Maynes v Casey

[2010] NSWDC 285

CITATION:	Maynes & Ors v Casey & Ors [2010] NSWDC 285
HEARING DATE(S):	21 June 2010 to 25 June 2010
JUDGMENT DATE:	23 December 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict for the defendants. 2. The plaintiffs are to pay the defendants’ costs of the proceedings as assessed or agreed. This order is suspended for a period of 21 days to allow any party to list the matter within that period for further argument on the issue of costs. 3. Exhibits and affidavits will be retained for 28 days. 4. My reasons are published.
CATCHWORDS:	TRESPASS - Whether and when defendants notified of withdrawal of implied right of entry for lawful purposes - Whether first defendant remained on plaintiffs’ property for unreasonable period after notification - Whether entry on public road dissecting property amounted to trespass - BREACH OF PRIVACY - Whether tort of privacy recognised at common law - Whether viewing of plaintiffs’ property from public road for purpose of gathering evidence a breach of privacy - VICARIOUS LIABILITY - For conduct of contractor - DAMAGES - Absence of evidence to support claim of psychological injury
LEGISLATION CITED:	Crimes Act 1900 (NSW) Roads Act 1993
CASES CITED:	ABC v Lenah Game Meats Pty Limited (2001) 208 CLR 199 Doe v ABC & Ors [2007] VCC 281 Giller v Procopets [2008] VSCA 236 Grosse v Purvis [2003] QDC 151 Halliday v Nevill (1984) 155 CLR 1 John Fairfax Publications Pty Limited v Hitchcock [2007] NSWCA 364 Kuru v NSW (2008) 236 CLR 1 Leighton Contractors Pty Limited v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1 NSW v Ibbett (2006) 229 CLR 638 Plenty v Dillon (1991) 171 CLR 635 Thompson v Vincent [2005] NSWCA 219
PARTIES:	Lindsay Arthur Maynes (first plaintiff) Susan Linda Maynes (second plaintiff) Samuel Ian Casey (first defendant) Geoffrey John Casey (second defendant) Cowra Shire Council (third defendant)
FILE NUMBER(S):	2009/00334864
COUNSEL:	Mr P E King (for all plaintiffs) Mr J A Trebeck (for all defendants)
SOLICITORS:	McKell's Solicitors (for all plaintiffs) Yeldham Price O'Brien Lusk (for all defendants)

JUDGMENT

1 Lindsay Arthur Maynes, the first plaintiff, and Susan Linda Maynes, the second plaintiff, are the registered proprietors of a farming property known as Berkeley, near Woodstock, in the Cowra Shire of New South Wales. They claimed also to be in occupation of land within a road reserve leased from Cowra Shire Council.

2 They brought claims against Samuel Ian Casey, the first defendant, in trespass, assault and breach of privacy. They brought claims against Geoffrey John Casey, the second defendant, in trespass and breach of privacy.

3 Their claims against Cowra Shire Council, the third defendant, were resolved prior to the hearing.

4 The claims arose out of the attendance by the first defendant upon the property on 12 October 2008 for the purpose of serving Local Court summonses issued by Cowra Shire Council for the recovery of unpaid rates.

5 The summonses were prepared by the second defendant, a solicitor, on the instructions of the Council. The first defendant conducted business as a process server. He was engaged by the second defendant to serve the summons on the plaintiffs. He was the second defendant’s son.

6 The plaintiffs claimed that the first defendant trespassed on their property on 12 October 2008 when he attended to serve the summons. They claimed in trespass against the second defendant on the basis that the first defendant was his agent and acting on his instructions on 12 October 2008.

7 The statement of claim in the proceedings was served on the defendants in May 2009. After service of the statement of claim the defendants went to the road, known as Bullfrog Road, leading to the property on a number of occasions between May and June 2009. In their amended statement of claim the plaintiffs pleaded that on those occasions the defendants breached their privacy. In submissions they claimed that the defendants trespassed on their property.

8 The plaintiffs claimed that as a result of the conduct of the defendants they suffered shock, mental distress, unresolved feelings of anger and disappointment, fear and apprehension. They claimed to have incurred expense.

9 The claims raised the following issues:

1 The extent to which the defendants were, on 12 October 2008, aware that the plaintiffs had withdrawn any implied consent to their entry onto the property;

2 The extent to which the defendants trespassed on the road reserve in which Bullfrog Road was constructed;

3 The extent to which the defendants trespassed on the property of the plaintiffs;

4 The extent of any assault on the plaintiffs by the first defendant;

5 The extent to which the defendants breached any right of the plaintiffs to privacy;

6 The nature of the relationship between the first and second defendants and whether that relationship imposed on the second defendant responsibility for the conduct of the first defendant;

7 The extent of any injury, damage or loss suffered by the plaintiffs;

8 Whether the proceedings were an abuse of process.

THE CLAIMS

The alleged trespass/assault of 12 October 2008

10 The plaintiffs were in default in the payment of rates levied by the Council on their property. The second defendant received instructions to take proceedings to recover the unpaid rates. He arranged for the issue of summonsesⁱ out of the Local Court at Cowra on 3 October 2008. He engaged the first defendant to serve the summonses on the plaintiffs. The first defendant picked up the summonses from the second defendant’s office in the week commencing 6 October 2008.

11 On 12 October 2008, a Sunday, the first defendant, having made inquiries of the location of the plaintiffs’ property, drove on to Bullfrog Road. He went late in the evening, arriving at the property between 9:30 and 9:45 pm. His vehicle was a Mitsubishi Triton utility.

12 The first defendant said that as he left Reg Hailstone Way and travelled on Bullfrog Road his headlights were on high beam and his windscreen was clean and clear. Since he was unfamiliar with the road he travelled at between 30 and 40 km/h, slowing down as he passed over the two cattle grids that were in the road.

13 He said he was looking for signs in order to find the plaintiffs’ property. He denied that he saw any sign at the second of the grids.

14 He then drove the full length of Bullfrog Road. He stopped at a property at the northern end of the road and was directed by an occupant there to the plaintiffs’ property. The route took him back along Bullfrog Road to the intersection with the access road that lead to the plaintiffs’ house.

15 The first defendant said he saw no signs at this intersection and none on the access road or the two gates that were positioned on the access road. It was agreed that there were no relevant signs on this part of the property.

16 His version of what occurred when he arrived at the house was markedly different to that of the plaintiffs.

17 The first defendant said that he stopped outside the house and was met by two barking dogs. He left his utility and saw a man in the house paddock. His evidenceⁱⁱ continued:

I said to him:

“Are the dogs OK or biters?”

He said:

“There [sic] OK.”

I said as I walked through an open gate … into the house paddock:

“I’m looking for Mr & Mrs Maynes of Berkley”.

He said:

“Who are you?”

I said:

“I’m Sam Casey”.

He said:

“Hello Sam, how are you?”

He held out his hand for a handshake. I shook his hand and said:

“Good thanks Mr Maynes and yourself?”

He said:

“Alright”.

18 The first defendant said he saw the second plaintiff inside the house.

19 After this exchange with the first plaintiff, he told him that he was at the property to serve documents from Cowra Court. He said the first plaintiff’s demeanour changed. The first plaintiff said he did not want the documents, that he did not know the Maynes and that the documents could not be given to him.

20 The second plaintiff said: “You are trespassing on our property. Take the papers and get off our property."ⁱⁱⁱ The first defendant did not leave but continued in conversation with the plaintiffs. Ultimately he placed the documents on the ground.

21 He returned to his vehicle and saw the first plaintiff take the registration number of his vehicle. He offered further information and was asked for his name and address which he provided. He said he saw no sign as he left the property.

22 The first defendant said he was concerned about what happened at the plaintiffs’ property and reported his concerns to the second defendant the following day. The second defendant advised him to record those events in writing. The first defendant prepared a handwritten memorandum^iv on 13 October 2008.

