Gollan v Nugent

[1988] HCA 59

High Court of Australia|1988-07-01|Before: Gaudron JJ, Brennan J, Cantor J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1988-07-01

Before

Gaudron JJ, Brennan J, Cantor J

Source

Original judgment source is linked above.

Judgment (109 paragraphs)

[1]

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Gollan v Nugent [1988] HCA 59

[2]

ORDER Appeal allowed in part. Order of the Court of Appeal varied by adding thereto an order that the appellant be at liberty to re-plead within twenty-eight days that the articles in question are indecent, obscene, immoral or otherwise of such a nature that relief should be refused. Otherwise appeal dismissed with costs.

[3]

This appeal is brought to canvass a proposition which was raised, or which the Court of Appeal understood to have been raised, by a defendant's plea in an action for trespass to goods, detinue and conversion brought in the Supreme Court of New South Wales. The plaintiffs (the respondents), by their amended statement of claim, allege that the first two defendants, purporting to act under the authority of a search warrant issued by the third defendant, entered upon premises at Glebe and there seized certain goods. The first two defendants are officers of police, one being a member of the Police Force of Victoria, the other (the appellant) being a member of the Police Force of New South Wales. The third defendant is a justice of the peace. The search warrant purported to authorize the seizure of things which were believed to be "on the premises relating to the "Australian Pedophile Support Group" in respect of which an indictable offence had been or was suspected to have been committed, namely, "conspiracy to corrupt public morals (Common law)" ". The goods are described in the statement of claim as "documents, books, posters, taperecordings, photographs, puppets and other things". Paragraph 18 of the statement of claim alleges that "the plaintiffs were at all material times the owners" of the goods seized. The plaintiffs allege that the warrant and the seizure were invalid. They allege that a demand was made for the return of the goods but the goods were not returned, that the two police officers have wrongfully detained the goods and that each of them has converted the goods to his own use. The plaintiffs claim damages for trespass, detention and conversion and, in addition, "delivery up of the said documents, books, posters, taperecordings, photographs, puppets and other things". A more particular list of these goods is annexed by the appellant (to whom I shall refer as the defendant) to an affidavit verifying his defence.

[27]

This provision can be traced back to the Common Law Procedure Act 1854 U.K. (17 & 18 Vict. c. 125, s. 78) which reformed the practice when a verdict for the plaintiff in detinue was returned. The effect of the 1854 Act was stated by Lord Macnaghten in the first appeal in Peruvian Guano Co. v. Dreyfus Bros & Co. [7] . His Lordship pointed out that, under the old practice, a writ of execution gave a defendant the choice to give up the goods or pay their assessed value and that a plaintiff could obtain an order for specific restitution only by going to equity and showing the goods to be of special value. His Lordship said: The Common Law Procedure Act 1854 enabled courts of common law to make an order for the return of the goods, if they saw fit to do so. The effect of that provision, as pointed out by Maule J., in Chilton v. Carrington [8] is not to take away the option in all cases, but it enables "the Court or Judge to make an order for delivery, where it would be unjust to allow the defendant to have the option, and where he can, and in the opinion of the Court or Judge ought to, restore the chattel in specie". If authority be needed to manifest what is clear enough in the words of the statute, Lord Macnaghten's speech is authority for two propositions: first, that an order for specific restitution can be made only if the plaintiff is entitled to a verdict in detinue (and is therefore a person entitled to possession of the goods) and, secondly, that the making of an order for specific restitution is discretionary. True it is that the equitable discretion fell to be exercised by reference to the special value of the goods and the plaintiff's willingness to do equity (as, for example, by making an allowance for money or labour expended on the improvement of the goods). But if the equitable discretion excluded considerations other than matters of value or financial adjustment, the statutory discretion does not - though it must, of course, be judicially exercised. 1. (1946) 74 C.L.R. 204, at pp. 216, 225-227, 242. 2. (1946) 74 C.L.R., at pp. 227, 229. 3. [1955] 1 Q.B. 202, at p. 211. 4. [1963] 1 W.L.R. 644, at p. 649; [1963] 2 All E.R. 314, at p. 317. 5. [1892] A.C. 166, at p. 176. 6. (1855) 15 C.B. 730 [139 E.R. 612].

[30]

The law does not avail itself of such lawless methods as the defendant suggests in order to enforce respect for the law. If it intends moneys to be forfeited which are acquired by acts which are prohibited by statute, it provides that they shall be so forfeited and to whom they shall go. But I know of no principle of law, or decision, or even dictum, which renders money which has become the property of an individual liable to be taken and kept with impunity by any person who chances to get hold of it, merely because it has been acquired by some wrongful or prohibited act. Possession of goods is not illegal in any material sense merely because the manner in which possession was obtained was illegal or because of some illegality in a plaintiff's previous dealing with the goods. This proposition is challenged by the defendant (if I understand the submission correctly) because, it is said, the court may refuse relief whenever the evidence establishes illegality "collateral to the plaintiff's cause of action". That submission must find support, if it can, in the general principle that "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act": Palaniappa Chettiar v. Arunasalam Chettiar [11] ; Ison v. Australian Wheat Board [12] . That principle is, as we shall see, of general application and I shall refer to it as "the general principle". In its application to particular areas of the law, it finds expression in specific rules which are adapted to the subject matter. In contract, one of the expressions of the general principle is the maxim ex turpi causa non oritur actio. I suspect that the plaintiffs' reference to "collateral" illegality assumes that the application of the general principle to the law of trespass, detinue and conversion ("the possessory torts") may be ascertained by reference to the law which has developed around the maxim in the law of contract. 1. [1910] 2 K.B. 1080. 2. [1910] 2 K.B., at pp. 1096-1097. 3. [1962] A.C. 294, at p. 303. 4. (1967) 68 S.R. (N.S.W.) 102, at p. 113.

[32]

No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. However, in reference to this passage, Windeyer J. in Smith v. Jenkins [14] observed: His Lordship was speaking there of an action based upon an illegal contract. His phrase "obligations alleged to arise out of a contract or transaction which is illegal" obviously refers to contracts or other transactions between parties. It does not refer to an action arising simply ex delicto. Collateral illegality affects the legality of a contract and hence a right of recovery founded on the contract; but there is clear authority that a right of recovery founded on possession is not affected by illegality in the manner in which the plaintiff acquired possession. In Bowmakers Ltd. v. Barnet Instruments Ltd. [15] du Parcq L.J., speaking for the Court, said: In our opinion, a man's right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant's possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim. This Court accepted that enunciation of the principle as correct in Thomas Brown and Sons Ltd. v. Fazal Deen [16] . And in Gordon v. Chief Commissioner of Metropolitan Police, after the plaintiff demanded that the police officer return the money which he had seized, the plaintiff was held entitled to recover it in detinue though it had been obtained in illegal betting transactions. Buckley L.J. stated the approach of the majority in this way [17] : The plaintiff here is not enforcing any rights directly resulting to him from his carrying on business as a bookmaker; he is not recovering bets; he is seeking to recover from the defendant, who has seized it, money which was his and none the less his because it became his by virtue of a gambling transaction. Nor does past illegality in dealing with goods in the plaintiff's possession affect his right to recover them from one who has no better title. In Russell v. Wilson [18] , a police officer took possession of money and valuable securities in the course of executing a warrant issued under the gaming laws. The warrant authorized the seizure of such items found in premises used for illegal betting. Although the items were lawfully seized and the plaintiff was convicted of a gaming offence involving the use of the items, the police officer was held liable in detinue when he refused to return the items after a demand, authority for further retention having ceased. 1. [1892] 2 Q.B. 724, at p. 728. 2. (1970) 119 C.L.R. 397, at p. 412. 3. [1945] K.B. 65, at p. 71. 4. (1962) 108 C.L.R. 391, at p. 411. 5. [1910] 2 K.B., at p. 1099. 6. (1923) 33 C.L.R. 538.

[43]

