Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde

[2021] NSWDC 230

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mark Eldridge v Agent 47 Pty Ltd trading as Harcourts West Ryde [2021] NSWDC 230

Hearing dates:

12 and 13 May 2021

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Civil

Before:

Hatzistergos DCJ

Decision:

(1) Verdict for the Defendant;

(2) Plaintiff to pay the Defendant’s costs;

(3) Exhibits to be retained for 28 days.

Catchwords:

TORTS — Trespass — General principles – Where the Plaintiff brings proceedings in respect of a claim for trespass to his property (being a letterbox in a strata title) against the Defendant (a real estate agency) whom had deposited what were described as “unwanted real estate pamphlets” – Where the Defendant responded that his monthly newsletter was not “junk mail” – Where the Defendant made attempts to ameliorate deliveries to the Plaintiff’s mailbox but the Plaintiff would not provide his address or place a more specific sign – Where the Plaintiff contended that he had a right and exclusive possession of the letterbox – Where the Court finds that exclusive possession not established and any implied licence granted by the Plaintiff has not been withdrawn

DAMAGES –– Where the Plaintiff did not address general damages before addressing exemplary damages – Where the Court in any event would have declined to award exemplary damages

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 4.5

Evidence Act 1995 (NSW), s 191

Protection of the Environment Operations Act 1997 (NSW), ss 144A, 146A

Australian Postal Corporation Act 1989 (Cth), ss 29, 32

Cases Cited:

Kelly v Mosman Municipal Council (2010) LGERA 136; [2010] NSWCA 370

Halliday v Neville (1984) 155 CLR 1

Commissioner for Railways (NSW) v Cardy (1960) 104 CLR 274

Minister of State for the Army v Dalzeil (1944) 68 CLR 261; [1944] ALR 89

Newington v Windeyer (1985) 3 NSWLR 555

JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419

Powell v McFarlane (1979) 38 P & Cr 452

Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534

Sydney Local Health District v Macquarie International Clinic Pty Ltd [2020] NSWCA 274

Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGREA 98

State of New South Wales v Zreika [2012] NSWCA 37

Roberts v Rodney District Council [2001] 2 NZLR 402

Roy v O’Neill [2020] HCA 45; 95 ALJR 64; 385 ALR 187

Tesco Supermarkets v Nattrass [1971] HKHL1; [1972] AC 153

Category:

Principal judgment

Parties:

Mark Eldridge (in person)
Agent 37 Pty Ltd trading as Harcourts West Ryde

Representation:

Mr M Eldridge (Plaintiff in person)
Mr S Jolly (solicitor for the Defendant)

Defendant’s solicitors:
IHS Law ABN 72 440 161 050
6/1 Maxim Street, West Ryde
NSW 2144

File Number(s):

2020/00290733

Publication restriction:

Nil

Judgment

1. By Statement of Claim filed 7 October 2020, the Plaintiff brings proceedings for trespass to what he describes as a letterbox in respect of which he asserts the Defendant a real estate agency between February to June 2020 deposited what were described as “unwanted real estate pamphlets.”[1] The Statement of Claim was not a conventional form of pleading. Specifically, the Statement of Claim did not identify a proper address for service in accordance with the Rule 4.5 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); nominating only a post office box. [2] The Defendant nonetheless took no issue with the form of the initiating process.

   1. Statement of Claim at [1].

   2. Kelly v Mosman Municipal Council (2010) LGERA 136; [2010] NSWCA 370 at [64].

2. The Plaintiff’s claim was for the Court to order the cessation of the placement “of unsolicited material in letterboxes which were appropriately marked as prescribed by the New South Wales Environmental Protection Authority (EPA) and the Distribution Standards Board (DSB)” together with exemplary damages and costs. The Plaintiff did not identify any power to make an order for cessation sought had he succeeded.

3. Judgment was reserved on 13 May 2021. Earlier today prior to the delivery of judgment following enquires made the Plaintiff was granted leave without objection to tender Exhibit B referred to below. The Plaintiff also withdrew by consent tabs 11 and 12 from Exhibit A.