23 The plaintiffs said that they were alerted to the impending arrival of the first defendant by the neighbour who had given him directions to their property. They said the first defendant drove to the property at high speed. Mr Maynes affidavit evidence was as follows:

…the driver called out something through the window. Before I could answer he had flung open the door and was out, striding toward me. I felt that he was about to make contact with me and I fell back. As he came towards me, he had his hands up in the air waving something around. This person took no notice of the dogs and I observed he aggressively pushed past them. ^v

24 The first plaintiff said he told the first defendant that he was not interested in why he came to the property. He said he told him that he was trespassing and that he had passed a no trespassing sign. He asked him if he was covered by insurance.

25 He said the first defendant continued to behave aggressively and that he swore at him several times in highly abusive language. He said that when he turned to go to the house the first defendant followed him, causing him to fear that he would make contact. He told the first defendant on two more occasions to leave.

26 He said the first defendant threw the documents onto the ground and turned to leave. At the second plaintiff’s suggestion, the first plaintiff took the registration number of the vehicle. He said the first defendant called out his name and address as he drove away.

27 The second plaintiff set out in her affidavit^vi a version of events that was essentially similar to that of the first plaintiff. She said she remained in the house. She gave details of parts of the conversation that she said she overhead from inside the house. In her evidence to the Court, she denied that she heard any part of the conversation.

28 The first defendant denied that he travelled at excessive speed at any time on 12 October 2008. He said he was carrying tools in metal boxes on the back of his utility that weighed about 700 kilograms and that this load could have caused the noises from his vehicle that the plaintiffs said that they heard as he crossed the channel and grids that were in the access road. He denied that he drove erratically from one side of the access road to the other before pulling up at the gates to the house paddock.

29 He denied that he behaved in an intimidating fashion or that he approached the first plaintiff in a way that suggested he intended to hit or touch him.

30 He said the first plaintiff initially said nothing of trespass. The issue of trespass was first raised by the second plaintiff with the first plaintiff raising it as he was leaving and walking to his vehicle. The first defendant said he did not leave immediately after the second plaintiff told him he was trespassing because she asked him a question at the same time and there was further conversation before he departed. He claimed that he left as soon as was reasonable after the issue of trespass was raised.

31 Questioned as to his motive for making a handwritten note the next day, the first defendant said the plaintiffs threatened to sue him and he was anxious to record events to assist his recollection at a later stage.

32 The first plaintiff agreed with some minor parts of the conversation as alleged by the first defendant. He agreed that the first defendant described his activities as analogous to that of a postman. He agreed that the first defendant volunteered his name and address.

The alleged breaches of privacy/further trespasses

33 The allegation contained in the statement of claim was that on 12 October 2008 and thereafter, up to June 2009, the defendants entered on the property and undertook activities in breach of their right to privacy.

34 The defendants agreed that they returned to Bullfrog Road on a number of occasions. They said they did so to obtain information for the purpose of defending the action brought against them.

35 They denied that at any stage they left that part of the road reserve upon which the formed carriageway known as Bullfrog Road was constructed.

23 May 2009

36 The second defendant said that, having been served with the statement of claim on 22 May 2009, he drove to Bullfrog Road at about 10 – 10:30 pm on 23 May 2009. He said he was looking for a sign that was alleged in the statement of claim to be prominent. He was unable to find a sign of the nature described in the statement of claim.

37 The second defendant said this was the first time he travelled to or over Bullfrog Road.

24 May 2009

38 The second defendant returned on 24 May 2009 in daylight and took photographs, some^vii of which were in evidence. Those photographs indicated the positions of two signs on the fence to the west of the cattle grid.

26 May 2009

39 The second defendant returned during the day on 26 May 2009. On that occasion he took his video camera. He said he was looking for a sign on a gate but did not see one. He left to avoid a confrontation with the second plaintiff. He said this was the first time he travelled beyond the second cattle grid in daylight.

40 He prepared a hand written a file note^viii concerning this visit. The note recorded that with his secretary, Ms Langfield, the second defendant travelled on Bullfrog Road to a point north of the access road to the plaintiffs’ property. They then turned and drove towards Reg Hailstone Way. They stopped at a point where they were able to see a house and sheds about 500 to 600 metres away.

41 The second defendant recorded that he saw a white utility drive over a paddock and onto the access road, turn left and drive on Bullfrog Road towards his position. He said the oncoming vehicle was driven in the centre of Bullfrog Road which, at that point, was only wide enough to allow two cars to pass.

42 The second defendant said he drove towards the white utility. It stopped in the centre of the road about 50 metres from his vehicle. He continued driving but found it necessary to stay to the left and drive through a table drain to pass the utility.

43 He believed the second plaintiff was driving the utility.

44 The second defendant said the utility was driven at speed on the access road so that objects fell from its rear. He estimated its speed in the centre of Bullfrog Road at 70 to 80 km/h.

45 Ms Langfield prepared a file note^ix in similar terms.

46 The second plaintiff said she saw the second defendant’s car travelling on Bullfrog Road. She saw it stop twice. She said at all times the occupants of the car had a view of the house, sheds and house paddocks on the property.

47 The second plaintiff agreed that she drove fast to intercept the second defendant’s vehicle. She said wood that she was gathering fell from the utility because in her haste she left the tailgate open. She agreed that she drove towards the second defendant’s car that she said was coming towards her reasonably quickly. It suddenly swerved to pass her.

48 The second plaintiff said:

Mr Geoffrey Casey does not appear to have entered our property, but appears to have remained on the public road. ^x

49 The second plaintiff said that she parked in the centre of the road so that the car would have to go around her and she could identify the occupants. She denied that she forced the second defendant’s vehicle off the road or that she drove towards it at speed.

50 She accepted that the second defendant and Ms Langfield went to Bullfrog Road to investigate for the purpose of defending the action. Her view was that they went beyond what was necessary. She considered that they needed only to look at the stop sign at the second cattle grid. Anything more, she regarded to be surveillance and in breach of her right to privacy.

11 June 2009

51 The second defendant, accompanied by the first defendant, went back to Bullfrog Road on 11 June 2009 when they took measurements of the distance of the signs from the centre of Bullfrog Road as it crossed the grid.

52 They recorded the distance from the centre of the grid to the centre of the stop sign at 11.45 metres.

53 The first defendant said that having taken measurements at the second stock grid, they travelled to the intersection of Bullfrog Road with the access road. They stopped there and left the car looking for any sign. They found none.

54 They then travelled further north on Bullfrog Road and again left the car and looked for a sign on a gate or fence near the house paddock. They saw nothing. They took several photographs of the fence around the house paddock, two photographs of the first plaintiff, one photograph of the second plaintiff and one of the number plate on the plaintiffs’ vehicle.

55 The defendants denied they engaged in any activity that involved surveillance or breach of the plaintiffs’ right to privacy. They denied that they looked into the homestead. They denied that they or the second defendant’s car left the formed public road.

56 The second plaintiff said she saw the first and second defendant standing in the spot marked intruder on a drawing^xi indicating the positions of Bullfrog Road and cattle grids in relation to the boundaries of the property. She agreed that this position was some hundreds of metres from the point at which she was standing.

57 The second plaintiff took photographs^xii of the defendants on this occasion. She said she believed the second defendant left the formed part of the road, not because she could actually see that he did so but because in her view it would be unsafe to stand on the road at that point.

24 June 2009

58 On this date the first and second defendants went to the second cattle grid at about 6:30 pm in order to video record conditions after dark.

59 They said they did not travel beyond the grid. There was no evidence from the plaintiffs to suggest that they were disturbed on this occasion.

Other attendances

60 The second plaintiff said the defendants came out to Bullfrog Road many times. She estimated that they came eight to nine times. This suggested to her that they had no respect for the rights of the plaintiffs.

61 There was no evidence of any other attendances by the defendants beyond the second cattle grid within the period pleaded, that is, between October 2008 and June 2009.

