CITATION: Maynes & Ors v Casey & Ors [2010] NSWDC 285 HEARING DATE(S): 21 June 2010 to 25 June 2010
JUDGMENT DATE:
23 December 2010JURISDICTION: 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 1993CASES 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 219PARTIES: 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…
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- AGLC
- Maynes v Casey [2010] NSWDC 285
- Case
- [2010] NSWDC 285
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the defendants were notified of the withdrawal of the implied right of entry for lawful purposes, whether the first defendant remained on the plaintiffs’ property for an unreasonable period after notification, whether the entry on the public road dissecting the property amounted to trespass, whether the tort of privacy was recognised at common law, and whether the viewing of the plaintiffs’ property from the public road for the purpose of gathering evidence was a breach of privacy. The court was also required to determine whether the first defendant was vicariously liable for the second defendant’s conduct and whether there was evidence to support the claim of psychological injury.
The court found that the plaintiffs did not provide sufficient evidence to support their claims. The court held that the first defendant was not notified of the withdrawal of the implied right of entry for lawful purposes and that the first defendant did not remain on the plaintiffs’ property for an unreasonable period after notification. The court also held that the entry on the public road dissecting the property did not amount to trespass. The court further held that the tort of privacy was not recognised at common law and that the viewing of the plaintiffs’ property from the public road for the purpose of gathering evidence was not a breach of privacy. The court also held that the first defendant was not vicariously liable for the second defendant’s conduct and that there was no evidence to support the claim of psychological injury.
The court ordered that the verdict be in favour of the defendants. The court further ordered that the plaintiffs were to pay the defendants’ costs of the proceedings as assessed or agreed. This order was 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. The court also ordered that exhibits and affidavits be retained for 28 days. The court’s reasons were published.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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