal justification for his or her conduct, the defendant can still succeed by proving an honest belief in a state of facts which, if it had existed, would have made the wrongful act authorised by law. However, it is not necessary for the defendant to prove that the belief was based on reasonable grounds ((43) Chamberlain v. King (1871) LR 6 CP 474; Hamilton v. Halesworth
(1937) 58 CLR 369, at pp.374, 380; Little (1947) 75 CLR, at pp.108-113; Trobridge v. Hardy (1955) 94 CLR 147, at pp.156-157, 161-162. See generally, Hermann (1862) 13 CB (NS), at p.402 (143 ER, at p.160); Roberts v. Orchard (1863) 2 H. and C. 769 (159 ER 318); Selmes v. Judge (1871) LR 6 QB 724.). Consequently, the defence of statutory protection will fail unless the defendant either proves an apparent exercise of, or intention to exercise, a power or discharge a duty or proves, in the words of Dixon J, that he or she "(was) honestly engaged in a course of action that falls within the general purpose of the provision" ((44) Little (1947) 75 CLR, at p.112.).

5. In accordance with these principles, a constable who purports to arrest a person is not entitled to the protection of a section such as s.47A of the Limitation Act 1935 (W.A.) if the connection between the facts and the arrest is not apparent and the defendant fails to prove that he was intending to implement the law ((45) Trobridge (1955) 94 CLR 147.). In Trobridge v. Hardy ((46) ibid), the defendant was actuated by malice. However, this Court held that, irrespective of his malice, the defendant could not rely on par.H of the Second Schedule to the Interpretation Act 1918 (W.A.), as incorporated by s.138 of the Police Act 1892 (W.A.), in answer to a claim for damages for wrongful arrest because objectively the facts gave no reasonable basis for the arrest and the defendant was not "intending and trying to do his duty" ((47) ibid, per Fullagar J at p.160.) or had no "honest intention to enforce the law" ((48) ibid, per Kitto J at pp.161-162.). The defendant failed in Trobridge, not because the plaintiff had proved malice, but because the defendant had failed to prove that he was honestly intending to exercise the power of arrest.

6. However, once it is established that, to all outward appearances, the act of the defendant was done in the exercise or the intended exercise of a statutory or common law power or the discharge of a duty, the onus is on the plaintiff to prove that the apparent exercise of power or discharge of duty was not in law a proper exercise of the power or discharge of the duty. If the evidence fails to establish that the apparent exercise of power or discharge of duty was actuated by an improper motive or purpose, the defence of statutory protection will succeed. Thus, in G. Scammell and Nephew Ltd. v. Hurley ((49) (1929) 1 KB 419.), the English Court of Appeal upheld an appeal by Councillors against a judgment that they had conspired to induce their Council to breach its statutory duty by discontinuing the supply of electricity for power and lighting to the plaintiffs. Faced with the threat of a general strike that might leave their Borough without power or light, the Councillors agreed with a trade union not to supply power, except to hospitals, if the members of the union would continue to supply lighting for the Borough. In their defence, the Councillors
alleged that in cutting off the plaintiff's supply they had nevertheless acted in discharge of their general statutory duty to supply electricity for power and lighting to the Borough and relied on the protection of the Public Authorities Protection Act 1893 (U.K.). Counsel for the plaintiffs conceded at the trial that no issue arose concerning the honesty of the Chairman of the Committee of the Council who had conducted the negotiations with the union. In finding for the Councillors, Scrutton LJ said ((50) ibid, at p.429.):

"In my opinion, when a defendant appears to be acting as a member of a public body under statutory authority and pleads the Public Authorities Protection Act, the plaintiff can defeat that claim by proving on sufficient evidence that the defendant was not really intending to act in pursuance of the statutory authority, but was using his pretended authority for some improper motive, such as spite, or a purpose entirely outside statutory justification. When defendants are found purporting to execute a statute, the burden of proof in my opinion is on the plaintiffs to prove the existence of the dishonest motives above described and the absence of any honest desire to execute the statute, and such existence and absence should only be found on strong and cogent evidence."

7. Whether the Councillors were purporting to discharge their statutory duty to provide power and light to the Borough may be doubted. But whether or not the case was correctly decided on the facts, the principle formulated by Scrutton LJ is regarded as authoritative. It was accepted by Dixon and McTiernan JJ in Hamilton v. Halesworth ((51) (1937) 58 CLR, at p.380.) when they said that, when "a defendant is found purporting thus to execute what is actually a statutory power, the burden rests upon the plaintiff of proving that he was not actuated by an honest desire to do his duty: that he was not acting in the intended, but in the pretended, execution of his functions".

8. Contrary to the view taken by the Full Court in the present case, however, neither Scrutton LJ nor Dixon and McTiernan JJ were seeking to lay down a general rule that the burden of proving that the defendant was not acting in the intended execution of his or her functions is always on the plaintiff. In so far as those judgments place an onus on the plaintiff, they are dealing with the case of an apparent intention to exercise a power or discharge a duty. If no more appears than that the defendant claims that he or she was intending to exercise a power or discharge a public duty, the onus is on the defendant to prove that he or she "honestly engaged in a course of action that falls within the general purpose of the provision" ((52) Little (1947) 75 CLR, at p.112.).

9. The language which Scrutton LJ used - "appears to be acting as a member of a public body under statutory authority", "using his pretended authority" and "found purporting to execute a statute" - is not consistent with the proposition that the plaintiff always bears the onus when the defendant asserts that he or she was intending to exercise a power or discharge a public duty. Moreover, Scrutton LJ was dealing in Scammell with the case of an apparent exercise of power or discharge of duty. His remarks must be read in that context.