Evidence

4. Both parties relied on a Statement of Agreed Facts[3] based upon the pleadings and the affidavit evidence tendered. [4] These facts were as follows: –

   3. s 191 Evidence Act 1995 (NSW).

   4. Exhibit A, tab 1.

1. From 2017 to present, other than residential letterboxes with respect to which the Defendant has been requested to cease delivery and been provided with an address, the Defendant has been delivering a monthly newsletter published by the Defendant to all residential letterboxes within Dundas and surrounding suburbs.

2. The area includes a number of letterboxes marked “no junk mail.”

3. On or about 14 March 2018 the Plaintiff commenced residing at his current address in Dundas.

4. On or about mid-March 2018 the Plaintiff affixed to his letterbox the subject of these proceedings a sign which reads “No Junk Mail.”

5. From about mid-March 2018 to present the sign affixed to the letterbox the subject of these proceedings which reads “No Junk Mail” has been in place and clearly visible.

6. From about mid-March 2018 to present the Defendant continued to deliver the Defendant’s newsletters to the letterbox the subject of these proceedings.

7. During the period 5 February 2020 to present the Plaintiff has requested the Defendant to cease delivering material to all letterboxes marked “No Junk Mail.”

8. The Defendant has refused to cease delivering material to all letterboxes marked “No Junk Mail.”

9. In order to direct that delivery to the Plaintiff no longer occur, the Defendant has requested the Plaintiff’s address.

10. At no time has the Plaintiff provided The Defendant with his address.

5. The Plaintiff also served a Notice to Admit Facts on the Defendant on 17 April 2021. [5] The Defendant responded on 30 April 2020 [6] effectively accepting the following:

When placing its newsletters in “No Junk Mail” letterboxes, the Defendant (and/or its agents) did not discriminate between strata-titled units and single residential dwellings, and it delivered to both types of premises.

5. Exhibit A tab 9.

6. Exhibit A tab 10.

6. In support of his case, the Plaintiff relied on a residential tenancy agreement signed on 12 March 2018 to which he was a party. That residential tenancy agreement expired on 11 September 2018. The Plaintiff acknowledges that thereafter the lease reverted to a periodic agreement in accordance with paragraph 2, page 14 of the notes to the agreement. The Plaintiff indicated that the periodic agreement remained in effect and he continued to occupy the premises. He conceded that there were redactions in the tendered document to protect his privacy and security including de-identifying persons who are not party to the present proceedings. [7]

   7. Exhibit A, tab 6.

7. The Plaintiff wrote to the Real Estate Institute of New South Wales on 16 April 2020. He was advised that putting material into letterboxes with “No Advertising Material” is against the industry’s Code of Practice.” [8] However, evidence was advanced that the Defendant is not a member of the Real Estate Institute of New South Wales.

   8. Exhibit A, tab 8 p56.

8. The Plaintiff also wrote to the DSB which responded on 4 June 2020 in the following terms:

The Distribution Standards Board (DSB) is a self-regulatory organisation made up of members that are responsible and ethical Distributors. They abide by a Code of Practice and train their walkers to ensure that unwanted catalogues are not delivered to properties that display a “No Advertising Material” sticker or sign, and that catalogues are delivered to the letterbox in the appropriate manner to those properties that do wish to receive catalogues. These Distributors are generally responsible for delivering catalogues and leaflets from larger, major businesses and retailers.

