Lindsay Arthur Maynes & Anor v Samuel Ian Casey

[2011] HCASL 173

LINDSAY ARTHUR MAYNES & ANOR
v
SAMUEL IAN CASEY & ANOR
[2011] HCASL 173
S247/2011

1. The applicants resided in the area of a particular Council which issued to them Local Court summonses for the recovery of unpaid rates.  The second respondent was a solicitor acting on the instructions of the Council.  The first respondent was a process server who was the son of the second respondent.  The first respondent arrived at the applicants' property one Sunday evening.  The applicants claimed that he had driven past a sign warning against trespassers, and that he had behaved in an aggressive way causing the applicants to fear for their safety.  The applicants claimed that the respondents had breached their privacy by returning on a number of occasions to their property or to a public road which ran through their property.  The applicants claimed that any implied consent for the respondents to enter their property had been revoked prior to their entry.  This revocation was said to have been effected by signs at the boundaries of the property, correspondence to the local newspaper two years before the alleged trespass, and correspondence to the Council.

2. The applicants commenced District Court proceedings alleging trespass, assault and breach of privacy.  Sidis DCJ rejected their claims on factual grounds.

3. The applicants filed a Notice of Appeal to the Court of Appeal of the Supreme Court of New South Wales.  That Notice of Appeal was dismissed as incompetent on the ground that the relevant monetary threshold was not established.  Allsop P and Basten JA refused leave to appeal on the ground that there was no reasonable prospect of challenging the factual findings that the first and second respondents were not aware of the correspondence to the newspaper or to the Council.  Nor was it possible to overturn the factual finding that the sign was ineffective and that the first respondent had not seen it.  The Court also pointed to the difficulty in overturning other factual findings of the trial judge and to the likelihood that the quantum of damages would be small even if the findings were overturned.

4. The papers filed in support of the applicants' application for special leave to appeal to this Court do not demonstrate any respect in which the Court of Appeal's reasoning is likely to be held erroneous if special leave were granted.  Nor is any point of law identified which would enjoy any prospect of success in this Court. 

5. The application is dismissed.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell