Plenty v Dillon

[1990] HCATrans 179

A',r	\, '
-!.) 1	AUSTRALIA,ic-

-'.}).))>}=)~-«.«(-,'--'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A38 of 1989

B e t w e e n -

SYDNEY GRAHAM PLENTY

Appellant

and

MICHAEL KENNETH DILLON

First Respondent

ROBYN ANN WILL

Second Respondent

ROBERT RAYMOND JENNINGS

Third Respondent

THE STATE OF SOUTH AUSTRALIA

Fourth Respondent

MASON CJ

BRENNAN J

Plenty(8) 48 21/8/90

TOOHEY J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDING

AT ADELAIDE ON TUESDAY, 21 AUGUST 1990, AT 10.00 AM

(Continued from 20/8/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Solicitor.

MR DOYLE:  If the Court please, if I could just add a little

to the answer I gave to Justice Brennan yesterday in

relation to section 27 and the power to serve

non-personally, my main point in answer to

Your Honour was that when seen in its historical

context it should be seen as the original provision
for service personally and then the added facility

of non-personal service and that that should not be

seen as taking away, that is, the added facility as

taking away any power or right that went with the

right to serve personally but could I also add just

in case it is overlooked, our other submission that

in any event, non-personal service should not be

thought of as something that obviates the need to go

on land because even to serve non-personally, unless

the door to the place of abode is right on the

boundary, it will still be necessary to enter the

land and knock on the door so the provision of

non-personal service is a facility which, in our

submission, goes rather to the need to make contact

with the relevant person rather than the need to go

on the land.

Also, yesterday, Your Honours, in answer to Justice McHugh, I endeavoured to avoid agreeing

that the expression "execution of process" did not

readily fit the serving of a summons and while I

still do not concede that it never can embrace

service of a summons, I accept that generally when

one sees the expression "execution of process" it

is a reference to compulsive process against
personal goods but I should have made the point

that our primary submission in this area is not so

much that the service of a summons is the execution

of process but that the relevant proceedings here

are proceedings to which the King is a party and

that, in that context, one can more readily infer

that the service of a summons would carry with it

the right to go on land so,•with reference to

Semayne's case, we are endeavouring to bring it

within the rubric proceedings to which the King is

a party rather than of necessity within the
particular specification execution of process in

proceedings in which the King is a party.

Your Honours, could I just clear up that other

point I made about Semayne's case and its clear

limitation in relation to the breaking of doors to

the actual dwelling. If I could go back to

Semayne's case for a moment, which is number three

in our book of materials, and I made the primary

point yesterday that it is concerned with breaking

of doors, not with mere entry on land, but at

page 195 of the English Reports, the second page of

the photocopy, Your Honours will see towards the

Plenty(8) 49 21/8/90

bottom of the page a footnote in the judgment with

(C) as the footnote; it is the very last line of
the judgment on that page. That footnote begins on

the bottom of the page and, first of all, on the

point I have just been making the commentator makes

the point there that:

The distinction -

is -

between those cases in which the King -

is a party -

and those in which a common person is party -

the distinction I have just been adverting to.

Then, over the page at page 196, Your Honours,

where the footnote continues, about the last four

lines of the footnote, talking of the privilege

which the person has against the breaking of doors:

And this privilege is confined to a man's

dwelling house, or out-house adjoining

thereto, for the sheriff on a fieri facias may

break open the door of a barn standing at a

distance from the dwelling-house, without

requesting the owner to open the door, in the

same manner as he may enter a close -

which I take to be a reference to the land, so it

is clear, in our submission, that this principle

stated in Semayne's case is confined to the door of
a dwelling and does not extend to other buildings

or to land and I simply provide to the Court a copy

of the case referred to there, Penton v Brown,

which does not take it any further but is the case

cited by the commentator.

So, Your Honours, on that part of the case,

our submission is that it would make sense to

conclude that, bearing in mind that the summons had

to be served personally, at common law there would

have been recognised a right to make entry on the

land when the summons was served in proceedings to

which the King was a party and, in our submission,

it would be surprising if that right of entry

depended on permission or the implied permission of

the owner and all the more surprising that one does

not find anywhere in the numerous texts dealing with the position of a sheriff some reminder or cautionary note that when that permission is

lacking he may not enter to serve a summons.	So,
that is our primary submission, Your Honours.

Plenty(8) 50 21/8/90

We would also submit that it would be odd if a

person wishing to serve a summons had less powers

or rights than are given to a bailiff executing

civil process and, at least - - -

McHUGH J: 

Why, Mr Solicitor, because when one is executing

process, there has already been a judgment of the
court but, when you are serving a summons there is

no more than an assertion or a claim?

