Trespass and your rights

Know your rights….

If you are faced with an invasion of your property by anyone, the police, local council workers, process servers without proper legal authority issued by a court, then they are trespassing. Know your rights. The following is the case law that guarantees your right to live on your property without unlawful invasion. Not even the police have the right to enter your home without your consent unless they have a properly constituted court warrant. If in doubt, call a lawyer….

NoTrespassing
Keep trespassers away. Put a no trespassing sign on your front gate or front door

In the High Court of Australia PLENTY v DILLON [1991] 171 CLR 635 F.C. 91/004

Judge 1 (Justices Mason, Brennan and Toohey) at [4] and [5] said

4. The starting point is the judgment of Lord Camden L.C.J.in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066:

‘By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage benothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him.’

And see Great Central Railway Co. v. Bates (1921) 3 KB 578, at p 582;Morris v. Beardmore (1981) AC 446, at p 464. The principle applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons.

As Lord Denning M.R. said in Southam v. Smout (1964) 1 QB 308, at p 320, adopting a quotation from the Earl of Chatham:’ “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail – its roof may shake – the wind may blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.” So be it – unless he has justification by law.’

And in Halliday v. Nevill (1984) 155 CLR 1, Brennan J. said (at p 10):

‘The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.’ ”

“5. The proposition that any person who ‘set(s) his foot upon my ground without my licence … is liable to an action’ in trespass is qualified by exceptions both at common law and by statute……….”

Judge 2 (Justices Gaudron and McHugh) at [1] and [4] said

“1. The question in this appeal is whether a police officer has the right under the law of South Australia to enter private property for the purpose of serving a summons after the occupier of the property has notified the officer that he or she has no permission to enter the land.”

“4. …..Consent to an entry is implied if the person enters for a lawful purpose.

In Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J. said (at p 951):

‘the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.

‘This implied licence extends to the driveway of a dwelling-house:Halliday. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser……….”

NoTrespassing
Withdrawal of permission is stated when you put a No Trespassing sign at the front of your property

5. The proposition that any person who ‘set(s) his foot upon my ground without my licence … is liable to an action’ in trespass is qualified by exceptions both at common law and by statute……….

Judge 2 (Justices Gaudron and McHugh) at [1] and [4] said

1. The question in this appeal is whether a police officer has the right under the law of South Australia to enter private property for the purpose of serving a summons after the occupier of the property has notified the officer that he or she has no permission to enter the land.

4. …..Consent to an entry is implied if the person enters for a lawful purpose

.In Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J. said (at p 951):

‘the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house. ‘This implied licence extends to the driveway of a dwelling-house: Halliday. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser……….”

In the High Court of AustraliaKURU v STATE OF NEW SOUTH WALES [2008] HCA26 (12 June 2008) Justices Gleeson, Gummow, Kirby and Hayne brought forward to 2008 what was said in 1991 in Plenty v Dillon by saying at [43]

“As was pointed out in this Court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land.” (emphasis by this website)…and Justices Gleeson, Gummow, Kirby and Hayne brought forward to 2008 what was said in 1984 in Halliday v Nevill by saying at [45]

“In Halliday v Nevill, this Court held that if the path or driveway leading to the entrance of a suburban dwelling-house is left unobstructed, with any entrance gate unlocked, and without indication by notice or otherwise that entry by visitors or some class of visitors is forbidden, the law will imply a licence in favour of any member of the public to go on that path or driveway for any legitimate purpose that in itself involves no interference with the occupier’s possession or injury to the person or property of the occupier, or the occupier’s guests.

But as Brennan J pointed out in his dissenting opinion in Halliday, there are cases in which it is necessary to recognise that when it is police officers who seek to enter the land of another here is ‘a contest between public authority and the security of private dwellings’.”

In the High Court of AustraliaHALLIDAY v NEVILL [1984] HCA80; (1984) 155CLR1 (6 December 1984) Justice Brennan said at [18] “…..A police officer, in common with any other person on legitimate business, has an implied licence from the occupier of a dwelling-house ‘to come through the gate, up the steps, and knock on the door of the house’ (per Lord Parker C.J. in Robson v. Hallett, at p 951).

That, as Lord Widgery C.J. explained in Brunner v. Williams (1975) 73 LGR 266, at p 272, ‘means that anyone who has any genuine reason for wishing to enter the house or the garden has implied licence from the occupier to approach the front or nearest door and ask whether he may be given permission for what he wishes to do’. Now a licence in the terms thus discussed is fairly to be implied in the generality of cases as an incident of living in society.

Unless a notice says “Keep Out” it is, generally speaking, reasonable to imply a licence to come up and ask ‘May I come in?’ ”

New South Wales v Ibbett [2006] HCA 57 (12 December 2006)HIGH COURT OF AUSTRALIAGLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJSTATE OF NEW SOUTH WALES APPELLANTANDDOROTHY ISABEL IBBETT RESPONDENTNew South Wales v Ibbett [2006] HCA 5710 12 December 2006S227/2006ORDERAppeal dismissed with costs.

On appeal from the Supreme Court of New South Wales[Extracts] Exemplary damages

20 38. The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government[19].

Indeed, the first reported use of the expression “exemplary damages” may have been by Pratt LCJ[20] in Huckle v Money[21]. Huckle was one of several tort actions in the Court of Common Pleas[22] arising from the use by the administration of George Grenville[23] of general warrants in its campaign in the 1760s against the 30 activities of John Wilkes and the publication styled the North Briton. The jury in Huckle awarded no less than £300 damages, an enormous sum for the times, and the Lord Chief Justice said they were not excessive.

39. Windeyer J later doubted whether the origin of the idea conveyed by the term “exemplary damages” was as recent as Huckle[24]. However that may be, what is well established is that an award of exemplary damages may serve “a valuable purpose in restraining the arbitrary and outrageous use of executive power” and “oppressive, arbitrary or unconstitutional action by the servants of the government”.

The words are those of Lord Devlin, no supporter of the general use 40 of this remedy[25]. His Lordship added that[26]:

“the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service”.

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