Defendants invoking statutory protection provisions must establish the designated connection with official duty before the burden shifts to the plaintiff to prove improper motive; summary judgment on such defences will rarely be appropriate where facts are disputed.
Later decisions that cite Webster v Lampard
Decisions cited by Webster v Lampard
WEBSTER AND ANOTHER v. LAMPARD [1993] HCA 57; (1993) 177 CLR 598
F.C. 93/042
Number of pages - 21
Police (WA)
HIGH COURT OF AUSTRALIA
MASON CJ(1), DEANE(1), DAWSON(1), TOOHEY(2) AND McHUGH(3) JJ
CATCHWORDS
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.
HEARING
1993, April 29; October 14. 14:10:1993ORDER
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.
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;In his statement of defence, Sergeant Lampard did not object to the
(b) wrongfully requiring the Plaintiffs to give up
possession of the premises;
(c) wrongfully trespassing on the premises occupied by the
Plaintiffs".
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 anySection 138 of the Police Act incorporates par.H (or s.H ((2) See
act done in pursuance or execution or intended execution of
any Act, or of any public duty or authority".
"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] HCA 69; (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] HCA 1; (1949) 78 CLR 62, at
p.91.):
"A case must be very clear indeed to justify the summaryNowhere is that need for exceptional caution more important than in
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."
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] HCA 69; (1937) 58 CLR 369, at p.377; Little v.
The Commonwealth [1947] HCA 24; (1947) 75 CLR 94, at p.108; Trobridge v. Hardy
[1955] HCA 68; (1955) 94 CLR 147, at pp.156-158; Marshall v. Watson [1972] HCA 27; (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] EngR 704; (1792) 4 TR 553, per Lord Kenyon
CJ at p.555 [1792] EngR 704; (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 [1839] EngR 809; (113 ER 221, at p.224); Hughes v. Buckland (1846) 15 M. and
W. 346, per Parke B. at pp.355-356 [1846] EngR 582; (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 21stWhatever use may legitimately be made of such general assertions
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."
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 anyof
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
s.82B when threatening Mr Webster with arrest. Mr Webster assertsreference
that he is "positive" that Sergeant Lampard "at no time made
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:The appellants claimed against the respondent "Damages and penalty
(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."
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,The respondent pleaded that:
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."
"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 affordednot
only when an act is done in pursuance or execution of any Act,the
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,
onus lay on the appellants to show that the respondent lacked aspite,
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
or corruption, or a desire to injure or assist some person oror
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
ulterior motive.that
4. There being some factual basis for the respondent's belief
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] HCA 68; (1955) 94 CLR 147, at
p.161.):
" The phrase 'done in carrying the Police Act intoIn Trobridge v. Hardy the focus was on the honest intention of the
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".
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] HCA 69; (1937) 58 CLR 369, at
p.380.):
"If the defendant honestly intended to put the law in motiona
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] EngR 720; (1862) 13
CB(N.S.) 392, at pp.402, 404 [1862] EngR 720; (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
statutory power, the burden rests upon the plaintiff of provingthat
that he was not actuated by an honest desire to do his duty:
he was not acting in the intended, but in the pretended,v.
execution of his functions (Cf. G. Scammell and Nephew Ltd.
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] HCA 69; (1964) 112 CLR 125, at p.130; Church of
Scientology v. Woodward [1982] HCA 78; (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] HCA 24; (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
[1839] EngR 809; (113 ER 221); Cox v. Reid [1849] EngR 519; (1849) 13 QB 558 (116 ER 1376); Booth
v. Clive [1851] EngR 354; (1851) 10 CB 827 (138 ER 327); Hermann v. Seneschal [1862] EngR 720; (1862)
13 CB (NS) 392 (143 ER 156); Roberts v. Orchard (1863) 2 H. and
C. 769 [1863] EngR 1030; (159 ER 318); Selmes v. Judge (1871) LR 6 QB 724;
Hazelton v. Potter [1907] HCA 63; (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] HCA 69; (1937) 58 CLR 369, at pp.374, 380; Little (1947) 75 CLR, at
pp.108-113; Trobridge v. Hardy [1955] HCA 68; (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] HCA 68; (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 motionWhen the two passages in Hamilton are read together, it is clear that
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".
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.