MR DOYLE: True, Your Honour, but in our submission, with

respect, that overlooks the historical

significance of the summons which, if the Court

accepts our submissions yesterday, is that the

proceedings cannot go ahead - assuming the man has

not been arrested and, as it were dragged before

the court -unless the summons has been served or -

which will cure the irregularity - the person

clearly has or is shown to have actual notice of

the proceedings and so, while the summons can be

said to be merely giving notice of proceedings, it

is first of all notice of proceedings to which the

King is a party and the King's role seems to have

been significant historically for understandable reasons and, secondly, it is something which the

common law treated as indispensable to the further

progress of the proceedings and so, in our

submission, it does not lose its significance

merely because it is notice of a claim rather than

a step to enforce an actual judgment.

MR TOOHEY: 

Mr Solicitor, are there any decisions dealing

with the service of subpoenaes in this sort of
context, because that does not involve the
enforcement of a judgment but ordinarily would

require personal service on the person to be called

as a witness.

MR DOYLE:  Yes. I am not sure, Your Honour. I am afraid,

I just do not know, Your Honour. We have looked at

many cases in the area of things the sheriffs can

do but generally my recollection is that they

related mainly to various writs and other forms of

process and not to subpoenaes so I am afraid I

cannot help Your Honour on that.

McHUGH J:  Does the principle of Semayne's case extend to

the land of a third party where goods of the

judgment debtor are said to be?

MR DOYLE:  As I understand it, it does, Your Honour. I am

not sure that I can pick out a particular line in

Semayne but my understand is that it does.

MCHUGH J: Yes.

Plenty(8) 51 21/8/90

MR DOYLE:	I .understand from Mr Chivell that in fact the case I just gave to Your Honours, Penton v Brown,
was a case where the bailiff entered the land of x, in effect, in search of the goods of Y - the first
two or three lines:

The defendant justifies as bailiff by

virtue of fieri facias directed to the

sheriff, who per vias usuales entered the barn

of the plaintiff where the goods of Welstead,

against whom Williams had recovered, were.

MCHUGH J: Yes.

MR DOYLE:  So, it is the plaintiff's barn; in it are the

goods of Welstead and Williams has a judgment in

respect of them.

Well, Your Honours, for what it is worth, we

rely upon the analogy of the bailiff executing

civil process and I do not wish to read from

Southam v Smout. We have referred to the relevant

passages in paragraph 6 of our outline but it was

there held that when the bailiff is executing civil
process he may enter, in that expression "in the
usual way"; that involved the opening of a door

that was closed and, as best one can tell from the

judgment, of the entry then into a private home

because the headnote records that the debtor, whom
the bailiff was seeking, was found in the kitchen
serving tea to her grandchildren so, clearly, he
came in the front door of the house and he was held

able to do so because the door was not locked and

he just opened it in the usual way.

In our respectful submission, again one can argue by analogy and say, "Well, if as is the case,

the service of process will justify what is

otherwise a trespass to the person", again, in our

respectful submission that suggests by way of

analogy that the service of a summons would justify

what is otherwise a trespass to land and, again, as

to the first point, trespass to the person, we rely

on the other case which is in paragraph 6 of our

outline from which I will not read, Rose v

Kempthorne; that is the, I think, well known case

where the bailiff, in serving a summons I think it

was but certainly that type of process, on the

person pushed it inside the flap or front of his

jacket because the person on whom he was serving

the proceedings refused to take them and the court

held that while technically that would be a

trespass as it was done in the course of serving

civil process, there was no trespass and so, again,

in our submission, there is an analogy there to the

present case and it is a question, perhaps, of what

Plenty(8) 52 21/8/90

one makes in the end of the value of that analogy

as against the silence of the authorities.

So, apart from that, Your Honours, we did look

at the American authorities and found the same, in

effect, silence on the central point which we found

in the local materials but could I just refer

Your Honours to the second Restatement of the Law

of Torts which is loose in the back of the book of authorities; that is, the 1965 restatement, and we

could not find anything which was clearly and

directly on point in relation to criminal process

and so section 208, which we have copies for the

Court, relates to civil process and Your Honours

will see from paragraph (1) of the section that it

is said:

The privilege to execute civil process

pursuant to a writ which is either valid or

fair on its face, carries with it the

privilege to enter land in the possession of

another for the purpose of executing such

process -

So, to the extent that there is an analogy to civil

process which can validly be drawn on, it appears

that in America the position as to civil process is
the same as it is in England and, presumably,

Australia, but it is interesting - this is perhaps

appropos of the point made by Your Honour

Justice McHugh and I do not want to labour the

expression "civil process" too much but when one looks at note b, the third paragraph, one reads:

As to the effect of the actor's

unreasonable conduct while on the land in

serving the civil process -

suggesting that this is seen as embracing both what

I have called compulsive process and other

things and, again, in the next paragraph:

To the extent that the exercise of the

privilege to enter land in order to serve

civil process is created -

et cetera, and then immediately after that:

Statutes frequently provide for

substituted service.