ISSUE 1 - NOTICE

62 The plaintiffs claimed that the defendants were notified that their express permission was required prior to entry onto their property by the following means:

1 Signs erected at the boundaries of the property;

2 Correspondence they forwarded to the local newspaper, the Cowra Guardian;

3 Correspondence they forwarded to Cowra Shire Council.

Signage

63 Bullfrog Road is a public road constructed within the road reserve that dissects the plaintiffs’ property. This road intersects at its southern end with another public road, Reg Hailstone Way. Bullfrog Road crossed the boundary to the property, generally at its northern and southern boundaries. There were two cattle grids on Bullfrog Road prior to its crossing the southern boundary of the property. The second of those grids was positioned at an ungated entrance through which Bullfrog Road passed. At this point it was of single carriageway width. It was of insufficient width to allow heavy vehicles or farm machinery to pass.

64 A set of double gates, positioned to the west of this grid, provided an entry point for larger vehicles.

65 Bullfrog Road then proceeded in an easterly direction for a distance of approximately 300 metres where it turned sharply to the north. At the corner point of this turn was the entry to an access road leading to the house on the property occupied by the plaintiffs. The distance between the entry to the access road and the gate leading to a fenced area around the house was about 656 metres.

66 The plaintiffs gave evidence that they were troubled by trespassers on the property in 2007 as a consequence of which they erected signs at the two points at which Bullfrog Road crossed the northern and southern boundaries of the property.

67 The second plaintiff said she undertook research on the internet and located High Court decisions that verified her belief that she had the right to refuse admission to the property. She attached to her affidavit the copy^xiii that appeared on the signs. The first plaintiff attached to his affidavit a photograph^xiv of one of the signs.

68 The first plaintiff stated that the sign was erected at the main entrance to the property. The second plaintiff stated:

31. In deciding where to place the No Trespassing sign we placed it on the gate of Berkeley adjacent to Reg Hailstone Way so as to clearly indicate trespassing on Berkeley without express permission was prohibited.

32. Therefore we placed the sign at a point where we felt it would not impede lawful road entrance but would clearly indicate that this public entrance did not apply to the property itself. ^xv

69 It was apparent from photographic evidence that the stop sign was not placed on a gate. Nor was it adjacent to Reg Hailstone Way.

70 The sign was in fact placed on the fence erected on the southern boundary about 11.46 metres from the centre of the cattle grid. The defendants measured the sign at 600 mm by 900 mm. The first plaintiff accepted the accuracy of these measurements. The fence adjacent to the cattle grid comprised three panels leading to the double gates. The sign was positioned on the third panel to the west of the grid, close to the double gates. There was a second sign on the fence. This sign was located on the second panel west of the grid. It contained the words Berkeley S&S Maynes.

71 The second plaintiff agreed that the stop sign was not on a gate or adjacent to Reg Hailstone Way. She agreed that it was positioned on the fence adjacent to a gate. This gate, however, was not at the cattle grid but one of the double gates used to provide access for large vehicles or farm machinery.

72 The second plaintiff said she undertook research concerning the appropriate position for the stop sign. She looked at the positions of signs erected by others and noted that, in the majority of cases, they were on fences adjacent to gates but not on the gates themselves.

73 She agreed that there were many options available for the positioning of the sign on the access road leading from Bullfrog Road to their house so that it would be visible. She agreed that it would be helpful to visitors who arrived after dark and there was a greater prospect that a sign would be seen at night if it was positioned close to the road and illuminated or prepared with reflective paint. She appeared to consider that it was not necessary to make provision for persons entering Bullfrog Road in darkness because the plaintiffs rarely received visitors after dark.

74 The first plaintiff agreed that a prudent driver at night would approach the cattle grid with caution, watching for potholes, stock or kangaroos and that it would be necessary to steer carefully over the narrow carriageway between the metal skirts on each side of the grid.

75 He agreed that caution was also required to negotiate a slight right hand turn on approach to the cattle grid making necessary a steering change 40 to 50 metres prior to the grid.

76 He said he positioned the sign to do all that he reasonably could to draw attention to the requirement for express permission prior to entry onto the property. He agreed that the prospects that a night time visitor would see the sign would be improved if the sign were positioned where it could be picked up headlights or closer to the grid. He was concerned that those using the double gate then would not see the sign.

77 The plaintiffs did not place a sign at the intersection between Bullfrog Road and the access road to their house because trespassers could then enter through the double gates and cross the paddock before they saw any sign. The second plaintiff said no sign was placed at this intersection because it was not the first point of entry to the property. The plaintiffs appeared not to contemplate the use of additional signage at the entry to the access road.

78 The first defendant said he had never travelled over Bullfrog Road prior to 12 October 2008. He denied any knowledge of the presence of the sign prior to 12 October 2008 or that he was aware that the permission of the plaintiffs was required before entering the property.

79 He said he drove on to the cattle grids with his headlights on high beam at a speed of about 30 to 40 km/h. He said he was looking for signs because he wanted to find the plaintiffs’ property. He denied that he was not paying attention to the road or that he was speeding or driving erratically. He denied that he was annoyed or that he had been drinking during the day. He denied that he saw the sign and kept going because he thought he was entitled to disregard a no trespassing sign when attending to serve court process.

80 Each of the parties attempted to support their positions concerning the visibility of the stop sign by DVD recordings of conditions on entry to the property at the point of the second cattle grid.

81 The defendants’ record^xvi was made on 24 June 2009 at about 6:30 pm. On this occasion the first defendant drove the utility that he had driven on 12 October 2008. He said the windscreen and headlights were clean. The second defendant held a video camera while the first defendant drove the vehicle with the headlights on high beam.

82 Their first attempt to record conditions failed because at the speed at which the first defendant travelled on 12 October 2008, 30 to 40 km/h, it was not possible to hold the camera steady. They therefore recorded conditions at a speed of 10 km/h.

83 The second defendant said he used a wide angled lens for the purpose of recording the approach to the second cattle grid. The defendants claimed that the stop sign was not visible at all in conditions of darkness.

84 On arriving at the second cattle grid the first defendant stopped and reversed. He turned the vehicle at an angle and drove to a point five metres from the stop sign. The sign was clearly visible from that position.

85 The plaintiffs made their recording^xvii on 1 May 2010. The part of the recording that dealt with conditions in darkness was made at 7:35 pm. They claimed that conditions on that night replicated the level of moonlight available on 12 October 2008. They adopted the same speed as the defendants, 10 km/h, on approaching the second cattle grid and switched the headlights to high beam. They claimed that the stop sign and the sign identifying the property were both clearly visible on this recording.

86 The first defendant agreed that it was possible to see these signs in the recording made by the plaintiffs but denied that it was possible to read their content.

87 The second defendant once more recorded conditions at the entry to the property on 4 November 2009 with illumination from moonlight at the level said to be present on 12 October 2008 and 1 May 2010. He noted that the light from the moon cast a shadow on the western side of the fence so that the stop sign was in shadow. He said the stop sign could not be seen through the open window of the vehicle when it was 30 to 40 metres from the grid.

The Cowra Guardian

88 The plaintiffs claimed that they also gave notice that any implied permission to enter the property was withdrawn when their letter^xviii to the Cowra Guardian was published on 28 June 2006. The relevant part of the letter read:

Unless the landowner or renter gives the Council express permission, no member of Council and its employees, can enter onto your land.

If you don’t give them permission or don’t invite them in and they enter your land – they are trespassing.

If they enter and you ask them to leave, they must leave or they are guilty of trespassing.

If you invite them and then want them to leave, they must leave or they are guilty of trespassing.

If you actually write to them and refuse them permission to investigate your property under this audit or any other reason, they cannot enter onto your property – at any stage, without court permission. And courts don’t give permission for things like this.

Just in case council doesn’t believe me – Plenty vs Dillon – High Court case no 5 1991 states – “But no public official, police constable or citizen has any right at common law to enter a dwelling house merely because he or she suspects that something is wrong.”

And my most favourite quote, which was valid in law in the 1800’s and still valid now – “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 my blow through it – the storm may enter – the rain may enter – but the King of England cannot enter – all his forces dare not cross the threshold of the ruined tenement.” So be it – unless he has justification by law.”

