Plenty v Dillon

[1989] HCATrans 192

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al of 1989

B e t w e e n -

SYDNEY GRAHAM PLENTY

Applicant

and

.HCHAEL KENNETH DILLON,

ROBYN ANN WILL,

ROBERT RAYMOND JENNINGS, and THE STATE OF SOUTH AUSTRALIA

Respondents

Application for special

leave to appeal

Plenty(7)

MASON CJ DAWSON J GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST IORO, AT 2.~R PM

Copyright in the High Court of Australia

Al Tl,. /1 /HS 1 23/ R /Ra

MR M.L. ABBOTT, OC:  May it please the Court, I appear with

learned friend, MR T.J. MELLORE, for the applicant.

(instructed by Mellors)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court please, I appear with my learned frien<l,

MR W.C. CHIVELL, for the respondents.

(instructed by the Crown Solicitor for South Australia.

MASON CJ:	Yes, Mr Abbott.
MR ABBOTT:	May I hand up a copy of the legislation and the

autho~ities that are o~ our list of authorities,

together with a proposed draft grounds of appeal of

which I have provided a copy to the Crown. !he of appeal are voluminous and, to some extent,

verbose, having been prepared by the applicant without

the benefit of any legal drafting.

MASON CJ:  Yes, well, that may constitute a difficulty. We

are not going to grant special leave to appeal so as

to undertake an appeal which involves a number of

points many of which may he unarguable.

MR ABBOTT:  Quite, that is why I have reduced them on this

proposed draft grounds of appeal which is in

substitution for the voluminous grounds that were

contained in the application book.

MASON CJ:	Yes.
MR ABBOTT:	The question raised by this application is the hoary

old liner, "When is an Australian's home his castle?",

and it raises in stark relief the right of officialdom

to enter upon a person's property. The implied

licence to enter which is so often by a side wind,

as it were, diverted a court's attention from the

issue of the right of officialdom to enter, as,

in this case, plays no part since it was expresslv

excluded by the actions of the applicant in writing
to the police, the premier and others.	In this

sense the case is dlfferent from that of HALLIDAY V

NEVILL which, as I apprehended, is, up until this

time, the leading authority on this matter.

In our submission, the issues in this case, like

the issues in HALLIDAY V NEVILL, were described bv
the maiority, of which Your Honour the Chief Justice
formed a part, as issues of fundamental importance

touching the liberty of the subiect, and as the Court

is aware, HALLIDAY V NEVILL went off on the issue of

the implied licence which exists until revo~ed bv
the owner of a land to allow persons engaged in

normal business and in the case of police officers

to come on his land for normal purposes and, in the

case of HALLIDAY V NEVILL to effect an arrest of a

third party.

AlTll/2/HS	2	23/8/89
Plenty(7)

As I have said, in HALtIDAY V NEVILL the case

went off, if you like, on the issues of grounds

involving the implied licence. Here Mr Plentv

had done what the maioritv in HALtIDAY V NEVILL said a citizen could do and if I could take the

Court to HALLIDAY V NEVILL which is the first case

in the boo~ of authorities, page 8 thereof -
HALLIDAY V NEVILL, (1984) 155 CLR 1, at page 8.

One third of the way down the Court said:

The question which arises is whether,

in those circumstances, the proper

inference as a matter of law is that a

member of the police force had an implied or tacit licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he

had observed committing an offence on a

public street in the immediate vicinity of

that driveway. The conclusion which we have

reached is that common sense, reinforced by
considerations of public policy, requires

that that question be answered in the

affirmative. That conclusion does not

involve any derogation of the right of an

occupier of a suburban dwelling to prevent

a member of the police force who has no

overriding statutory or common law right

of entry from coming upon his land. Any such occupier who desires to convert his path or driveway adioining the public road

into a haven for minor miscreants can, by

taking appropriate steps, preclude the

implication of a licence to a member of the

police force to enter upon the path or

driveway to effect an arrest with the

result that a police officer's rights of

entry are restricted to whatever overriding

rights he might possess under some express

provision or necessary implication of a

statute.