Please note that Local Newspapers, political pamphlets, charitable organisations as well as local council and other community news is exempt by law and not classified as ‘advertising material’, thus we do not have jurisdiction to address the delivery of these materials. Further, Real Estate Agents, Take Away Stores and other small businesses that distribute their advertising material themselves are not members and we therefore cannot help with those particular complaints. In this situation, we advise that the best course of action is to communicate directly with the business that has produced the publication. We are working to broaden our scope to include these types of smaller businesses or publications that distribute their own leaflets and this is ongoing focus for the DSB. [9]

9. Exhibit A, tab 8.

9. On 22 September 2020, the Plaintiff sent a ‘Cease and Desist’ letter [10] to the Defendant noting that he had made a similar request by email on 5 February, 15 April 2020 and 1 June 2020 but received a further unwanted item in his letter box on or around 21 September 2020. He stated that he was exercising his right to exclude and any further incursions would be considered trespass. He stated that to assist in meeting the requirements of his letter he affixed a label to his letterbox as outlined in guidance by the (EPA) and the DSB. The Defendant responded that he had multiple contractors dropping the monthly newsletter and it was not junk mail. He again requested the address so he could address this and the Plaintiff was assured that this would kept private.

   10. Exhibit B.

10. In cross examination, the Plaintiff stated that he took his privacy seriously and wished to choose who he would provide information to. He stated he did not want unaddressed mail to be delivered and would not supply his address to a person that he has no relationship with. It was put to him that this case was not about trespass to his property. He maintained that it was. It was put to him that if he wished to prevent delivery he would put an “Australia Post Only” sign. He responded that he would take lawful deliveries from Australia Post but did not wish to preclude other legitimate deliveries. He stated he had an objection to adding signs to meet the particular needs of mailers. It was put to him that this case was about ceasing delivering to any letterboxes with “a No Junk Mail” sign not just his own. He responded that this was a natural outcome from complying with the law and if the collateral damage was to prevent delivery to others that was immaterial.

11. The Plaintiff did not advance his case on the basis that the Defendant knew his address and there was no evidence admitted to the contrary.

12. The Defendant for its part relied on a document produced by the Plaintiff in response to a Notice to Produce which had a redacted copy of the Strata Plan. [11] By Notice to Admit Facts dated 8 April 2021, the Defendant effectively conceded that the letterbox that is the subject of these proceedings is not located within the boundaries of the strata lot over which the Plaintiff holds a lease. [12] During cross-examination, the Plaintiff conceded that the letterboxes belonged to the strata body corporate and were to be found in Zone B which was common property. It was further conceded that the Defendant would have to enter the common property in order to access the letterboxes.

    11. Exhibit 1, tab 2.

    12. Exhibit 1, tab 5.

13. The Defendant relied on strata scheme By-Laws produced by the Plaintiff which provided in By-Law No.4:

“An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis. [13]

13. Exhibit 1, tab 3.

14. Mr Wayne Beard a director of the Defendant swore an affidavit dated 21 January 2021. He has been an estate agent since May 2008 and in January 2017, he established and became the director and licensee in charge of the Defendant which owns, and operates the Harcourts West Ryde franchise.

15. Mr Beard stated that he had no desire to deliver any materials with which he was associated to any person that objects to receiving that material, or to cause the Defendant to do so, as this would be damaging to his and the Defendant’s reputation. Mr Beard acknowledged that it would be counter-productive and damaging to any efforts to be engaged as an agent for any such person, and/or people that they know and share their negative experience with.

16. Since 2017, Mr Beard stated the Defendant has been delivering a monthly newsletter published by it to all residential letterboxes within Dundas and surrounding suburbs. They covered topics likely to be of interest to persons interested in real estate including setting a price for sale, land tax, selling off the market, the timing of selling, tactics agents use, market conditions, marketing, pitfalls prior to purchasing and tenancy. 26 issues of the newsletters were in evidence. [14]

    14. Exhibit 1, tab 6 (annexure B to Affidavit of Wayne Beard dated 21 January 2021).

17. Mr Beard stated that any recipient of the Defendant’s newsletters can stop receiving these newsletters by writing, emailing or telephoning and providing the recipient’s address so the Defendant can ensure that the newsletters would not be placed in their letterbox in future. The newsletters carry details of the Defendant, such that any recipient could make contact and request stopping delivery of these newsletters. Mr Beard acknowledged that many of the letterboxes that receive the Defendant’s newsletters have signs reading “No Junk Mail” affixed to them. In his view, the newsletters were not junk mail. He stated that the email the Plaintiff received from the DSB on 4 June 2020 acknowledged that the Defendant’s newsletter did not fall within the definition of “junk mail” and/or “advertising material” as it is a newsletter. Further he stated that in his experience the Defendant’s newsletter is not considered in general as “junk mail” by those who receive it because of those who had been receiving the newsletter since 2017, only 6 people including the Plaintiff have ever contacted the Defendant to request that they no longer receive the newsletter. All of those persons other than the Plaintiff provided their address so that that the Defendant could cease the delivery. Upon receipt of addresses the Defendant directed its employees and/or agents not deliver to those addresses and to the best of his knowledge, Mr Beard stated that none of those have received the newsletters since.

18. As at 28 October 2020, Mr Beard stated that the Defendant had added the following “opt out” script to its newsletter advising that if any recipient wishes to opt out of receiving future copies of the newsletters or letters to contact them with details provided.

19. Mr Beard stated that since the addition of the “opt out” script only one recipient of the newsletter (who is one of the six people referred to earlier) contacted the Defendant and provided an address to opt out. The Defendant has ceased delivering to that address.

20. Mr Beard states that had the Plaintiff contacted the Defendant to “opt out” and provided his address then the Defendant would have directed the delivery to the Plaintiff’s address cease. He states that the Plaintiff first contacted the Defendant on 5 February 2020 by email notifying him to stop placing “advertising material” in all letterboxes with signs reading “No Junk Mail”. He immediately replied that if he was provided with the address he would direct the Defendant’s employees/agents to cease delivering to that address.

21. Mr Beard further states that on several subsequent occasions he requested the Plaintiff’s address so that the Defendant could direct its employees/agents to cease delivery but at no time did the Plaintiff provide his address. He added that he also requested the Plaintiff to affix an “Australian Post Only” sign to his letterbox. He states that the Defendant does not deliver to letterboxes that have an “Australian Post Only” sign affixed to them and if the Plaintiff had affixed such a sign he would have ceased receiving the newsletters and/or any other material from the Defendant. The Plaintiff however was unwilling and refused to fix such a sign with letterbox.

22. Mr Beard stated that even if his understanding of the Defendants newsletters are not “junk mail” is incorrect, the difficulty that the Defendant has is that it delivers its monthly newsletters to a number of letterboxes that have signs reading “No Junk Mail” affixed to them since 2017 without any objection, the Defendant now has and enjoys an established right to continue to deliver to those letterboxes.

23. As a director, Mr Beard states that he has a duty to act in the Defendant’s best interests, which in his view is to continue to exercise its established rights with respect to those letterboxes. Mr Beard stated that on the Plaintiff’s evidence the Plaintiff himself has granted the Defendant the same established right to continue to deliver to his letterbox.

24. In cross-examination, Mr Beard reiterated that he did not consider the newsletter junk mail but accepted such signs were commonly used and that there were a few other signs also used. He described understanding “junk mail” to be mail that is advertising in nature or mail that is attempting to sell something. He accepted that his newsletters had details of the Defendant’s past listings.

Plaintiff’s submissions

25. The Plaintiff contended that he had a right to possession of the letterbox and it was immaterial that it was not referred to in his lease. He pointed to the fact that neither his parking nor storage spaces were specifically listed in his tenancy agreement. He further stated that as he had a key to the letterbox he could be found to have exclusive possession on his part of the common property fixture.

26. Secondly, the Plaintiff argued that the Defendant’s act of delivering the newsletter was a direct interference with his right of possession and it was not open to the Defendant to dictate the means of revoking the license.

27. The Plaintiff contended the Defendant’s argument as to the existence of an implied license to deliver did not apply as it had been revoked by the only practical means open to him. Reference was made to the three potential means by which this could be done referenced to Halliday v Neville [15] being baring access, placing a sign or verbal instructions. He stated that an established right does not arise because one gets away with it and to suggest otherwise was akin to saying that you get away with speeding until you get caught. He contended that the concept that something that was not objected to was accepted should not be endorsed. He stated that the efficacy of a “no junk mail” sign is not to be determined by the number of objection otherwise at what point could it be said to evaporate. Further, the practical effect of the Defendant’s demand for an alternative sign would be that he would be required to need the individual requirement of each body that sought to deliver similar items.

    15. (1984) 155 CLR 1.

28. The Plaintiff again drew attention to the DSB and the EPA guidelines.

Defendant’s Submissions

29. The Defendant argued that the Plaintiff’s case must fail for the following reasons:

1. The Plaintiff is not entitled to exclude its newsletter as he is not an owner and does not have exclusive possessory rights. The Plaintiff noted that he was one of two tenants on a residential lease and had no right to exclude access to the letterbox as it was part of the common property and By-law No 4 precluded him from any obstruction of common property;

2. The sign itself was insufficient to bar the delivery of the Defendant’s newsletter;

3. The sign would in any event be insufficient to block and withdraw the Defendant’s established right to deliver to the Defendant’s property established by the fact that the Defendant had been delivering to the Plaintiff since 5 February 2020 and that it has not been properly revoked. This was said to be based on statements by Menzies J in Commissioner for Railways (NSW) v Cardy; ^[16]

1. The Defendant had the same right to deliver to every letter box that has not been objected to for the past 3 to 4 years.

   16. (1960) 104 CLR 274 at p304.

Consideration

30. Section 144A of the Protection of the Environment Operations Act 1997 (NSW) (the 1997 Act) provides:

advertising material means any paper product (including a leaflet, brochure or magazine), or other material thing, that contains advertising or promotional matter.

31. Although section 146A of the 1997 Act creates an offence of depositing advertising material in or on any place, it specifically excludes material:

1. in a receptacle that is provided for the deposit of mail.

32. Section 29 of the Australian Postal Corporation Act 1989 (Cth) (the 1989 Act) confers on Australia Post what can only be described as a monopoly for the carriage of letters subject to section 30. The exception provides inter alia:

(1) The reserved services do not include any of the following:

...

(c) the carriage of a newspaper, magazine, book, catalogue or leaflet, whether or not directed to a particular person or address and whether or not enclosed in any sort of cover.

33. Hence again the section would not prohibit the delivery of the newsletter in question by the Defendant and whilst a “No Junk Mail” sign may be placed on a letter box any defiance is not a criminal offence.

34. As to whether these provisions created some statutory right in the Defendant’s favour Latham CJ stated in Minister of State for the Army v Dalzeil:[17]

As a general rule a proviso should not be interpreted as if it were a substantive provision independent of the provisions to which it is a proviso. Speaking generally, a proviso is a provision which is ‘dependent on the main enactment’ and not an ‘independent enacting clause’: Cf R v Dibdin [1910] P 51 at 125. But though a provision framed as a proviso ought to be drafted and generally should be construed only as such, a consideration of both the main and the subsidiary provisions of an enactment may show that the proviso contains matter which is really ‘in substance a fresh enactment, adding to and not merely qualifying that which goes before’ (Rhondda Urban District Council v Taff Vale Railway Co (1909) AC 253 at 258).

17. (1944) 68 CLR 261; [1944] ALR 89.

35. In this case, neither party suggested that the Defendant had an unfettered right to distribute the material in question.

36. This is a civil case brought in trespass. The Defendant challenges the Plaintiff’s ability to bring it citing:

1. his lack of exclusive possession;

2. any implied license has not been revoked; and

3. established rights.