Now that sounds like an illegal living structure!!

Sorry, Council – a little bit of legal research wouldn’t go astray. Unless you are prepared to be sued for trespass.

89 On 5 July 2006 the Cowra Guardian published a letter from Mr Stuart Ogilvy, a solicitor, in which he pointed out that certain legislation enacted powers of entry under which councils might legally obtain access to property for the purpose of exercising their functions. At the time he wrote this letter Mr Ogilvy was employed by Garden & Montgomerie, the law firm in which the second defendant was a partner.

90 The plaintiffs responded to this letter as follows:

I read with interest Mr Ogilvy’s letter (Wed July 5 2006) re Council staff undertaking an audit of rural dwellings.

He gave excellent advice when he advised that each person consult a lawyer before refusing entry to council.

I note Mr Ogilvy does not say we are wrong, nor does he say clearly that the Council is right.

He also did not mention that his firm, Garden & Montgomerie, I believe is handling the tree nursery legalities on behalf of council.

Nor did he mention that council staff can ONLY enter premises under a “warrant”. Under no other means can they enter, lest it be trespass. Even the police will tell you that.

Council are not meant to dictate to us, they are there only to support our lawful rights and administer civil and social situations

Again I would suggest Council and its officers learn about our Fee Simple rights – because I can assure you, the people are learning about them.

91 The defendants denied having read this correspondence. The plaintiffs challenged this evidence, asserting that everyone living in the Cowra region read the Cowra Guardian.

92 The second plaintiff also relied on having seen the second defendant collect newspapers from the local newsagency between 6 and 6.30 am.

93 The second defendant denied that he was aware that a solicitor employed by his firm wrote to the Cowra Guardian in response to the plaintiffs’ letter.

Correspondence with Council

94 A further basis upon which it was alleged that the second defendant was aware that implied consent to enter the property was withdrawn was through a letter^xix sent by the plaintiffs to the Council dated 11 August 2008.

95 The letter of 11 August 2008 read:

In regard to the conversation we had last week, I mentioned there was a difference between a Law (referring to our land ownership) and a statute & legislation (referring to the Local govt [sic] Act 1993).

In the Local Government Act 1993, Council and their staff appear to have an unhindered right to enter property with or without the owner’s permission.

However, the High Court – who are the final arbiters of law through the Australian Constitution have very clearly defined that not even a policeman can enter private property without either permission or a legitimate Warrant and Affidavit of Fact. To do so attracts legal action against the police themselves.

If the police cannot enter without permission or a warrant, then what makes councils think they can?

The warrant itself must come under the Criminal Code 1901, and that document does not list any infringement of land ownership – outside of theft – as a criminal action constituting the construction of a warrant.

So if councils cannot use a warrant regarding any action of private land and cannot enter without permission or a warrant, then how do they think they can enter at all?

The only way can be if the land owner has given them permission to either enter or to govern in some manner over that ownership. And that can only come through a contractual agreement – either through rates, through a Building & Development Application or something similar.

96 The letter then listed references to a number of High Court authorities.

97 The second defendant denied having been provided with a copy of this letter or a copy of Council’s reply of 13 August 2008 when he was handed Council’s file for the purpose of instituting proceedings for recovery of the outstanding rates. The documents^xx he said he received when he was instructed by Council’s Revenue Officer to institute those proceedings were exhibited to his affidavit.

98 A subpoena issued to Council sought production of documents, including:

3. Council’s file and all communications between the Council and its officers and Mr Geoffrey Casey of or concerning the recovery of rates against the plaintiffs.

99 In response Council produced a file that contained documents identical to those exhibited to the second defendant’s affidavit as well as the plaintiffs’ letter of 11 August 2008 and Council’s reply.

100 The second defendant was cross examined concerning his failure to produce this letter, the suggestion being that he deliberately withheld it because it questioned the right of Council officers to enter upon the property as a matter of right rather than with the plaintiffs’ permission.

101 He was pointed to various parts of other letters written by the plaintiffs to Council that asserted rights that attached to title to the property in fee simple with reference to entry by unauthorised persons and rights to exclude trespassers.

102 The second defendant maintained that he first sighted the letter of 11 August 2008 when the hearing of the proceedings initially commenced in April 2010. He denied that it was given to him prior to this date.

103 He also denied that, had he seen it, he would have not instructed the first defendant to effect service personally on the plaintiffs.

104 It was put to the second defendant that:

You know don’t you that this correspondence makes it absolutely clear that Mr and Mrs Maynes take every available objection to them to the council, its officers or anybody else entering upon their land, except with their express permission? ^xxi

105 The second defendant denied this proposition. He also denied that he failed to produce the letter because he did not wish to disclose that he received express notice to that effect in the material provided to him by Council.

106 The plaintiffs did not suggest that the first defendant was aware of this correspondence or that it alerted him to the requirement for express permission to enter the property.

Issue 1 - Determination

Signage

107 There was only one sign of relevance to the plaintiffs claim that the first defendant was aware that implied consent to enter the property was withdrawn. This was the sign on the fence adjacent to the second cattle grid at the southern boundary of the property.

108 I was not satisfied that this sign was adequate to alert the first defendant to the prospect that he would trespass if he entered the property.

109 The sign was positioned too far from the cattle grid to be visible at a time when the first defendant, travelling at a reasonable speed of 30 to 40 km/h, approached the second cattle grid.

110 Further, at that point, it was necessary that he focus on negotiating the narrow section of Bullfrog Road as it crossed the grid.

111 The sign was not illuminated. No other means, such as the use of reflective paint, was adopted to increase its visibility in darkness.

112 Even if the sign itself was visible, aside from the word STOP, the font was of insufficient size to communicate the content of the balance of the sign and thus to suggest that it was of relevance to a driver using Bullfrog Road rather than one wishing to use the double gates adjacent to which the sign was positioned.

113 I find therefore that this sign was ineffective to communicate to the first defendant that implied consent to enter the property was withdrawn.

The Cowra Guardian

114 I did not accept that the letters to the Cowra Guardian, even if the defendants read them, did more than state the plaintiffs’ view of the rights of property owners to resist entry by Council officers. The letters did not state that the plaintiffs withdrew, from Council or any other person, the implied right of entry on to their property.

115 Further, the plaintiffs could rely only on their assumptions that the defendants read those letters. I did not accept that their evidence that the Cowra Guardian was the newspaper of choice in the Cowra District and that the second defendant was seen at the newsagency in Cowra in the early morning was sufficient to prove that the letters came to his attention.

116 I accepted that his evidence that he was unaware that his employed solicitor, Mr Ogilvy, responded to the first of the letters, was unusual but I did not consider it to be improbable. He was not questioned concerning the extent to which he was responsible for the supervision of Mr Ogilvy and no evidence was called from Mr Ogilvy himself. In the circumstances, I was not prepared to accept that he lied to the court in denying knowledge of Mr Ogilvy’s conduct.

Correspondence

117 I agreed with the second defendant that the plaintiffs’ letter of 11 August 2008 did not have the effect of making it clear that they took objection to entry by any person on their land, including Council and its officers, without their express permission. The letter set out the plaintiffs’ view of the law relating to Council’s powers of entry. It did not go as far as giving notice that express permission was required by any person to enter the property.

118 Again, I was not prepared to accept that the second defendant lied in his evidence concerning his receipt of the letter of 11 August 2008. The Council’s response to the subpoena merely stated that it produced Copy of correspondence provided to Mr Geoffrey Casey^xxii. It did not indicate when the letter was given to the second defendant. It was submitted by the plaintiffs that I should draw an inference from the absence of some response from the second defendant by way of affidavit or by calling an officer of Council to establish when the letter was provided. I did not consider that this was a matter for the second defendant. It was the plaintiffs’ assertion that the second defendant received the letter of 11 August 2008 before he instructed the first defendant to attend to personal service of the Local Court summons. The onus was therefore on the plaintiffs to establish that fact. Until there was prima facie evidence of that fact, there was nothing to which the second defendant was required to respond.