It is strange there should be so much difficulty in making it understood that a thing may be unlawful, in the sense that the law will not aid it, and yet that the law will not immediately punish it. Commenting on this case in Bowman v. Secular Society Ltd. [28] , Lord Sumner said: The distinction is well settled between things which are illegal and punishable and things which, though not punishable, are illegal so as not to support a contract for good consideration. Prostitution is one of the common examples. Bramwell B. evidently thought that Secularism was another. The rule stated by Bramwell B. is of general application. In Reg. v. Home Secretary; Ex parte Puttick [29] it was applied to qualify a statutory right. And, significantly for present purposes, the general principle is evidenced by a dictum in Bowmakers Ltd. v. Barnet Instruments Ltd. [30] , a case of detinue. There the Court of Appeal upheld a plaintiff's claim founded on possession of goods acquired under an illegal contract. Although du Parcq L.J. stated "as a general rule" that a right to possess one's own chattels would be enforced against a person who, without any claim of right, detained or converted them, he added [31] : It must not be supposed that the general rule which we have stated is subject to no exception. Indeed, there is one obvious exception, namely, that class of cases in which the goods claimed are of such a kind that it is unlawful to deal in them at all, as for example, obscene books. A more ancient and unhappy example of the applicability of the general principle to a possessory tort may be found in Buron v. Denman [32] . A plaintiff sued the defendant, a naval commander, in trespass for carrying away slaves in the plaintiff's possession at Gallinas to Sierra Leone where they were freed. The defendant pleaded, inter alia, that the plaintiff was not lawfully possessed of the slaves. Though seventy-six years had passed since Lord Mansfield had discharged the slave in Somerset v. Stewart [33] Parke B., in summing up, directed the jury [34] : It is not necessary to decide whether, if he had been simply in the actual possession of slaves, using them as slaves, he could have recovered against any person who took them away: on that point it is not necessary to give an opinion, because, according to the evidence on both sides, he was living at Gallinas, where it was lawful to possess slaves. There are, of course, many instances where possession of a thing is unlawful in the sense that it breaches the criminal law and such possession cannot found a cause of action. A plaintiff drug pedlar cannot come to the court to seek damages for the taking of his illegally possessed drugs. Much less will the court order specific restitution of the drugs. But possession may be unlawful in the relevant sense for a number of other reasons, and one cannot say that the conduct or intention of the person in possession is always immaterial to the lawfulness of possession. 1. (1867) L.R. 2 Ex. 230, at p. 233. 2. [1917] A.C. 406, at p. 423. 3. (1867) L.R. 2 Ex., at p. 236. 4. [1917] A.C., at p. 463. 5. [1981] Q.B. 767. 6. [1945] 1 K.B. 65. 7. [1945] 1 K.B., at p. 72. 8. (1848) 2 Ex. 167 [154 E.R. 450]. 9. (1772) Lofft 1 [ 98 E.R. 499]. 10. (1848) 2 Ex., at p. 187 [154 E.R., at p. 459].

[44]

There are some situations where possession is unlawful because of the possessor's intention and where force may be used to deprive him temporarily of the thing possessed. A knife may be taken by force from the grasp of an intending murderer, though it is the knife he uses lawfully to carve the family dinner. But he must have it back once the murderous intention passes or is impossible to effect. Force may be used in such a case because there is a common law authority in any person to take reasonable steps to restrain a breach of the peace which he reasonably apprehends is about to be committed in his presence (Albert v. Lavin [35] ), and the person who exercises that authority is not exposed to a civil liability in trespass or detinue because he takes possession of the weapon being used in breaching the peace. There are other instances where an intention to use a thing in the commission of crime may affect the extent of the liability of one who takes or keeps the thing. Thus, if one person who is drunk goes to drive his car and a second person takes the key out of the ignition, the second person incurs no liability in trespass for damages for depriving the driver temporarily of the key. Nor is he liable in detinue for damages for refusing the driver's immediate demand to return the key, but he would be liable in detinue if he did not return the key when the driver had sobered up or directed delivery of the key to a third person. These are cases where the act on which the plaintiff founds his claim for relief is an offence or an intended offence and the general principle precludes the grant of relief in respect of the criminal use or proposed use of the thing possessed. In Garrett v. Arthur Churchill Ltd. [36] , to which Hope J.A. referred, a bailee of a goblet delivered it at the direction of the bailor to a third party for export. An export permit was required, and the bailee was charged with an offence of being knowingly concerned in the exportation of goods with intent to evade a prohibition on their export. He was acquitted by the justices who considered it his legal duty to act in accordance with the owners' instruction "even though he knew that doing so might result in an illegal exportation" [37] . The Divisional Court sent the matter back for further consideration. Lord Parker C.J. held the justices' decision to be incorrect in law for this reason [38] :

[47]