10. Similarly, the judgment of Dixon and McTiernan JJ in Hamilton does not support the proposition that, once the defendant claims to have intended to exercise a power or discharge a duty, the onus is on the plaintiff. Immediately, before the passage which I have quoted from their Honours' judgment, the learned judges had said ((53) (1937) 58 CLR, at p.380.):

"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, although it turned out that the plaintiff was not in fact guilty".

When the two passages in Hamilton are read together, it is clear that their Honours were not intending to depart from the general rule that the burden rests on the defendant to prove a claim that he or she intended to put the law in motion and really believed in a state of facts which would have justified the wrongful act. Their Honours' statement in the first passage quoted above about "a defendant (who) is found purporting thus to execute what is actually a statutory power" was directed to the case of a defendant who, to all outward appearances, is exercising or intending to exercise a common law or statutory power but is alleged by the plaintiff to have used it for some ulterior purpose ((54) The use of the word "thus" in their Honours' judgment is curious. Although grammatically it refers back to the passage which precedes it, that cannot have been their Honours' intention. If the defendant honestly intended to put the law in motion and really believed in the relevant state of facts, no question of a pretended exercise of his functions could arise.
The two passages are best understood by ignoring the word "thus".).

11. In reaching their conclusion that summary judgment should be entered for the respondent, the learned judges of the Full Court expressed the view that the facts in Hamilton were "strikingly similar to the present case". In Hamilton, a defence of statutory protection from liability, raised by a special constable of police, succeeded. But, with great respect to their Honours, Hamilton was an entirely different case. In Hamilton, the plaintiff's own evidence established (1) that the defendant had arrested him and two companions for stealing flowers in a public park; and (2) that there was reasonable cause for the defendant to believe that they were guilty of the offence. After the defendant gave evidence that he was a park ranger and tendered his certificate of appointment as a special constable of police, his counsel successfully applied for a nonsuit. The decision of the trial judge to nonsuit the plaintiff was upheld by this Court. Once the defendant proved his authority, there was no longer a case to go to the jury ((55) See De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1942) 42 SR (NSW) 1, at p.4.). Proof of the defendant's authority when coupled with the plaintiff's own evidence showed that the defendant was exercising the power of a special constable when he arrested the plaintiff. Furthermore, as Starke J pointed out ((56) Hamilton (1937) 58 CLR, at p.374.), "not the slightest evidence was adduced" that the defendant did not honestly believe that the plaintiff and his companions were stealing pansies.

12. In Hamilton, the defendant had the authority to arrest a person whom he suspected for reasonable cause of stealing flowers. Objectively, the admitted facts led to the conclusion that, in arresting the plaintiff, the defendant was exercising that power. That is not the situation in the present case. Because the appellants were the tenants of the premises, the respondent had no authority
to arrest them for failing to leave the premises. Hence, the respondent's case has to be that he is protected by the relevant statutes because in "advising" the appellants that he would arrest them if they stayed on the premises, he believed that they had no lawful authority to remain on the premises. That is to say, his defence is that he honestly believed in a state of affairs which, if it was true, would have constituted an offence under s.82B of the Police Act 1892 and entitled him to threaten to arrest the
appellants ((57) See Little (1947) 75 CLR, at p.110.). The appellants have not conceded that the respondent was giving a warning under s.82B. Furthermore, they have not conceded, and the respondent has not incontrovertibly proved, any facts from which objectively it could be inferred that the respondent's threat was based on a potential breach of s.82B. On the contrary, the appellants have denied that s.82B was ever mentioned. No question of apparent authority arises. Consequently, the onus is on the respondent to establish the relevant state of affairs and his honest belief in that state of affairs to the satisfaction of the tribunal of fact. The case is not one for summary judgment.

13. It is true that the appellants admit that the respondent said that Mr Banning had proved to him that he was the owner of the roadhouse and that they had 20 minutes to leave the premises or he would arrest them. But that stops short of proving either that the respondent believed that the appellants had no lawful authority to remain on the premises or that he was intending to act in respect of a breach of s.82B of the Police Act. The affidavits of the respondent make no effort to explain why he believed that the appellants had no lawful authority to remain on the premises, notwithstanding that he had seen their unexpired lease of the premises and "letters from Webster to Banning explaining why he refused to pay any monies owed pursuant to the lease". In his second affidavit, the respondent says that he "was able to ascertain" from correspondence that he was shown that the appellants "had failed to fulfil the conditions pursuant to the Lease". But he refrains from saying whether this did - or how it could - lead him to believe that they had no lawful authority to remain on the premises.

14. The respondent's own account of his knowledge of the matter leaves a serious question to be tried as to whether he honestly believed that the appellants had no lawful authority to remain on the premises. If the appellants' account is accepted, the tribunal of fact could readily conclude that the respondent was not acting or intending to act in the discharge of his duties. On that account, the tribunal of fact could conclude that the respondent had officiously intervened in a civil dispute between a landlord and its tenants and, in furtherance of that intervention, had threatened the appellants with arrest if they did not comply with the landlord's demand that they leave the premises. On either account there is an issue to be tried. The case is not one for summary judgment.

15. Once it is accepted, contrary to the conclusion of the Full Court, that a defendant bears the onus of proving the facts that bring the case within the protection of the enactment giving immunity, the conclusion is inevitable that the appeal must be allowed.