ISSUE 2 - The Road Reserve

119 The claim for breach of privacy was based upon the conduct of the defendants in viewing the plaintiffs’ property from Bullfrog Road. The claim for trespass on dates other than 10 October 2008 was based the plaintiffs’ claim to have exclusive possession of Bullfrog Road through a leasehold arrangement entered into between them and Council.

120 The road reserve within which Bullfrog Road was constructed was, for most of its length, 20 metres wide. There was a short section of the reserve extending from the intersection with Reg Hailstone Way to the second cattle grid that was irregular in shape. Within the road reserve was a formed road about four metres wide, sealed for a short section at the intersection with Reg Hailstone Way but otherwise the surface was gravel. The road reserve from the point of the second cattle grid was not fenced on its boundary with the property.

121 The first plaintiff said that he paid for and built the cattle grid and gate leading to the property from Reg Hailstone Way. He said maintenance of Bullfrog Road was generally undertaken by Council with occasional assistance from a neighbouring property owner. He did not claim that the plaintiffs undertook any maintenance work on the road.

122 The plaintiffs claimed to occupy the whole of the road reserve through a lease arrangement with Council that entitled them to graze stock within the area of the road reserve and allow stock to wander over the formed part of Bullfrog Road. Copies of invoices^xxiii issued by Council were produced in which the plaintiffs were billed for Rent of Dedicated Road.

123 There was no formal lease agreement between Council and the plaintiffs. The Council provided details of the lease arrangement in a letter^xxiv dated 13 May 2010. Those details confirmed that, pursuant to s 153(1) of the Roads Act 1993, Bullfrog Road was leased to the plaintiffs where it adjoined Lots 50, 52, Part Lot 63, Lots 9 and 10, in Deposited Plan 750363, this being the title to the property. The Council stated that there were no documented conditions of the lease and that the anticipated use of the leasehold land was grazing of livestock.

124 The defendants argued that the drawing^xxv attached to the rental invoices indicated that the leased area did not include that part of Bullfrog Road extending from the second grid to the access road that was south of the boundary with Lot 50. There was ambiguity between the documents concerning this part of the road. I did not consider this ambiguity to be significant or relevant to my decision on this part of the claim.

125 The plaintiffs’ claims in respect of this area expanded as the hearing proceeded. They initially accepted that they could not exclude persons from using the formed area of Bullfrog Road. This was one of the reasons they put forward for positioning the stop sign at the double gates rather than at the grid. Through their submissions they claimed that they were in possession of the whole of the road reserve and that unauthorised entry on to any part of it, including the formed part of Bullfrog road, constituted a trespass.

126 The reason for this change in position was clearly that they appreciated that they could not make out their claim that the defendants left the formed part of the road. Both defendants gave clear evidence denying that they did so. Further, the plaintiffs were not in a position from 500 to 600 metres away to state with certainty that the defendants left the formed section of Bullfrog Road.

127 The plaintiffs’ arguments concerning their title to the Bullfrog Road was confused and difficult to follow. The deposited plans in evidence made it clear that title in fee simple to the 20 metre wide area of road reserve was vested in Council^xxvi.

128 S 153(1) of the Roads Act 1993 provided for short term leases of unused public roads and authorised Council to lease land comprising a public road if in its opinion the road is not being used by the public.

129 It was apparent that at least the formed part of Bullfrog Road was used by the public. It provided access to a number of properties in addition to that owned by the plaintiffs. The plaintiffs themselves acknowledged that they had no exclusive use rights to this part of the road reserve.

130 It was argued that, after the reserve was leased to the plaintiffs, they had exclusive possession of the reserve and public rights of access over the formed road were preserved by some form of easement in gross or right of way. The terms of the easement/right of way were said to be those appearing in s 5 of the Roads Act providing:

(1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road.

…

(2) The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

131 The plaintiffs argued that this provision allowed persons to travel on the road by vehicle or on foot but not to interrupt their passage over the road by stopping. If they stopped, they were trespassing on the plaintiffs’ rights.

Issue 2 - Determination

132 There were a number of reasons why I rejected this part of the plaintiffs’ claim.

133 It was not pleaded that the defendants trespassed when they were on Bullfrog Road. In Thompson v Vincent^xxvii Justice Handley noted:

The appellants had never pleaded that any entry by the police during this early period of the afternoon constituted a trespass. … This alone disposes of the present issue.

134 Not only did they not plead trespass in respect of this part of Bullfrog Road, the second plaintiff said that they did not intend to restrict access to Bullfrog Road^xxviii.

135 I did not accept that the rights of passage over public roads provided for by the Roads Act or the common law restricted the use of public roads in the manner contended by the plaintiffs. If their proposition were accepted, it would not be possible to stop either while driving or walking for any reason. Members of the public would not be permitted to park or stop to rest and would be required to maintain a condition of perpetual motion until they reached their destinations.

136 The only sign of relevance was that placed on the fence at the southern boundary of the property. It referred only to property owned under a Grant in Fee Simple Title. It made no reference to leasehold title or to the road reserve. There was no evidence that the defendants were otherwise notified that the plaintiffs claimed leasehold title or right of occupation of Bullfrog Road or that they imposed any restriction on access to it.

ISSUE 3 – Trespass on the property

137 The plaintiffs relied on a number of decisions^xxix of the High Court and the Court of Appeal of NSW in support of their claims in trespass. I accepted that those authorities established that entry into property without the permission of the occupant was prima facie an act of trespass. Those authorities also made it clear that the property owner’s permission could be expressly or impliedly given.

138 The plaintiffs placed considerable reliance on a proposition, that I did not accept, that Plenty was authority for their assertion that a process server might not enter the driveway or footpath to a property without the express permission of the occupier.

139 In Halliday the majority of the High Court dealt specifically with the path or driveway to a private dwelling in the following terms:

The path or driveway is, in such circumstances, held out by the occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passer-by may go for a legitimate purpose that in itself involves no interference with the occupier’s possession no injury to the occupier, his or her guests or his, her or their property. ^xxx

140 They went on to consider the situation of a police officer in circumstances where the driveway in question was not closed off by a locked gate and there was no notice or other indication that intrusion on the driveway was forbidden. In those circumstances, they said, there was, as a matter of law, an implied licence from the occupier to go onto the driveway and the question was whether that licence extended to a police officer who entered a property to question or arrest a person seen to commit an offence on the public street adjacent to the driveway. They said:

The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that the question be answered in the affirmative.

…

… in the absence of any indication to the contrary, the implied or tacit licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it. ^xxxi

141 In Plenty the evidence established that the plaintiff expressly revoked any implied consent given to the police to enter upon his farm in order to serve a summons or any other document relating to court proceedings. The issue therefore was whether a police officer, charged with the duty of serving a summons, was authorised, without the consent of the person in lawful occupation and without implied leave or licence, to go onto the land to serve the summons. The High Court’s response was that statutes that prescribed the way in which summonses might be served conferred no power on a person to do a thing that the person was not free at common law to do. Gaudron and McHugh JJ referred to a general rule at common law that:

… a person is a trespasser unless that person enters premises with the consent, express or implied, of the occupier. ^xxxii

142 Thompson again involved the entry of police officers onto the plaintiff’s property. The Court of Appeal noted that it was reminded that any unlicensed entry on the property of another was trespass and that mistake was no defence. In this case, however, they noted that the premises were not enclosed by a fence and gate and that:

… a Private Property sign would have warned entrants that they were not in a public place, but would not have negated the usual licence to approach and knock at the doors of the commercial or residential buildings. ^xxxiii

143 In Ibbett police officers went further than the path or driveway and entered the plaintiff’s dwelling house, one by diving under a closing roller door, the other after the plaintiff opened the door at gunpoint to allow him to enter. The trial judge’s findings that their entry was unlawful and amounted to a trespass were not challenged.