The question to be determined, then, is whether the continued possession of a human corpse unburied is in re ipsa unlawful. If it is, the reason must be that such possession is injurious to the public welfare, and the notion that it is so injurious must be founded upon considerations of religion or public health or public decency. The question whether a particular act is injurious to the public on any such grounds is a mixed question of law and fact, so that what may be injurious at one time or under one set of circumstances may not be so at another time and under different circumstances. To say that possession is unlawful when it is injurious to the public is to say that the public policy of the law prevails over private rights otherwise enforceable by law. That is a basic policy of the law, though the examples of its application are to be found chiefly in the law of contract. In T.A. Street's The Foundations of Legal Liability (1906), vol. 2 (reprinted in Historical Writings in Law and Jurisprudence (1980), vol. 6, p. 162), the learned author stated the underlying policy: It is self-evident that such sanction [the sanction of the law to the parties' engagement] cannot be given where the engagement in question is subversive of the law itself or tends to weaken the foundations of human society. The law will not permit any of its creatures to be used for its own destruction. The machinery for the administration of justice cannot be used to promote an iniquitous or unlawful purpose. For this reason a court, on the ground of public policy, will refuse a remedy to enforce a contract which is neither void nor, except for considerations of public policy, unenforceable: cf. per Mason J. in A. v. Hayden [40] . His Honour noted that "[t]he refusal of the courts to enforce contracts on grounds of public policy is a striking illustration of the subordination of private right to public interest" [41] . In that case, Gibbs C.J. said [42] : Where a contract is not unlawful on its face and is capable of performance without any violation of the law, it will be enforceable unless it is proved that one or both of the parties intended to perform it in an illegal manner or to effect an illegal purpose: Waugh v. Morris [43] ; Hutchinson v. Scott [44] ; Patterson v. Lowe [45] . (And see per Mason J. in Yango Pastoral Co. Pty. Ltd. v. First Chicago Australia Ltd. [46] .) The broad policy basis for the court's refusal to enforce a contract to effect an immoral or illegal purpose was stated by Diplock L.J. in Hardy v. Motor Insurers' Bureau [47] : The rule of law on which the major premise is based - ex turpi causa non oritur actio - is concerned not specifically with the lawfulness of contracts but generally with the enforcement of rights by the courts, whether or not such rights arise under contract. All that the rule means is that the courts will not enforce a right which would otherwise be enforceable if the right arises out of an act committed by the person asserting the right (or by someone who is regarded in law as his successor) which is regarded by the court as sufficiently anti-social to justify the court's refusing to enforce that right. (Emphasis added.) 1. (1908) 6 C.L.R., at p. 413. 2. (1984) 156 C.L.R. 532, at p. 557. 3. (1984) 156 C.L.R., at p. 559. 4. (1984) 156 C.L.R., at p. 544. 5. (1873) L.R. 8 Q.B. 202. 6. (1905) 3 C.L.R. 359. 7. [1955] St. R. Qd 437, at p. 444. 8. (1978) 139 C.L.R. 410, at p. 429. 9. [1964] 2 Q.B. 745, at p. 767.

[49]

If Christianity is of the substance of our law, and if a Court of law must, nevertheless, adjudge possession of its property to a company whose every action seeks to subvert Christianity and bring that law to naught, then by such judgment it stultifies the law. So it was argued, and if the premise is right, I think the conclusion follows. The reasons why the conclusion did not follow are instructive. In Lord Dunedin's view, it could not be said that the court's assistance was sought to carry out the Society's objects. He said [51] : [The company] is seeking [the court's] assistance only to compel the executor to do his duty, so that it may receive what is legally due to it. For after all - and treating the memorandum, in spite of the opinion I have expressed already, as indicating purposes entirely illegal such as in contract would not serve as foundation for an action - there is no reason why the society should not employ the money in paying its office rent. It follows that relief is not refused to a plaintiff who seeks enforcement of a right which he may or may not utilize to effect an immoral or illegal purpose. A right which is otherwise enforceable does not cease to be enforceable because it may be enjoyed illegally in the future. Nor does such a right become entirely unenforceable because it is intended that its future uses will include some uses which are lawful and some which are not. Cowan v. Milbourn [52] is an example. There, the defendant had undertaken to let rooms to the plaintiff, but the defendant subsequently refused to let the plaintiff have them because he apprehended that the plaintiff intended to use them for the delivery of blasphemous lectures. That was regarded as an illegal purpose (a view which was criticized in Bowman v. Secular Society Ltd.). The plaintiff sued for damages. As the report in 16 Law Times 290 shows, the rooms were engaged for two purposes. One purpose was for a tea party and ball, the other for the delivery of lectures on a different occasion. The jury assessed nominal damages for the loss of the use for the former purpose, but no relief could be granted for loss of use for the latter purpose. The Court of Exchequer held that, as the plaintiff was going to use the rooms for an unlawful purpose, he could not enforce the contract for that purpose. In Bowman v. Secular Society Ltd. Lord Sumner said that Cowan v. Milbourn was wrongly decided. He thought that it was wrong to hold that the lectures "could not but be unlawful" but, if the lectures were necessarily of that kind, his Lordship agreed that the hiring would have been "for an unlawful purpose and void" [53] . 1. [1962] A.C. 294. 2. [1917] A.C. 406. 3. [1917] A.C., at p. 454. 4. [1917] A.C., at pp. 435-436. 5. (1867) L.R. 2 Ex. 230; 16 L.T. 290. 6. [1917] A.C., at p. 463.