Here, if the Court granted leave, the questions would

be whether or not there is any statute which, by

express provision or necessary implication, gave

police officers the right to enter upon Mr Plenty's

property for the purpose of affecting service of a

summons and two notices and, moreover, the other

question would be whether or not there was any

common law right of entry which was given to the

process-servers. The Court divided 2:1 in the matter

The President, Justice White, in his iudgment, said that - this is in the application book at page 25,

his conclusion. He said at line 8:

However, the police had a right to be there

on the land to effect service at least

AlTll/3/HS	3	23/8/89
Plenty(7)

under s27(1) of the JUSTICES ACT, in

order to serve the daughter's summons

non-personally upon Mr Plenty. That

statutory right to be there coupled with

the exigencies of the occasion (including
the need for summarv curial attention to
the allegation of n~ed of care and control

and the necessity to serve the parents)

combined, in my opinion, to constitute an

over-riding duty for the police to attend

at the land and to go on to the land on

December 5 1978; and an over-riding right

of the police to be there.

Now, in our submission, all that is saying is that

from a power to serve a summons one can imply a

power to enter and, in our submission, there is

absolutely no authority for that proposition and,

indeed, a wealth of authority pointing in the other

direction, and one of the matters that we would wish

to canvass should the application be allowed is
whether or not this Court would review HALLIDAY V

NEVILL in the sense ~hat in the iudgment of

Justice Brennan he refers in some detail to the line

of English authorities which canvass whether or not a

right can be implied as a consequence of a right

given by statute.

I refer the Court to his iudgment at page 17,

about a third of the way down, where he spoke of the

powers and then he said:

The presumption that a statute creating

general powers of arrest intends to confer

a power of entry corresponding with the

common law is not applied to a statute
creating a novel power of a different nature.

The common law presumes that when Parliament

creates a novel power, it does not intend

thereby to authorize the commission of a

general protection which the common law

trespass to facilitate its exercise. The

accords to persons in possession of private property is undiminished by the creation of the novel power unless Parliament expressly provides otherwise.

DAWSON J:  Mr Abbott, the trial iudge ordered no damages here,

did he?

MR ABBOTT:	No, because he did not consider - - -
DAWSON J:	He said it was of a trifling nature.
MR ABBOTT:	He said they would be of a trifling nature.
DAWSON J:	Does the question really not become an academic

one in those circumstances?

AlTll/4/HS	4	23/8/89
Plenty(7)

MR ABBOTT:	We would submit not, Your Honour. If we are successful to obtain a decision favourable in terms
of trespass, the question will then have to be,
"What happened during the course of the trespass?",
which raised a number of matters with which I do
not want to take up the Court's time, but Mr Plentv
was dragged protesting from his farm and thereafter
subdued, taken away, and thereafter convicted of
assaulting the very officers who had come to serve
the summons.  So we would submit that it is not a
de minimis situation and we say that this - - -
DAWSON J:	The trial iudge found there was no assault.
MR ABBOTT:	No assault in terms whereby Mr Plenty was claiming the police assault-was assaulted by the police
initially. If, however, the arrest goes with
the trespass, then the purported arrest becomes an
illegal arrest and, in our submission, would thereby
be an assault,  so that the damages for the trespass
may encompass what happened in consequence of the
trespass because of the things that were done to
Mr Plenty by the police officer upon their entry
which we say was illegal, unwarranted and unauthorized.
MASON CJ:	Mr Abbott, you said that you would be, if you

obtained special leave, as~ing the Court to review

HALLIDAY V NEVILL.

MR ABBOT!:	Yes.
MASON CJ:	In what resoect?
MR ABBOTT:	Not in the sense of the decision of the maioritv

whereby the maiority decided as to the implie~ right

of entry but - review the iudgment. I am sorry, I

should have said review the iudgment of Justice Brennan

where he goes into other matters that were not

covered by the maiority in the judgment of the maioritv
but he deals with incidental matters to HALLIDAY V

NEVILL but matters which are central to this particular

case where the implied right of entry was expressly

excluded and accepted by all sides as having been expressly

excluded.

MASON CJ:	Yes.
MR ABBOTT:	Could I deal with the iudgments.  We, of course, say

that the judgment of Justice Cox correctly put the law

and I refer the Court to page 27 where His Honour, at

line 2, poses in stark terms what we say is an

appropriate special leave question:

The fundamental question is whether

a landowner may, by forbidding the

police to enter his land, prevent

them from serving -

AlTll/5/HS	5	23/8/89
Plenty(7)

documents, summonses, et cetera, on members of his

family. His Honour went on to say that in consequence

of the words of SEMAYNE's case, His Honour held the

view that the police were not there:

process II "to do ... execution of the King's

although that was the argument that was mounted by
the Crown, and His Honour drew a distinction between

executing the King's process in the sense of the sheriff executing a warrant and a process-server

serving a summons. As he observed:

One "executes" a warrant, not a summons -

and he cited HOLSWORTHY V EDWARDS as authority for

that proposition, which indeed it is, and at page 28,

line 2, he said:

as I say, a warrant is one thing, a

summons is another.

