Bennett v Boyd

[2009] TASSC 104

[2009] TASSC 104

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Bennett v Boyd [2009] TASSC 104

PARTIES:  BENNETT, Linda Jean
  v
  BOYD, Margaret Mary

FILE NO/S:  869/2009
JUDGMENT
DELIVERED ON:  24 November 2009
DELIVERED AT:  Burnie
HEARING DATE:  24 November 2009
JUDGMENT OF:  Evans J

CATCHWORDS:

Torts – Trespass – Trespass to land and rights of real property – What constitutes trespass and defences thereto – Defences – Justification – Leave and licence.

Halliday v Nevill (1984) 155 CLR 1, Plenty v Dillon (1991) 171 CLR 635, Kuru v New South Wales (2008) 246 ALR 260, referred to.
Magistrates Court (Civil Division) Act1992 (Tas), ss16(3), 16(6), 18(1).
Aust Dig Torts [192]

REPRESENTATION:

Counsel:
           Applicant:  K Brown
           Respondent:  C F McKenzie
Solicitors:
           Applicant:  Director of Public Prosecutions
           Respondent:  McLean McKenzie & Topfer

Judgment Number:  [2009] TASSC 104
Number of paragraphs:  12

Serial No 104/2009
File No 869/2009

LINDA JEAN BENNETT v MARGARET MARY BOYD

REASONS FOR JUDGMENT  EVANS J
(DELIVERED ORALLY)  24 November 2009

1. The applicant was the complainant in a complaint heard in the Court of Petty Sessions which alleged trespass against the respondent, the defendant to the complaint.  I will refer to the parties respectively as the complainant and the defendant.

1. When the complaint was called on for hearing in the Court of Petty Sessions, the prosecutor informed the learned magistrate that the complainant would not call evidence and the complaint was dismissed.  The defendant then successfully applied for an order that the complainant pay her costs.  The complainant seeks a review of that order on the ground that the learned magistrate, in considering the application, erred in law by misdirecting himself as to the law of trespass. 

1. The background to the matter is that there had been a dispute between the defendant and people referred to in the Court of Petty Sessions as Mr and Mrs Turnbull in relation to a horse and other issues.  As a result of that dispute the defendant issued proceedings in the Magistrates Court (Civil Division) by filing a claim against the Turnbulls seeking damages.  Personal service is one of the means provided for serving proceedings in that court. Whilst the Magistrates Court (Civil Division) Act, 1992, s16(3), provides that a bailiff must serve and execute all process issued out of that court, that provision is subject to s16(6), which authorises the service of process in any proceeding by a party to the proceedings.

1. Prior to 24 December 2008, the defendant had apparently made a number of unsuccessful attempts to serve her claim on the Turnbulls. The driveway to their residence was 150 metres long.  The gate was locked and the property was surrounded by a barbed wire fence.  The learned magistrate was told that on the night of 24 December 2008, when the defendant was outside the Turnbulls' residence, she "contacted them … by telephone asking them to come out to accept service of these papers and she was told they would not be leaving the house and that she was not welcome on their property."  The defendant then communicated with the police radio room and was advised that she had a common law right to enter the Turnbulls' property to serve the claim.  On that basis, she circumvented the locked gate to the residence by climbing through the barbed wire fence, walked to the residence, knocked on the door, said to the person who came to the door, "Your paperwork is here", and that person responded, "You're not welcome on the property, we have told you to leave, leave."  Having left the papers that she wished to serve on the doorstep, the defendant left.  Throughout the whole episode the defendant kept a telephone line open to the police radio section.

1. In response to the defendant's application for costs, the prosecutor explained to the magistrate that although the defendant was guilty of trespass, a decision had been made not to prosecute her because she had been acting under an honest and reasonable mistake of law as to her right to enter the property.  The prosecutor said that although the defendant's mistake of law was not a defence, in the circumstances it was thought that it would be unreasonable to pursue the prosecution.

1. In response to the magistrate's query, "And you say that a person does not have the right to actually enter on property and serve legal process?", the prosecutor explained that any implied common law right the defendant might have had to enter the property had been removed as the defendant had been told in no uncertain terms not to enter.  In the exchange that followed, the learned magistrate made it clear that he did not accept that the law was as the prosecutor explained it to be.  Two of the learned magistrate's queries are illustrative.  He said:

"So if a policeman has a summons to serve on me and I say, 'Get off my property, you're not allowed to come on here', he can't serve me and therefore I can never get charged with an offence?";

and

"What I'm asking you is where a person is serving legal process are you saying that they have no right to attend to serve legal process?"

1. In response to the prosecutor's outline of the facts, the defendant in substance said as to her telephone conversation with the Turnbulls that the only thing that was said to her before the telephone was hung up was that Anita Turnbull would not speak to her.  The defendant did not challenge the evidence that the gate to the residence was locked and that she entered the property by climbing through a barbed wire fence.  The learned magistrate did not resolve the conflict in the evidence about what was said in the telephone conversation.  In the circumstances of this case I do not consider this failure to be of any consequence, as it is clear that following the telephone conversation, the defendant telephoned the police radio room to check on whether she was entitled to enter the property, so she was apparently well aware that as the Turnbulls did not consent to her entering the property, she needed legal authority to do so.

1. In explaining his reasons for ordering costs against the complainant, the learned magistrate proceeded on the basis that the defendant had been "told earlier not to attend on the property", and in substance said this was of no consequence as the defendant "did in my view have a right to attempt to effect service of her summons … I am quite clearly of the view that the defendant had the right to attend the property for the purpose of effecting a service."

1. In so concluding, the learned magistrate was in error.  As explained in Halliday v Nevill (1984) 155 CLR 1, at 10, the common law principles relevant to trespass on land are of ancient origin, but of enduring importance. An entrant upon the land of another must justify that entry by showing either that the entry was with the consent of the occupier, or that he or she had lawful authority to enter, Kuru v New South Wales (2008) 246 ALR 260, Gleeson CJ, Gummow, Kirby and Hayne JJ, par43, and the cases there cited. If the path or driveway leading to the entrance of a dwelling house is left unobstructed, with the entrance gate unlocked, and there is no notice or other indication that entry by visitors generally, or particularly designated visitors, is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to enter for any legitimate purpose, Halliday v Nevill, (supra) Gibbs CJ, Mason, Wilson and Deane JJ, at 8. On the evidence in this case there was no basis whatsoever for implying that the Turnbulls consented to the defendant entering their land.

1. Did the fact that the defendant was serving court proceedings, the claim issued out of the Magistrates Court, provide the defendant with lawful authority to enter the property, notwithstanding that the Turnbulls did not consent to her entry?  A contention to this effect was dealt with in Plenty v Dillon (1991) 171 CLR 635. The five members of the High Court who heard that case held that at common law a police officer charged with the duty of serving a summons is not authorised without the consent of the occupier or without any implied leave or licence to enter upon land in order to serve the summons. Whilst there is common law authority that land may be entered in order to execute court process that is coercive in nature, that authority does not extend to the service of a summons or the like which simply commences proceedings. That common law authority is given statutory force by the Magistrates Court (Civil Division) Act, s18(1), where the bailiff executes any warrant of the court. At 644 – 645 and 653 in Plenty v Dillon, the members of the court rejected the proposition that the statutory power to serve the summons in question, either personally or non-personally, carried with it the right to make such entry on land as was necessary to effect service.  At 645, Mason CJ, Brennan and Toohey JJ said that the provision in question was merely facultative, giving the process server an option as to the manner of service, and it conferred no relevant authority to enter land.  The statutory provision did nothing to create an implication that a process server who relied upon either of the options of service, acquired authority to enter upon private land without the leave or licence of the occupier.  At 653, Gaudron and McHugh JJ rejected the same proposition and in doing so referred to a presumption that, in the absence of express provision to the contrary, parliament does not intend to authorise tortious conduct. 

1. Returning to the present case, no provision in the Act or Rules governing the Magistrates Court (Civil Division) authorised the defendant to enter the property occupied by the Turnbulls in order to serve them with the claim. 

1. The learned magistrate erred in concluding that the defendant had the right to enter the property occupied by the Turnbulls.  That error was fundamental to the learned magistrate's decision to order that the complainant pay the defendant's costs.  That order is quashed.