[54]

The sufficiency of the proposed plea may now be examined, bearing in mind that the statement of claim is to be taken to allege that the plaintiffs' possession was lawful when the goods were taken and, if the goods had been returned at any time, their possession would have been lawful and, if the goods are returned, their possession will be lawful. In general the proposed plea alleges that the plaintiffs' possession was, is or will be such that no action lies or no damages would be awarded in respect of a use or intended use of the goods. A reasonable defence appears. Unlawfulness in the relevant sense is pleaded in grounds (ii), (iii) and (iv) of sub-par. (a) except in the words "acquired and/or" in ground (iv) - a plea which erroneously characterizes possession according to the unlawfulness of the manner in which it was obtained. Ground (v) may be supported so far as it alleges that the goods are obscene: in the first place, the defendant is entitled to plead that clause in reliance on the observation of du Parcq L.J. in Bowmakers Ltd. v. Barnet Instruments Ltd. [56] as to obscene books; secondly, there are some objects of such a degree of obscenity that their possession might properly be described as "injurious to the public welfare" and it may be that some of the goods seized are of that character, and thirdly, because the obscene character of the goods is material to the exercise of a discretion to order specific restitution. Ground (vi) is pleaded in general terms and its want of particularity precludes any decision as to the sufficiency of the facts relied on to establish that the plaintiffs' possession of the goods was or would be unlawful. Although the allegation in ground (vi) that the plaintiffs' possession was "against public policy" can bear no different meaning from the phrase "injurious to the public welfare" used by Griffith C.J. in Doodeward v. Spence [57] , it is impossible now to determine whether the facts on which the defendant would seek to rely are capable of supporting this part of the plea. The better course is to let it stand with liberty to the plaintiffs to apply to strike it out if particulars fail to show that possession was or would be injurious to the public welfare.

[92]

A person who supplies the instrument for a crime or anything essential to its commission aids in the commission of it; and if he does so knowingly and with intent to aid, he abets it as well and is therefore guilty of aiding and abetting. I use the word "supplies" to comprehend giving, lending, selling or any other transfer of the right of property. In a sense a man who gives up to a criminal a weapon which the latter has a right to demand from him aids in the commission of the crime as much as if he sold or lent the article. But this has never been held to be aiding in law: see R. v. Lomas [61] and Reg. v. Bullock [62] . The reason, I think, is that in the former case there is in law a positive act and in the latter only a negative one. In the transfer of property there must be either a physical delivery or a positive act of assent to a taking. But a man who hands over to another his own property on demand, although he may physically be performing a positive act, in law is only refraining from detinue. Thus in law the former act is one of assistance voluntarily given and the latter is only a failure to prevent the commission of the crime by means of a forcible detention, which would not even be justified except in the case of felony. Another way of putting the point is to say that aiding and abetting is a crime that requires proof of mens rea, that is to say, of intention to aid as well as of knowledge of the circumstances, and that proof of the intent involves proof of a positive act of assistance voluntarily done. The words "which would not even be justified except in the case of felony" in the above passage clearly contain a misprint. The meaning intended was plainly enough "which would not even be justified in the case of felony". As Hope J.A. pointed out in the court below, Devlin J. referred in that passage to R. v. Lomas which concerned a felony, namely, burglary. 1. [1959] 1 Q.B. 11, at p. 20. 2. (1913) 9 Cr. App. R. 220. 3. [1955] 1 W.L.R. 1; [1955] 1 All E.R. 15.