So, it would seem as if in America in this area the

relevant principle applies both to, one would

think, summonses and also compulsive process and

one does at least see there an instance of what we

contend is not erroneous; that is, the use of the

Plenty(8) 53 21/8/90

term "executing process" to refer to the service of

a summons.

One also sees over the page, in note g, that

there are limitations to this right of entry, that

it has to:

be exercised at reasonable times and in a

reasonable manner.

And, if the person uses "unnecessary force", he is
"subject to liability". So, making it clear, as we

submit would be the case that the sort of right for

which we contend, while it is a right to make entry

and a right to make entry even though the entry is

resisted, nevertheless there are limitations upon

it. We do not contend that it is a right then to

do whatever the person entering seeks to do.

BRENNAN J:	It seems to be all conditioned on the process being valid or fair on its face.
MR DOYLE:	Yes. Well, clearly, Your Honour, and as I

understand it the same applies in English law and
while, if the process is defective in English law,
the relevant person may have the benefit of the

Constable's Protection Act, nevertheless, my

understanding of English law is that is you can

point to a basic flaw in the civil process and,
perhaps not just in the civil process, in the

process which is being executed, then the person

who seeks to enter under it will be in difficulty,

subject to special statutory protection.

We also provided to the Court a copy of

Black's Law Dictionary just to indicate that at

least in American terminology the term "process"

seems to be used to embrace both summonses and

procedures which are in execution of a judgment

because, under the heading of "process" in the

first page we have photocopied and then, the second

subheading, "civil and criminal proceedings":

Process is defined as any means used by

court to acquire or exercise its jurisdiction

over a person or over specific property.

The dictionary goes on to make it clear that the

term "process" readily embraces initiating process

and, in our submission, that is the same in English

law. I suppose the real question is what

significance one puts on the word "execution" and
whether one then says, "Well, whenever you see the

word 'execution', it must mean only 'some types of

process', not all types of process".

Plenty(8) 54 21/8/90

So, Your Honours, in conclusion, our

submission is that seen in its historical context,

section 27 of the Justices Act conferred on
Constable Dillon a right of entry on the land of

Mr Plenty of either to effect personal service on

Miss Plenty or alternatively to effect non-personal

service of the summons on any relevant person

there, a person over the age of 14 or 16 but, in

particular, non-personal service on the parents of

Miss Plenty.

For the purpose of these submissions, I do not

rely upon the entry under the notice given under

the Juvenile Courts Act. I would acknowledge that

it would be another question altogether whether a

statutory provision providing for notice to parents

in a modern statute carried with it the right to

make entry on to land. We rest our case on the

provisions of section 27 and the fact that the

constable had in his possession the summons.

BRENNAN J:	Mr Solicitor, is there any provision of any of the Acts that are relevant here which inhibits the
publication of names in any way?
MR DOYLE:	Not in these proceedings, I do not - not that I

can think of, Your Honour.	Not that I can think
of, Your Honour.

BRENNAN J: Yes.

MR DOYLE: Just a propros of the notice, Your Honours, my

learned friend yesterday made the point that the notice may have been invalidly issued. We, as I indicated yesterday, contest that but we would also

make the point that Justice White does not appear,

in any event, to have based his judgment on the

validity of the notice because, going back for a

moment to volume two of the appeal book, at page

405, line 5, he alluded quite specifically there to

the fact that the notice was:

beyond the magistrate's power -

and the tenor of that portion of the judgment

indicates that while in a, with respect to

His Honour, not particularly clear way, he may have drawn something from the possession of the notice, he was alert to the fact that it may have been

beyond power and, in our submission, clearly was

not basing ultimately his conclusion on the

possession of the notice. They are our

submissions, if the Court please.

McHUGH J:  Mr Solicitor, if the appeal was allowed, what

about the question of costs? The appellant seemed

Plenty(8) 55 21/8/90

to have lest the main issue at the trial and also

in the Court of Appeal in terms of the assault.

MR DOYLE:	Yes. Well, if the appeal were allowed, in our submission the matter should go back to
Justice Mohr for assessment of damages and,
inconvenient as it may be, perhaps the question of
costs should await the outcome of that.
McHUGH J:	He took the view that the trespass was trivial

even if there had been a trespass.

MR DOYLE:  Yes, and in my submission, if the appeal were

allowed and he remained of that view, in our

respectful submission, then there would be

certainly a very strong case for denying the

appellants any costs in respect of what the Judge

found to be a trivial trespass. Of course, there

may be other evidence - the assessment of damages

may bring to light oth~r evidence that would cause

him to alter that view but, in our submission, I

think I would have difficulty resisting, if the
appellants succeed, them having the costs of this

appeal but, as to the costs of the appeal in the Full Court, in our respectful submission, again,

perhaps the best thing would be for the costs of
the proceedings in the Full Court to be remitted to

the Full Court to decide in the light of time

occupied in argument on the various issues.

