Trespass—Access to premises for service of summons—Whether common law right to enter—Statute permitting service of summons personally or by leaving at usual place of abode or business—Whether implied power to enter—Damages—Justices Act 1921-1975 (S.A.), s.27.
Decisions
MASON C.J., BRENNAN AND TOOHEY JJ. Mr Plenty is the owner and occupier of a small farm at Napperby near Port Pirie, South Australia. He and Mrs Plenty are the parents of a girl who, at the time of the events giving rise to the present litigation, was aged 14 years. An allegation was made in July 1978 that the child had committed an offence and, pursuant to ss.8 and 15 of the Juvenile Courts Act 1971-1975 (S.A.), a complaint was laid against the child alleging that she was in need of care and control. That is the procedure which the Juvenile Courts Act prescribes for dealing with a child against whom an allegation of an offence is made. When such a complaint is laid a justice is authorized to issue a summons to the child to appear before a Juvenile Court: s.61. A justice issued a summons to the child to appear. The service of that summons was governed by s.27 of the Justices Act 1921-1975 (S.A.). Section 27 (as it then stood) provided:
" Subject to the provisions of this or any other enactment specially applicable to the particular case, any summons or notice required or authorized by this Act to be served upon any person may be served upon such person by - (a) delivering the same to him personally; or (b) leaving the same for him at his last or most usual place of abode or of business with some other person, apparently an inmate thereof or employed thereat, and apparently not less than sixteen years of age:
Provided that any court or justice before whom the matter comes may refuse to act upon any non-personal service as aforesaid, and may require the summons or notice to be re-served, if it or he is of opinion that there is a reasonable probability - I. that the summons or notice has not come to the knowledge of the person so served; and
II. that such person would have complied with or acted upon such summons or notice if it had come to his knowledge."
2. On 6 and 31 October 1978 the police attempted to serve the summons on the child. On the latter occasion the police effected non-personal service of the summons by leaving it with her father. The child did not appear. Instead of ordering reservice of the summons, the magistrate ordered that a fresh summons be issued. In addition, notices were issued to Mr and Mrs Plenty, pursuant to s.29 of the Juvenile Courts Act, ordering them to attend at the hearing of the complaint against their child.
3. Constable Dillon, accompanied by Constable…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Plenty v Dillon [1991] HCA 5
Case
[1991] HCA 5
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal from the Supreme Court of South Australia in a dispute between a landowner, Mr. Plenty, and a police officer, Detective Sergeant Dillon. The core of the disagreement concerned the legality of the police officer's entry onto Mr. Plenty's property without a warrant to serve a summons. Mr. Plenty had sought a declaration that the entry was unlawful and an injunction to restrain further trespass.
The central legal question before the High Court was whether a police officer, in the absence of a warrant or statutory authority, possessed an implied licence to enter private property for the purpose of serving a summons. This involved an examination of the common law rights of landowners to exclude others from their property and the extent to which those rights could be overridden by the duties of law enforcement.
The Court held that the common law does not grant police an implied licence to enter private property to serve a summons. The right of a landowner to privacy and to exclude others from their property is a fundamental common law right. While police have a duty to enforce the law, this duty does not, at common law, extend to authorising trespass for the purpose of serving civil process. The Court distinguished this situation from circumstances where police might enter to prevent a crime or arrest a suspect, which are grounded in different legal principles.
Consequently, the High Court found that Detective Sergeant Dillon's entry onto Mr. Plenty's property was unlawful. The appeal was dismissed, upholding the Supreme Court of South Australia's finding that the entry constituted a trespass.