G and R Wills and Co Ltd v Adelaide Corporation

G and R Wills and Co Ltd (the plaintiff) brought an action against the Corporation of the City of Adelaide (the defendant) in the Supreme Court of South Australia. The plaintiff sought damages for trespass to land and nuisance, alleging that the defendant had unlawfully entered its land and erected a structure that interfered with its use and enjoyment of that land. The dispute concerned the construction of a pedestrian subway beneath a public street adjacent to the plaintiff's property.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the defendant had acquired the necessary statutory authority to construct the subway, and if so, whether the construction and existence of the subway constituted a trespass or nuisance to the plaintiff's land. Specifically, the court had to determine the scope of the defendant's powers under the relevant legislation concerning public works and the extent to which those powers could override private property rights.

The court reasoned that the defendant possessed statutory power to construct public works, including subways, for the benefit of the public. However, this power was not unfettered and was subject to the common law rights of landowners. The court found that while the defendant had the authority to construct the subway, the manner of its construction and its physical intrusion into the plaintiff's land constituted a trespass. The court applied the principle that statutory authority to carry out works does not grant immunity from liability for trespass or nuisance unless the statute expressly or by necessary implication authorises such interference. The court also considered the nature of the interference and whether it was reasonably necessary for the execution of the authorised works.

The court ordered that the plaintiff was entitled to damages for trespass and nuisance, with the quantum of damages to be assessed.