Gollan v Nugent [1988] HCA 59

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

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.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 17 Brennan J.

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.