37. The first issue therefore is whether the Plaintiff had exclusive possession of his mail box such that it entitled him to bring these proceedings. It is accepted that the mail box in question is part of the common property belonging to the body corporate. Whether or not designated parking and storage facilities are part of the tenanted lot or common property matters little although the indication is that they belonged to individual units. [18]

    18. Exhibit 1, tab 2.

38. In order to establish that the Plaintiff was in exclusive possession of the letterbox in question, it is necessary to establish both factual possession and a requisite intention to possess. [19] The latter involves an intention in one’s own name and on one’s own behalf to exclude the world at large including the owner with the paper title if he be not himself the possessor so far as is reasonably practical and so far as the process of the law will allow. [20] A mere license to use is insufficient. [21]

    19. JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419.

    20. Powell v McFarlane (1979) 38 P & Cr 452.

    21. Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 per Barrett J at [105]-[106].

39. I do not accept that by simply possessing a key to mail box and placing a sign of the kind described evidences an intention to exclude the owner. The terms of the Strata By-laws clearly places obligations on the owners and occupiers of the lots as evidenced in By-law No 4. Nor is the case comparable to the situation discussed in Newington v Windeyer. [22]

    22. (1985) 3 NSWLR 555 per McHugh JA at p563-4.

40. Even if I were wrong in this regard, it was accepted that (subject to any signage) the presence of the open mailbox would otherwise indicate an implied license to deposit mail within it. [23] That leaves the question of whether a sign stating “No Junk Mail” would amount to a withdrawal of the implied license.

    23. Halliday v Neville (1984) 155 CLR 1 at [6]-[7].

41. In Wilson v State of New South Wales Hodgson JA stated at [51]:

…the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence. This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation. If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with the authority to revoke the licence. But in some cases, more particular facts may need to be considered. [24] (emphasis added)

24. [2010] NSWCA 333 at [51] (Young and McColl JJA agreeing). See also Kiefel CJ in Roy v O’Neill [2020] HCA 45 at [11]; (2020) 385 ALR 187.

42. As was apparent during the course of argument, the term “No Junk Mail” has no defined or clear meaning. At the very least it gives rise to uncertainty as to what it embraces. For example, it is not clear as to whether it extends to all unsolicited/unaddressed mail including community distributions such as a lost animal notices, local newsletters or notices as to local development.

43. Perhaps that is the reason other agencies recommend other signage.

44. To give one example, Australia Post under section 32 of the 1989 Act applies its terms and conditions to its delivery service. Clause 7.1.3 of the Australia Post’s terms and conditions state that it shall deliver unaddressed mail in the normal course of its business provided always that:

articles, cannot be delivered to points displaying stickers or signs bearing the words "no unaddressed advertising material" or other similar request unless they are community notices and their delivery is permitted by law.

45. Clause 2.7 of its policies define:

"Community notices" means articles lodged pursuant to this Agreement by or under the authority of, local, State or Federal government or their agencies, political organisations, religious or educational institutions, or charitable bodies (including benevolent and welfare societies).

46. The description “No Unaddressed Advertising Mail” is more specific than the description “No Junk Mail” although the latter may be viewed by some as being a “similar request.” Nevertheless, even then Australia Post qualifies the effect of notices such that it does not include community notices.

47. The DSB correspondence referred to in [7] above refers to a code of practice based on display of a “No Advertising Material” sign.

48. I accept that the newsletters provided in this instance may be a source of annoyance to the Plaintiff. However characterised they can also be seen as a form of institutional marketing designed to raise the Defendant’s goodwill amongst potential customers. Nevertheless, Mr Beard did not consider them to be “junk mail.” Nor am I satisfied that faced with such a sign a reasonable person in the Defendant’s position would view them as “junk mail” such that standing alone any implied license granted by the Plaintiff would be viewed as having been withdrawn even accepting that the Defendant was seen as having the appropriate authority. However that is not the end of the matter.

49. The Plaintiff had the relevant sign placed on the letterbox from mid-March to 2018 but did not specifically bring to the Defendant’s notice his desire that he required obedience to the said sign as he viewed it and not to receive its said newsletters until 5 February 2020.