144 Kuru involved the construction and application of provisions of the Crimes Act 1900 (NSW) concerning police powers to enter and remain in a dwelling house after allegations of domestic violence were made. The Act required that an occupant of the house issue an invitation to police that allowed them to enter and remain within the house. The question was whether the invitation was withdrawn and if so, whether police officers left the premises within a reasonable time after they were told to leave.

145 Having concluded that after they were told to leave the police officers had no statutory justification for remaining on the premises, the majority of the High Court considered the question of whether there was common law justification. They referred to important propositions that had been dealt with in Plenty as follows:

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 or by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition; that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. ^xxxiv

146 They noted that in Halliday, the High 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. ^xxxv

147 The plaintiff’s in their correspondence with Council relied on these authorities as establishing that police required express consent to enter premises. They argued that, if police had no implied right to enter property, the Council or anyone performing the functions of the Council could be in no better position.

148 In expressing those views, the plaintiffs appeared not to appreciate that the common law right to enter property under implied consent extended, unless expressly forbidden by statute, to police or any other official or member of the public provided their business was legitimate.

149 Having reached the conclusion that neither defendant was aware that implied consent to enter the property was withdrawn, and in the absence of evidence that the first defendant’s business was not legitimate, I find that there was no trespass by the first defendant when he entered the property on 12 October 2008.

150 There was no dispute that the first defendant’s authority to remain on the property was withdrawn and that he was directed to leave. The issue was whether he left the property within a reasonable time after that direction was given.

151 On this aspect it was necessary to consider which of the versions of the events of evening was to be accepted.

152 A number of propositions were put to the first defendant to suggest that he was not a person of good character and therefore that his evidence should not be accepted. He denied that he drove at speed or erratically on his approach to the property. No evidence was called to rebut his denials that he had a reputation for driving at speed, that he consumed alcohol prior to driving to the property or that he had a reputation for drinking alcohol to excess and had been involved in incidents at hotels in Cowra as a consequence.

153 It was put to the first defendant that he was directed by the second defendant or that on his own initiative he elected to serve the plaintiffs at 9:30 pm on a Sunday as a means of disturbing or humiliating them. He said the date and time of service was a matter of his own choosing and was based on his experience that this was a time and day when he was likely to find occupiers of rural properties at home.

154 Other matters put forward by the plaintiffs as affecting the first defendant’s credit were:

1 His evidence that the neighbour told him that there were three mail boxes on Bullfrog Road, when in fact two mail boxes were at the intersection with Reg Hailstone Way. The first defendant acknowledged his handwritten note about the position of the mail boxes was incorrect. He insisted that the information concerning the mail boxes was provided by the neighbour.

2 It was argued that he acted unprofessionally both in the selection of the time and day of service and in placing handwritten notes on the documents that were served. His explanation for the selection of 9:30 pm on a Sunday has already been referred to. He acknowledged that it was inappropriate to write on court documents.

3 It was claimed that there was inconsistency between the first defendant’s evidence in cross examination and his affidavit and the handwritten notes that he made on 13 October 2008. The inconsistency was said to be his accepting that initially the first plaintiff met him alone. I did not consider that there was any inconsistency. The handwritten notes and the affidavit both recorded that on arrival at the property he saw a male person walk towards his utility and that he introduced himself and shook hands with the first plaintiff. Both documents recorded that he saw the second plaintiff inside the house in the kitchen.

4 The first defendant conceded in cross examination that, had he seen the Stop sign, he would have nevertheless proceeded with the service of the court documents on the plaintiffs. His evidence, in fact, was that he would have attempted the service of the documents ^xxxvi . He was not asked to explain what he meant by the word attempt. The plaintiffs submitted that this concession indicated that the first defendant was a person likely to disregard a sign and therefore his evidence that he did not see the sign should not be accepted. I did not agree that this proposition followed from the words used by the first defendant.

5 It was submitted that I should not accept the first defendant’s handwritten notes made on 13 October 2008 as an accurate contemporaneous record because they were prepared in company with the second defendant who had authorised the illegal entry upon private land ^xxxvii and because they were prepared to cover the first defendant in the event of a claim for trespass. The first defendant conceded that the notes were prepared in response to the plaintiffs’ statement that they would sue him. There was no evidence to suggest that the second defendant authorised entry to the plaintiffs’ land that was illegal or that there was collusion between the defendants concerning the content of the notes. I was not prepared to disregard the notes in deciding the issues in the case.

155 I did not consider that these matters were of sufficient significance to the issues in the matter to warrant a finding that the first defendant’s evidence should be rejected.

156 There were a number of aspects of concern arising out of the evidence of the plaintiffs, particularly that of the second plaintiff.

157 The second plaintiff’s denial in cross examination that she heard anything that was said by the first defendant to the first plaintiff upon his arrival at the property on 12 October 2008 was repeated on a number of occasions and was absolute. She said:

Mr Trebeck, I stated I would tell the truth. I had no conversation with Mr Sam Casey nor did I hear any conversation with him. The dogs were barking. I could hear nothing. ^xxxviii

158 When the discrepancy in her evidence was drawn to her attention, the second plaintiff responded:

Q. Can you explain to her Honour why it is that when I asked you, I think three times but at least twice whether or not you could hear anything distinctly that Mr Sam Casey said and you said you couldn’t, that you didn’t give the evidence in paragraph 68?

A. I can explain it in that the swearing offended me very greatly. I have tried not to think about it. I’ve tried not to remember it. I could not hear Mr Casey make any conversation as such, and I have tried to overlook the swearing. ^xxxix

159 The second plaintiff said she suppressed her memory of the parts of the conversation that allegedly offended her and that she continued to be unable to remember them notwithstanding that she read her affidavit evidence a number of times in preparation for the hearing.

160 This explanation was implausible and I considered it to be untrue. The result was that I could not rely on that part of the second plaintiff’s affidavit evidence that purported to corroborate the evidence of the first plaintiff concerning the interchange between him and the first defendant.

161 On the day after the summonses were served the second plaintiff prepared a letter^xl to Council to which she attached a number of documents. She made no complaint in this letter about trespass on the part of the first defendant, breach of privacy or the absence of authority to enter the property. She said the purpose of the letter was to find out why she and the first plaintiff had been targeted^xli. She said it was absolutely false^xlii to suggest that she did not raise these matters because at that date she did not consider any trespass and breach of privacy had taken place. She said they were not relevant to her dealings with Council.

162 There was some support for this part of second plaintiff’s evidence in the invoice^xliii that the plaintiffs prepared and forwarded to the first defendant on 25 October 2008. In that document they referred to a number of matters, including trespass, dangerous driving, breaking the peace, abusive language and breach of privacy. They made no reference in this document to assault.

163 The first defendant’s evidence was consistent with the contemporaneous handwritten notes. The second plaintiff said that she and the first plaintiff made notes of what occurred on 12 October 2008 but they were not in evidence. The suggestion that an inference should be drawn against the defendants because they did not call for or seek to put these notes into evidence was an attempt by the plaintiffs to reverse the onus of proof.

164 The first defendant conceded that he swore when he was leaving the property. This was a regrettable lapse on his part but it did not lead me to accept that he used the gratuitous abusive language complained of by the plaintiffs. He went to their property to perform a service for which he was to be paid. It would have been contrary to his commercial interests if, without provocation, he resorted to language of the kind and to the extent reported by the plaintiffs.

165 The second plaintiff’s affidavit contained statements as to the position of the sign that were obviously not true. She acknowledged this in cross examination.

166 There were ample materials before the Court that indicated, notwithstanding their denials, the plaintiffs had a propensity to make serious, unsubstantiated and extravagant allegations of misconduct both against the defendants and Council and its officers.

167 Their letter^xliv to Council of 10 September 2008 contained a threat to treat as harassment further rating accounts unless an extensive list of questions was answered. A letter^xlv of 18 September 2008 referred to a potentially fraudulent matter, asked for details of Name, address, telephone number of their public liability/hazard & malpractice bonding company, and stated that failure to provide the information sought would constitute corporate and limited liability insurance fraud.