BRENNAN J:	Mr Solicitor, the bankruptcy offence of keeping house, does that have anything to say as to whether
or not creditors can approach to serve process?
MR DOYLE:	I am afraid I do not know, Your Honour.

BRENNAN J: Neither do I.

MR DOYLE: Yes, comforting.

BRENNAN J: Yes.

MR DOYLE:	So - I do not know, Your Honour.
BRENNAN J:	No, thank you.

MR DOYLE: If the Court pleases.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Abbott.

MR ABBOTT:  If the Court pleases, my learned friend has, I

think, principally relied on establishing that the

summons and notices were processes in which the

monarch was a party. He has not relied, as I

understand his submission, that what they were

seeking to do was executing process. It is our

submission that all the authorities and, in

Plenty(8) 56 21/8/90

particular, Semayne's case, speak of both being

necessary, the proceedings needing to be in the

proceedings to which the monarch is a party and

execution thereof, and indeed, one of the

references in our book of authorities, the text of

Tomlins at page 266, column 2, about half-way down,

· where the author refers to the reference to

Semayne's case and speaks in the following terms:

It is laid down as a general rule in our

books, that the sheriff, in executing any

judicial writ, cannot break open the doors of

a dwelling house; this privilege, which the

law allows to a man's habitation, arises from

the great regard the law has to every man's

safety and quiet, and therefore protects them

from the inconveniences which must necessarily

attend an unlimited power in the sheriff and

his officers in this respect; hence, every

man's house is called his castle.

Yet in favour of executions -

the author goes on to say -

which are the life of the law, and especially

in cases of great necessity, or where the

safety of the kind and commonwealth are

concerned, this general case has the following

exceptions:

1st. That whenever the process is at the suit

of the king, the sheriff or his officer may,

after request to have the door opened, and

refusal, break and enter the house to do

execution, either on the party's goods, or

take his body, as the case shall be.

And, it is our submission that the summons is

nothing to do with what the learned author refers

to in those passages and, indeed, the authority of

Penton v Brown to which my learned friend referred

was still a case of executing a writ.

The next point that Your Honour Justice Brennan

referred to during discussions with my learned

friend, Your Honour mentioned that a summons was

not a coercive proceeding and was merely to give
the parties an opportunity to be heard. There is a
reference that may assist the Court in that regard

- Burn's "The Justice of the Peace and Parish

Officer", at page 248 of our book of authorities.

In dealing with a summons, just below the passage

that my learned friend referred to which was to the

effect that the justices ought to summons a party

to appear, in the first half a dozen lines.	The
author went on to say about ten lines down:

Plenty(8) 57 21/8/90

In other cases, where it is left discretionary

in the justices it seemeth most agreeable to

the mildness of our laws to put the party to no

more inconvenience than needs must and,

therefore, when the case will bear it a summons

seems more apposite than a compulsory process.

It is our submission that the right, if it be a

right, for an officer to trespass on the land of

the party to serve a summons would be inconsistent

to a claim to cause the party no more inconvenience

that needs must.

The third point we wish to make is that

Your Honour Justice McHugh discussed with my

learned friend the implied right to enter. We

accept that there is an implied right to enter on

land and get to a front door in some cases and the
implied right to which we speak of has been

withdrawn in this case and is accepted as having

been withdrawn.

Even in cases of the implied right to enter there was never any generally implied right to go

over the threshold of property but, more

importantly, the implied right in those terms that
the majority of this Court spoke of in Halliday v

Nevill was never considered as having flowed from a

power to serve. It was an implied right which, as

I understand the judgment of the majority, arose

from the normal and usual course of human

relationships and the Court, in Halliday v Nevill

at page 7, spoke of:

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 nor injury.to the occupier, his or

her guests or his, her or their property.

This implied right, if not withdrawn, gets you to

the front door but no further and it is our case

that the line that was drawn in this case by the

express removal of the implied right means no right

to step over the boundary line. We refer to Lippl

v Haines, which is on our list of authorities,

particularly at page 632, where the Full Court of

New South Wales made no distinction as I read the

case between mere entry on the one hand and

breaking down the door of the premises and, lastly,

if we could say this: that none of the old texts

to which we have referred and that does not mean

there may not be such a text but none of the texts

speaks of a power to serve giving a power to enter

Plenty(8) 58 21/8/90

and, it is our submission that, given the obsession

with Englishmen and their castles, which is a

recurring theme throughout all the old authorities,

the omission to mention it is not due to its

assumed existence but due to its complete absence.

If the Court pleases.

MASON CJ:  Thank you, Mr Abbott. The Court will consider

its decision in this matter.

AT 10.29 AM THE MATTER WAS ADJOURNED SINE DIE

Plenty(8) 59 21/8/90