50. The Defendant’s argument that it had an established right to make the newsletter deliveries based on the Plaintiff’s previous inaction was said to be based on statements in Commissioner for Railways (NSW) v Cardy where Menzies J held:

…… A licence may, of course, be implied, but there is something incongruous about treating as an implied licensee one whose presence on the land was against the will of the occupier in the sense that, had the occupier been asked, he would almost certainly have refused permission to come upon his land. The law has, however, adopted a more objective test so that it can now be said that if an occupier of land tolerates strangers coming upon his land, it may be inferred that they do so as licensees. An occupier who is aware that strangers come upon his land despite his professed disapproval and does nothing more to prevent or discourage them from doing so may be said to tolerate that which he may nevertheless dislike. Thus, a warning to keep out that is openly disregarded will not necessarily negative leave or licence, nor will the existence of a fence or a hedge through which intruders habitually pass. On the other hand, it cannot be inferred that an occupier permits strangers to come upon his land merely because he has not done all that is in his power to keep them out. It is not the duty of an occupier of land to prevent trespassing upon his land, but, if his conduct towards intruders affords ground for inferring that he is prepared to put up with their disregard of his rights, he may find that an inferred acquiescence in their intrusion has turned those who were trespassers into licensees. [25]

25. (1960) 104 CLR 274 at p304.

51. Commissioner for Railways (NSW) v Cardy was a personal injury case and Menzies J’s decision was a dissenting one on the facts. Nevertheless, His Honour’s statements are in some respects consistent with the approaches of McTiernan[26] and to Windeyer JJ. [27]

    26. (1960) 104 CLR 274, p228 at [3].

    27. (1960) 104 CLR 274, p326 at [24].

52. In any event I would propose to deal with the matter in accordance with the principles as stated at [41].

53. The Plaintiff makes no claim for trespass prior to 5 February 2020. Whatever be the position prior to that date, the Plaintiff’s claim is that he thereafter made it then apparent to the Defendant that it should no longer deliver the said newsletters to him. The question therefore is whether in all such circumstances (including the content of the sign in question, the previous acquiescence to the deliveries, the subsequent communications including the refusal to provide an address); the notification from this point forward was sufficient to indicate a withdrawal of any implied license to the Defendant or a reasonable person in its position. In my view they were not they were not.

54. It is unnecessary to consider whether the relatively few complaints from other residents whose mailboxes had “No Junk Mail” signs located on them supported the position taken by the Defendant. However, one consequence of the Plaintiff’s argument had it succeeded would be to deprive them of the newsletters when they may have a different position as to deliveries.

55. It is also unnecessary to consider whether the fact that there was more than one person on the tenancy agreement made it necessary to have all parties withdraw any implied licence. [28] In my view any implied licence has not been withdrawn.

    28. See Wilson v State of New South Wales [2010] NSWCA 333 at [53].

Damages

56. On the assumption that my earlier conclusions are wrong, I turn to the question of damages.

57. In Sydney Local Health District v Macquarie International Clinic Pty Ltd [29] the Court stated:

The tort of trespass is an unusual one which exists “though the damage be nothing”: see Entick v Carrington (1765) 19 St Tr 1029 at 1066 per Lord Camden LCJ, cited by Brennan J in Halliday v Nevill (1984) 155 CLR 1 at 10; [1984] HCA 80. Trespass to land is actionable per se (see Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353; (2004) 135 LGERA 98 at [190] (Tellamist)) and “so nominal damages are awarded as a recognition of the infraction of the plaintiff's possessory right”: see Mayfair Ltd v Pears [1987] 1 NZLR 459 at 465 (Mayfair).

That is not to say, however, that substantial damages may not be awarded for the tort. They may fall into different categories, as Santow JA explained in Tellamist at [193]–[200], being (a) cases where there is a benefit to the defendant without actual loss to the plaintiff; (b) where the benefit to the defendant correlates to the actual loss to the plaintiff; and (c) where the trespass involves loss to the plaintiff and no correlative gain by the defendant. To these three categories may arguably be added a fourth, namely where there is no benefit to the defendant and no actual loss to the plaintiff. In such a case, only nominal damages would lie.