168 The invoice addressed to the first defendant claimed a total of $19,500 for acts allegedly undertaken on 12 October 2008. The invoice demanded payment within seven days and referred to a Self-Executing Penalty. Asked about this invoice, the first plaintiff said that he believed the first defendant trespassed on his property and since it was private property he considered that he had a right, similar to that exercised by police officers when imposing speeding fines, to issue the invoice as a form of penalty notice.

169 The plaintiffs filed a Conditional Notice of Intention to Defend^xlvi in the Local Court on 7 November 2008. They renounced their connections with unnamed entities in relation to their proprietary rights to the property. The entities were said to include bodies and departments of the Commonwealth of Australia registered with the US Securities & Exchange Commission. An address for the Australian Embassy in Washington, DC, was given. It was claimed that threats had been made to steal the plaintiffs’ property and that their stock and livelihood had been placed in jeopardy. Allegations of fraud and perjury were made against Council’s General Manager. Allegations of false statement and perjury were made against the second defendant. Allegations of conflicts of interest were made against Council, the second defendant and the Local Court.

Issue 3 - Determination

170 On the matter of the legitimacy of the first defendant’s business, the plaintiffs claimed that the way in which the second defendant undertook his instructions to recover the debt owing to Council was heavy handed and in some way motivated by Council’s wish to target the plaintiffs because of their views concerning its power to levy rates on their property.

171 Even if the claims that the second defendant was in some way heavy handed in implementing the instructions received from Council were to be accepted, I did not accept that they affected the legitimacy of the business that the first defendant undertook when he attended at the property on 12 October 2008.

172 I did not, however, accept the claim that the second defendant acted illegitimately in implementing Council’s instructions. The second defendant was instructed to act for Council in the recovery of a relatively modest sum of money. The plaintiffs informed Council that they did not intend to pay the rates levied against the property until they received satisfactory answers to questions raised concerning the legitimacy of the rate levy. They continued to demand answers to an increasing number of questions, notwithstanding the Council’s response^xlvii of 7 February 2008 dealing with questions concerning its power to levy rates and pointing out that unpaid rates were recoverable as a debt. On 1 April 2008 Council advised^xlviii the plaintiffs that it would not enter into further correspondence with them on the matter of their obligation to pay the rates levied.

173 Having regard to this correspondence, I did not regard as inappropriate or illegitimate the second defendant’s performance of his instructions by proceeding with the issue of Local Court summonses to recover the outstanding rates.

174 The only other possible attack on the legitimacy of the business conducted by the first defendant in the service of the statement claim related to the day and time of service. It might well have been inconvenient and unexpected that a process server would arrive at a rural property at 9:30 pm on a Sunday but I was pointed to no statute or common law principle that rendered such conduct illegal.

175 I concluded that the positioning of the Stop sign was such that it was inadequate to inform the first defendant on 12 October 2008 that implied consent to enter the property was withdrawn.

176 The decisions of Plenty, Ibbett and Kuru all depended upon the acceptance of evidence that the conduct of police went beyond that permitted by implied consent or that implied consent was withdrawn.

177 In my view, the plaintiffs in this case were in error in seeking to apply to their domestic situation the special concern the High Court has consistently expressed of ensuring that members of the public are protected from oppressive conduct of law enforcement officers. I did not consider that a process server attending a property for the purpose of service of court documents came within this category.

178 I find that there was no trespass by the second defendant on 12 October 2008. I find that there was no trespass by the first defendant in driving onto the access road up to the plaintiffs’ house paddock.

179 Taking into account the features of the evidence that I summarised, I concluded that I could not rely upon the uncorroborated evidence of the first plaintiff concerning the interchange with the first defendant. I preferred the evidence of the first defendant to that of the plaintiffs concerning that interchange.

180 It was apparent from the evidence of both the first defendant and the plaintiffs that some conversation followed the direction that he leave the property in the course of which the first defendant was asked about his purpose and the nature of his insurance cover.

181 I was not therefore satisfied that, although he did not leave the property immediately his authority to be there was withdrawn, he remained on the property for longer than was reasonably practicable.

ISSUE 4 - Assault

182 It was submitted for the plaintiffs that I should accept that an assault occurred because the first plaintiff was not cross examined on his evidence that he retreated backwards when he felt that the first defendant would make contact with him.

183 They claimed that in the absence of cross examination, the evidence was not contradicted. This was not so. The first defendant denied any aggression on his behalf and he denied, without contradiction by either plaintiff, that he came no closer to the first plaintiff than a distance of two metres.

184 I accepted the submissions of the defendants that, in any event, this evidence did not establish that the first defendant intentionally created the apprehension in the first plaintiff that he intended to commit an act of violence that involved physical contact with the first plaintiff.

185 Further, in accepting the evidence of the first defendant concerning the interchange that took place between him and the first plaintiff, I was not persuaded that he behaved with aggression or in any way that intentionally or otherwise indicated that he intended to assault the first plaintiff.

ISSUE 5 – Breach of Privacy

186 There were two issues arising from this part of the plaintiffs’ claim. The first was whether Australian law recognised an actionable right to privacy. The second was whether, if there was such a right, the defendants had offended the plaintiffs’ rights in that respect.

187 I was referred to two decisions in which claims of breach of privacy were upheld. In Grosse v Purvis^xlix Senior Judge Skoien in the District Court of Queensland, acknowledged that he was taking the first step in Australia in holding that there was an actionable right in an individual to privacy. He listed^l four essential elements to founding a claim:

1 A willed act by the defendant;

2 that intruded on the privacy or seclusion of the plaintiff;

3 in a manner that would be considered highly offensive to a reasonable person of ordinary sensibilities; and

4 that caused the plaintiff detriment in the form of mental, psychological or emotional harm or distress or that prevented or hindered the plaintiff from doing an act that he or she was lawfully entitled to do.

188 In the Victorian County Court Hampel CCJ in Doe v ABC & Ors^li awarded damages when the defendant published the plaintiff’s name and details of a sexual assault of which she was a victim.

189 However, both prior to and since these decisions the High Court, the NSW Court of Appeal and the Victorian Supreme Court of Appeal^lii have held that the law in Australia recognised no generalised tort of breach of privacy.

190 I considered myself bound by the decisions of these superiors courts, in particular by the statement of McColl JA in Hitchcock that:

Australian common law does not recognise a tort of privacy ^liii .

191 In any event, I did not consider that the conduct of the defendants in standing on a public road that overlooked the property amounted to a breach of privacy.

192 The circumstances that gave rise to the decisions in Grosse and Doe were very different to those of the current case. The first involved serious and sustained stalking by the defendant, the second the broadcasting of highly sensitive and personal information concerning the plaintiff to the public at large. I have already pointed out the limits on the right of recovery suggested by Senior Judge Skoien. I did not consider that the facts of this case met those requirements.

193 I rejected the suggestion that the conduct of the defendants was in some way wilful because they undertook investigation of the plaintiffs’ claims on their own behalf rather than through their solicitors. There is no rule that prevents parties to proceedings from conducting preliminary investigation into the matters alleged against them.

194 I accepted that the defendants went legitimately to Bullfrog Road, a public road, for the purpose of investigating the serious claims made against them by the plaintiffs. Their investigation necessarily involved inspection of the access road leading to the house paddock.

195 I did not consider their conduct in undertaking these investigations to be an undue or serious invasion of any right to privacy possessed by the plaintiffs or to be highly offensive to a reasonable person of ordinary sensibility.

ISSUE 6 – The second defendant’s responsibility for the conduct of the first defendant

196 This issue raised the questions of whether the second defendant directly instructed the first defendant as to the time and manner of service of the Local Court summonses or whether he was in some way vicariously liable for the conduct of the first defendant.

197 In his defence the second defendant admitted that the first defendant was his agent for the purpose of lawfully effecting service of the Local Court summons. The evidence established that the first defendant acted as an independent contractor to the second defendant’s law firm and as such, on the principles established in Leighton Contractors Pty Limited v Fox; Calliden Insurance Ltd v Fox^liv, the second defendant and his law firm were not liable for his tortious or otherwise unlawful conduct.

