Webster v Lampard

Webster v Lampard - [1993] HCA 57 - HCA 1986 case summary — Zoe

[8]

no action shall be brought against any person for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority. Section 138 of the Police Act incorporates par. H (or s. H [2] ) of the Second Schedule to the Interpretation Act 1918 WA [3] . In its application as incorporated by s. 138 of the Police Act, par. H relevantly provides: No action shall lie against any Officer of Police, Policeman, [or] Constable on account of any act, matter, or thing done in carrying the provisions of [the Police] Act into effect again[st] any parties offending or suspected of offending against the same, unless there is direct proof of corruption or malice. By his defence, Sergeant Lampard identified the grounds on which he claimed that the two statutory defences were applicable to the present case as being: that at all material times he was acting in pursuance of his public duties as an officer in the Western Australian Police Force in carrying into effect the provisions of the Police Act against parties suspected of offending against the same and at all material times [he] was acting in good faith and without corruption or malice. Earlier in the pleading, Sergeant Lampard had, in relation to the defence under s. 138, alleged that "the action is not maintainable as there is no proof of corruption or malice". By their reply, Mr. and Mrs. Webster joined issue with Sergeant Lampard's defence in so far as it did not consist of admissions. The reply also contained joinders of issue on, or specific denials of, the paragraphs of the defence raising the statutory defences and a specific denial that Sergeant Lampard was "entitled to maintain [those] defences" in that "at no material time was [he] acting in the execution of his duty and by reason of that fact the two Statutes concerned are inapplicable". 1. See s. 138 of the Police Act and s. 47(2) of the Interpretation Act 1918. 2. It did so in accordance with s. 47(2) of the Interpretation Act 1918. The Interpretation Act 1984 WA repealed the earlier Interpretation Act but preserved incorporations effected before its commencement: see s. 77(4).

[11]

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] . 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 twenty 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.

[20]

Where a statutory defence is available in respect of acts having some such designated connexion with the actual or intended course of official duty, the general onus of establishing that connexion will, in the absence of some identified contrary legislative intention, rest on the defendant who invokes the defence [16] . 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] . 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] 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.

[32]

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. Ltd. 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 WA 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.

[64]

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.

[76]

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] . 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] . 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 authorized 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 authorized by law. However, it is not necessary for the defendant to prove that the belief was based on reasonable grounds [43] . 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] .

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