JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT	:	THE FULL COURT (WA)

CITATION	:	MEEKS -v- KIRKHAM [2000] WASCA 94

CORAM	:	KENNEDY J
IPP J
WALLWORK J

HEARD	:	13 MARCH 2000

DELIVERED	:	13 MARCH 2000

PUBLISHED	:	12 APRIL 2000

FILE NO/S	:	FUL 113 of 1999

BETWEEN	:	OWEN JAMES MEEKS
Appellant (Plaintiff)
 
AND
 
STUART NEVILLE KIRKHAM
Respondent (Defendant)

Catchwords:
Tort - Assault - Authority to remove plaintiff from premises - Application of s 254 of the Criminal Code - Whether defendant authorised by occupier of premises - Evidence of defendant as to terms of authority given by occupier wrongly disallowed - Without that evidence, authority not adequately established
Legislation:
Criminal Code, s 254
Result:
Appeal allowed
New trial ordered

Representation:
Counsel:
Appellant (Plaintiff)	:	Mr P R Eaton
Respondent (Defendant)	:	No appearance
Solicitors:
Appellant (Plaintiff)	:	Bowen Buchbinder Vilensky
Respondent (Defendant)	:	No appearance

Case(s) referred to in judgment(s):

Subramaniam v Public Prosecutor (1956) 1 WLR 965
West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535

Case(s) also cited:

Nil

1	KENNEDY J:  At the conclusion of argument in this matter, the appeal was allowed, the orders of the learned Commissioner set aside and a new trial ordered.  These are my reasons for joining in the making of those orders.
2		The appellant instituted proceedings in the District Court of Western Australia seeking damages for assault.  An order was subsequently made for the action to be listed for trial on the issue of liability only.  On 16 July 1999, judgment was given in favour of the appellant on this issue, with damages to be assessed on the basis that the assault was constituted by the respondent's pushing the appellant into the appellant's car, causing the appellant to sustain a laceration to his right lateral eyebrow.  The appellant appealed against this decision, claiming that there had been another assault immediately prior to the assault which was found by the learned Commissioner to have been committed, the Commissioner having, it was claimed, erroneously found the earlier assault to have been lawful.
3		The appellant had been in a relationship with Ms C M Willett for a number of years.  That relationship had come to an end some six to seven weeks before the events the subject of these proceedings.  On the day in question, Justin, Ms Willett's eight year old son, had spent the day out with the appellant and his two daughters.  The appellant wished to speak to Ms Willett when he drove Justin back to Ms Willett's home.  He maintained that, before returning Justin, he had telephoned Ms Willett to apologise for his being late and that Ms Willett had then agreed to his request that she should come outside and speak to him when he arrived at her home.  His evidence was that, on his arrival, he parked his car on the roadway end of the driveway leading into the premises.  Justin left the car and went inside the house.  The appellant said that he waited in his car, with the engine running, for Ms Willett to come outside and talk with him.  He claimed that he waited for probably five or ten minutes with the engine running as a sign that he was not there to stay.  It appears that Justin returned to the car on at least two occasions.  On one of those occasions, the appellant said Justin passed on a message from his mother that she did not want to talk to him and asked him to leave.  On another occasion, however, the appellant said that Justin had told him that his mother would be coming out in about 30 seconds.  While the appellant was sitting in his car, the respondent came out of the house, told him that Ms Willett did not want to see him, that he was upsetting the children and asked him to leave.  After both Justin and the respondent had gone back inside the house, the appellant, leaving his car engine still running, went to the front door and knocked on it.  The respondent emerged and, according to the appellant, grabbed him by his shirt with both hands and pushed him backwards and forwards a number of times before finally, he said, using an amount of force which caused, in his words, a large crack at his neck when his head flew back.  He claimed that he was then numb from the neck down.  The learned Commissioner found, however, that the appellant had not been assaulted as he had alleged, although he accepted the respondent's admission that he had pushed the appellant in the chest, punched him in the back and in the stomach, and then placed him in a bearhug and walked him from the verandah of the house to his car, where he had pushed the appellant in the back towards the driver's door.
4		The learned Commissioner found that the appellant had no permission from Ms Willett to enter the house and that he was well aware that he had no such permission.  He also found that Ms Willett had not wanted to talk to him and that he had been asked to leave the property on a number of occasions.  He accepted the respondent's evidence that the appellant had tried to enter the house through the front door.  He described the appellant as being unimpressive and unreliable in relation to various parts of his evidence.
5		The learned Commissioner found that the respondent's action in pushing the appellant in the chest and punching him in the back and in the stomach was reasonable in the circumstances.  There was no cause, he indicated, to think that anything other than short term soreness resulted from the punches.  He was also satisfied that it was reasonable for the respondent to have placed the appellant in a bearhug and to have walked him to his car.  He found, however, that when the respondent arrived at the appellant's car, he had crossed the bounds of reasonableness in causing the laceration above the appellant's right eye by pushing him against the car.
6		The learned Commissioner found that when the respondent requested the appellant to leave Ms Willett's premises, he did so "with the agreement of Ms Willett", who did not give evidence.  That finding is limited in its terms to the respondent's request to the appellant to leave the premises.  It does not relate to the respondent's use of force.
7		In his defence, the respondent had apparently relied upon the provisions of s 254 of the Criminal Code, which provides as follows:
"254(1)	For the purposes of this section and section 255, the term "place" means any land, building, structure, tent or conveyance, or a part of any land, building, structure, tent, or conveyance.
	(2)	It is lawful for a person ("the occupant") who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -
(a)	to prevent a person from wrongfully entering the place;
(b)	to remove a person who wrongfully remains on or in the place; or
(c)	to remove a person behaving in a disorderly manner on or in the place;
	provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
	(3)	The authorization conferred by subsection (2), as limited by the proviso to that subsection, extends to a person acting by the occupant's authority except that if that person's duties as an employee consist of or include any of the matters referred to in subsection (2)(a), (b) or (c), that person is not authorized to use force that is intended, or is likely, to cause bodily harm."
8		By s 5 of the Criminal Code Act 1913, it is provided:
"When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.
Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act has not been passed; nor shall the omission from the Code of any penal provision in respect of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof."
9		The appellant submitted that the tort of assault has been codified and replaced by the Criminal Code.  That submission is far too broad, and it is in conflict with the clear terms of s 5 of the Criminal Code - as to which see generally West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535.  It is, however, apparent that the respondent could have a good defence to the assault if he could bring himself within the terms of s 254 of the Code by proving, on the balance of probabilities, that he was acting on the authority of Ms Willett and that the force used by him was reasonably necessary.  This was a defence which was in effect put forward by the respondent; but it appears that he was prevented from giving evidence as to his authority from Ms Willett.  Unfortunately, he was not represented by counsel at the hearing.
10		The respondent, in his evidence-in-chief, was about to give evidence as to what Ms Willett was worried about.  There was an objection from counsel for the appellant and the learned Commissioner intervened, saying to the respondent:
"Just hear me out.  I don't know if you recall when Mr Meeks was in the witness box.  There was a point where he telephoned Cathy [Ms Willett] and there was some discussion over the phone and he was going to say that Cathy had said something.  Well, that's hearsay evidence as to what someone else has said.  I don't want you to tell me about what Cathy is telling you or that Cathy has got some concern.  I will need to hear from Cathy in relation to the truth of that.  So if you can just bear that in mind."
The respondent then went on to describe Justin's having been told to go out to the appellant's car.  Counsel for the appellant complained that the respondent was using "we" in respect of what Ms Willett and himself were saying.  He added that the evidence ought not to be hearsay - which it was not.  The respondent's evidence proceeded:
"I went out to Mr Meeks' car.  I then asked him to - that Cathy didn't want to speak to him.  At this point Cathy decided to --- ."
This drew another objection and the respondent made no further attempt to give evidence in relation to this issue.
11		The hearsay rule does not prevent a witness from giving evidence of what was said to him by another person unless the object is to establish the truth of what is contained in the statement - see Subramaniam v Public Prosecutor (1956) 1 WLR 965, at 969; "Cross on Evidence", 5th Aust edn, par 31010.  The rule is subject to many exceptions which have been established over the years.  In the present case, it was permissible for the respondent to give evidence to the effect that he had been told by Ms Willett to remove the appellant from the premises.  The terms of the 
authority do not infringe the hearsay rule, as there is no fact the truth of which is being asserted.  It is simply a matter of what he was told to do.  The effect of the interventions by counsel and the Commissioner was, in my opinion, to deprive the respondent of the opportunity of proving that he had authority to remove the appellant from the premises.  The evidence, as it stands, falls short of establishing that the respondent was authorised by Ms Willett to remove the appellant by force.  However, having regard to the fact that the respondent was wrongly prevented from giving evidence on this aspect of the matter, it was not appropriate for this Court simply to substitute a finding to this effect based upon the evidence which was permitted to be given.  In the event, it was considered that a new trial of the issue of liability was necessary, and the order was made accordingly.
12		The appellant, in its grounds of appeal, also claims that the learned Commissioner erred in fact in making four specific findings.  Three of these findings were only material insofar as they related to the issue of authority.  The fourth, which was said to be a finding that the most severe of all the appellant's injuries was his neck injury which occurred at the front door when he heard his neck crack, was not a finding as such made by the learned Commissioner.  It was merely a recording of the appellant's evidence, which was clearly evidence which the Commissioner rejected.  Having regard to the fact that there is to be a retrial, it is unnecessary to deal with the challenges to what are said to be the Commissioner's findings.  It is also unnecessary, and clearly undesirable, to comment upon the Commissioner's finding that the appellant was unimpressive and unreliable.
13		It may well be appropriate at this stage for the parties to reconsider the splitting of the issues of liability and damage.  In the end, it may be wiser to deal with these issues at the same time on the retrial.
14	IPP J:  I agree with the reasons of Kennedy J and have nothing further to add.
15	WALLWORK J:  I agree with the reasons for judgment of Kennedy J.  There is nothing I wish to add.