198 I have already decided that the evidence did not establish that the second defendant was aware of the signage at the property or of any other notification by the plaintiffs that implied authority to enter the property was withdrawn.

199 There was no evidence to support the claim that the second defendant instructed the first defendant as to when the court documents were to be served. Both defendants stated that this was a matter left to the discretion of the first defendant who gave cogent evidence of the basis upon which he selected the day and time at which to serve the summonses

200 In the circumstances there was no basis for a finding that the second defendant was either directly or vicariously liable for any finding made against the first defendant.

ISSUE 7 - Damages

201 The plaintiffs claimed that they suffered psychological injury in the nature of shock, mental distress, unresolved feelings of anger and disappointment and fear and apprehension as a result of the conduct of the defendants.

202 In support of these claims they relied on the report^lv of Ms Johnson, psychologist, of 12 March 2010. Ms Johnson reported that the events of 12 October 2008 as related to her by the plaintiffs, and the subsequent stalking of the plaintiffs, caused a degree of psychological impact. She said, however, that this was insufficient to warrant a diagnosis of any psychopathology.

203 In the absence of a diagnosis of a recognised psychological injury, this part of the claim must fail.

204 It was submitted, and I accepted, that a claim in trespass was compensable in damages regardless of proof of actual loss or damage. I was urged not to consider the incidents as trivial and I was urged to award both aggravated and exemplary damages.

205 Had I found that there were trespasses by the defendants, I would not have regarded those trespasses as warranting aggravated or exemplary damages. I came to this conclusion because I was not persuaded that there was malice or spite on the part of either defendant in the pursuit of instructions to recover rates owed to Council.

206 It was suggested to the second defendant that he was heavy handed in his approach to the recovery of those rates and that he ought to have issued a preliminary letter of demand before issuing process. I noted that on 2 September 2008 the Council wrote^lvi to the plaintiffs advising that if payment or satisfactory arrangements for payment were not made by 17 September 2008, it would commence its normal debt recovery proceedings. This was not the first letter in which Council informed the plaintiffs that it expected them to pay their rates. The response to these letters, including that of 2 September 2008, was a refusal to pay rates until the many detailed questions posed by the plaintiffs were answered.

207 In my view, it was unlikely that any letter of demand issued by the second defendant would result in a different response and the issue of the summonses without taking this further step was reasonable and warranted.

208 The second defendant was criticised for adopting the personal service as a method of delivering the Local Court summonses to the plaintiffs. It was pointed out that there were alternatives, including those of delivery by registered post. Personal service was and remained a legitimate and conclusive method of ensuring that process comes to the attention of the party to whom it was directed. I did not consider that the selection by the second defendant of this method of service indicated any malice on his part.

209 A number of submissions were made concerning the efficacy of service and therefore the validity of the judgments entered against the plaintiffs in the Local Court. These events occurred after 12 October 2008 and could not have been relevant to any malicious intent on the part of the defendants at that time.

210 The plaintiffs made no claim in the Local Court that service was not properly effected. Nor did they file a valid defence to the summonses. In the absence of challenge the objections raised in these proceedings could not have influenced the motivation of the second defendant in taking steps to enter and enforce judgment.

211 I therefore considered the issues concerning the conduct of the Local Court proceedings to be irrelevant to the question of whether awards of aggravated or exemplary damages were warranted.

212 Other criticisms were directed at the second defendant’s ongoing conduct of the recovery process. This conduct again followed the normal and legitimate process and, in my view, could not be regarded as an aggravation of any damage caused to the plaintiffs by reason of the claimed trespasses.

213 Had I accepted that both defendants were aware that express permission was required prior to the first defendant’s entry on to the property on 12 October 2008, I would have assessed damages in the sum of $20,000.

214 Had I accepted that the first defendant only was aware that express permission was required prior to the first defendant’s entry on to the property on 12 October 2008, I would have assessed damages in the sum of $10,000.

215 Had I accepted that the first defendant did not leave the property within a reasonable period after implied consent to enter was withdrawn, I would have assessed damaged in the sum of $5,000.

216 Had I accepted that the defendants’ presence on the road reserve, whether on the formed section or outside it, constituted a trespass on the plaintiffs’ leasehold title, I would have assessed damages in the sum of $1,000 for each instance.

217 The plaintiffs claimed to have incurred expense as a result of the conduct of the defendants. The only evidence to support their claim related to expenses incurred in the course of this litigation and therefore it would not have been allowed.

ISSUE 8 – Abuse of process

218 The defendants argued that the plaintiffs’ true purpose in bringing the proceedings against them was to promote their views concerning the powers of local government to levy rates against their property.

219 The plaintiffs clearly held strong views in this regard. However, they also held strong views concerning their rights as registered proprietors of the property in fee simple. I could not reach the conclusion therefore that these proceedings were directed solely to the rates issue.

220 The law does not lightly exclude parties from pursuing claims through the courts, even if those claims do not ultimately succeed.

221 I therefore did not consider that this was a case that could be classified as an abuse of process.

ORDERS

222 Verdict for the defendants.

223 The plaintiffs are to pay the defendants’ costs of the proceedings as assessed or agreed. This order is suspended for a period of 21 days to allow any party to list the matter within that period for further argument on the issue of costs.

224 Exhibits and affidavits will be retained for 28 days.

225 My reasons are published.

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Exhibit D, second defendant’s affidavit 25.6.09

First defendant’s affidavit, 25.6.09, p 4

Exhibit 3

Exhibit 3

First plaintiff’s affidavit 10.2.10, p 7

Second plaintiff’s affidavit, 10.2.10, pp 64, 65, 66, 68, 69, 71

Exhibits AI - AL, second defendant’s affidavit 25.6.09

Exhibit E, second defendant’s affidavit 11.3.10

Exhibit F, second defendant’s affidavit 11.3.10

Second plaintiff’s affidavit 10.2.10, p 114

Exhibit E

Part Exhibit H

Annexure D, second plaintiff’s affidavit 10.2.10

Annexure A, first plaintiff’s affidavit 10.2.10

Second plaintiff’s affidavit 10.2.10

Exhibit AP, second defendant’s affidavit 25.6.09

Annexure A, plaintiffs’ affidavit 16 May 2010

Part Exhibit 4

Part Exhibit M

Exhibit B, second defendant’s affidavit, 25.6.09

Transcript 342.33

Part Exhibit L

Exhibit D

Part Exhibit 7

Part Exhibit D

1993, s 145(3)

[2005] NSWCA 219 at [125]

Second plaintiff’s affidavit. 10.2.10, p 32

(1984) 155 CLR 1; Plenty v Dillon (1991) 171 CLR 635; NSW v Ibbett (2006) 229 CLR 638; Kuru v NSW (2008) 236 CLR 1; Thompson v Vincent [2005] NSWCA 219

at [6], [ 7]

at [7]

at [647]

at [123]

at [43]

at [45]

Transcript 265.11

Plaintiffs’ submissions in reply, p 3(c)

Transcript 173.2

Transcript 176.10

Part Exhibit H, second defendant’s affidavit 25.6.09

Transcript 179.11

Transcript 181.4

Exhibit J, second defendant’s affidavit 25.6.09

Exhibit B.27, second defendant’s affidavit 25.6.09

Exhibit H.146, second defendant’s affidavit 25.6.09

Exhibit M, second defendant’s affidavit 25.6.09

Exhibit B.35, second defendant’s affidavit 25.6.09

Exhibit B.32, second defendant’s affidavit 25.6.09

[2003] QDC 151

at [444]

[2007] VCC 281

(2001) 208 CLR 199; John Fairfax Publications Pty Limited v Hitchcock [2007] NSWCA 364; Giller v Procopets [2008] VSCA 236

at [123]

(2009) 240 CLR 1

Annexure A, affidavit of Margaret Johnson, 18.3.10

Exhibit H.141, second defendant’s affidavit 25.6.09

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