29. [2020] NSWCA 274 at [73]-[74] (Bell P, Gleeson JA and Payne JA agreeing).

58. Santow JA was in dissent in Port Stephens Shire Council v Tellamist Pty Ltd. [30] Nevertheless, what appears to have been adopted in Sydney Local Health District v Macquarie International Clinic Pty Ltd was his Honour’s reference to the category where the Defendant derives a benefit without actual loss to the Plaintiff stating that such damages are “an anomalous measure in the law of torts apparently resting on a presumption that the Plaintiff has incurred loss and the Defendant has benefited from the trespass.”[31]

    30. [2004] NSWCA 353; (2004) 135 LGREA 98 at [190].

    31. At [82] citing Roberts v Rodney District Council [2001] 2 NZLR 402 at [27]-[28].

59. The Plaintiff did not seek damages in the form described by Santow J but rather exemplary damages to “discourage”, ‘provide and effective sanction’ and “punish and deter” the Defendant. [32]

    32. Statement of Claim at [8]-[10].

60. The damages particularised were calculated as 10 to 20% of the estimated commissions based on what is described as a “survey of the numbers of No Junk Mail letterboxes” said to show that in the Dundas area 13.6% of letterboxes had “no junk mail” signage. [33] In a revised document the claim made was increased to between 50 and 80% of commissions. [34] There is a conceptual difficulty in estimating damages based on receipt of commissions from “No Junk Mail” signed households let alone the fact that there is no evidence to support the calculations or estimates made.

    33. Statement of Claim at [11] and Annexure A.

    34. Exhibit A, tab 13.

61. Moreover, the relevant principles governing the award of exemplary damages were conveniently summarised in the State of New South Wales v Zreika ^[35] by Sackville AJA, where his Honour stated:

Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future and to reflect "detestation " for the action: Lamb v Cotogno [1987] HCA 47; 164 CLR 1, at 8. Exemplary damages are awarded rarely and not every finding of fault warrants an award: Lamb v Cotogno, at 6 [12]. Nonetheless, such damages can be awarded in a wide variety of circumstances. Generally speaking, what is required for an award is "conscious wrongdoing in contumelious disregard of another's rights ": Gray v MAC, at 7 [14].

35. [2012] NSWCA 37 at [61].

62. Accepting that the mind of Mr Beard can be ascribed to the Defendant,[36] I do not accept that the Plaintiff has established that it acted in conscious wrongdoing in contumelious disregard of the Plaintiff’s rights. It considered that it was able to distribute the newsletters in the circumstances and when the Plaintiff specifically raised his objection the Defendant proposed solutions that included providing an address and an alternative sign. Both proposals were declined. The Defendant to this day is unaware of the Plaintiff’s address so that it could cease the distribution of the offending newsletters to him. In the circumstances, I would have in any event declined to award any exemplary damages.

    36. see Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353 at [403] adopting the test set out by Lord Reid in Tesco Supermarkets v Nattrass [1971] HKHL1; [1972] AC 153 at 170.

63. For these reasons the Court orders:

1. Verdict for the Defendant;

2. I will hear from the parties as to costs;

3. Exhibits to be retained for 28 days.

Endnotes

Amendments

03 June 2021 - Paragraph [11] - corrected typographical error with concurrence of the parties.

07 June 2021 - The category titled “decision” on the cover sheet is to read as “See [63]”.

Paragraph [1] – the word “the” is omitted that precedes “Rule 4.5 of the Uniform Civil Procedure Rules 2005 (NSW)”.

Paragraph [27] – In the second last sentence, the word “objection” is to be replaced with “objections;”.

Paragraph [45] – the word “policies” is to be replaced with “terms and conditions”.

Paragraph [47] – the reference to [7] is to be replaced with [8].

Paragraph [48] – the word “Defendant” is to be replaced with “Plaintiff” in the second last line.

Decision last updated: 07 June 2021