Then he asked the question whether it was obvious,

and it appeared to him not to be obvious:

that warrants and summonses should be regarded as being of equal importance in this respect and treated in the

same way.

He concluded by saying that:

In a case where it may make all the difference the law by which the summons

itself is authorized may well provide,

subject to safeguards, for the issue of

a warrant of arrest instead -

as, indeed, the JUVENILE COURTS ACT did in this

particular case, by virtue of section 61. He said:

We were not referred to any reported

case in which the power to override the

ordinary law of trespass by wrongful

entry has been conceded to the server

of a summons, as distinct from the person

executing a warrant -

and he derived that proposition from SEMAYNE's case

to which I take the Court. It is at page 57 of the

boo~ of authorities and SEMAYNE's case, (1604)

77 ER 194, laid down, we say, the very distinction

which the iudgment of the maiority failed to

observe, the distinction between the serving of

AlTll/6/HS	6	23/8/89
Plenty(7)

summons on the one hand and the execution of

warrants on the other.

MASON CJ:  Now, where do we find that distinction in the

iudgment?

MR ABBOTT:	We find that distinction, if the Court pleases, very briefly in item 3 in the headnote, and I will take the Court to the body of the report where it
appears, but the phraseology used in the English
Report's version is:

In all cases where the King is party, the sheriff may brea~ the house, either to arrest or do other execution of the King's process.

It will be observed that in SEMAYNE's case it was a

question of goods remaining in a house in respect of

which Mr Semayne claimed the goods and Semayne issued

a writ and got a iury and took the ~ury and the sheriff

to a Mr Gresham's house where the goods were situated

and, because Mr Gresham shut the door and refused to

let the sheriff in to get the goods, the question was
whether or not the sheriff had done all in his power

to execute the writ and whether he could have broken

in in execution. If he had done all in his power,

then Mr Gresham had done nothing unlawful in sh·utting

the door. So, the case laid down principles which we

say differentiated between the service of process and

the execution of the King's process.

Indeed, process-servers are referred to 1n, one

might think unduly derogatory terms, at page 198 of

the English Reports.	Line 4 is the start of the
reference:

It was said, that the sheriffs were

officers of great authority, in whom the

law reposed great trust and confidence,

and are to be of sufficiency to answer	for all wrongs which should be done; and
they had custodiam comitat, and therefore
it should not be presumed that they would abuse the house of any one by colour of doing their office in execution of the King's
writs -

I emphasize "execution of the King's writs" -

againstthe duty of their office, and their

oath also:  but it was resolved, that it

is not lawful for the sher. (on request made

and denial) at the suit of a common

person, to break the defendant's house, to
execute any process at the suit of any subiect;

for thence would follow great inconvenience

AlTll/7/HS	7	23/8/89
Plentv(7)

that men as well in the night as in the day

should have their houses (which are their

castles) broke, by colour whereof great

damage and mischief might ensue; for by

colour thereof, on any feigned suit, the

house of any man at any time might be

broke when the defendant might be arrested

elsewhere, and so men would not be in

safety or quiet in their own houses: And

although the sheriff be an officer of great

authority and trust, yet it appears by

experience, that the King's writs are

served by bailiffs, persons of little or no

value: and it is not to be presumed, that

all the substance a man has in his house,

nor that a man would lose his liberty, which

is so inestimable, if he has sufficient to

satisfy his debt. And all the said books - - -

MASON CJ:	You do not need to read any more, do you?
MR ABBOTT:	Et cetera.  Now, the thrust of that, stripped of

the rhetoric is, in our submission, a distinction

between sheriffs executing the monarch's writ and

people serving summonses, a distinction which is

properly drawn by Justice Cox in his ~udgment.

That distinction was not drawn by the maiority in

their _iudgments. They preferred to say, "There is

a power to serve given by the section of the Act

under which these documents occurred, ergo, there

is a power to enter", and, as I said, Justice White,

in his judgment as President of the court, said,

at page 25:

the police had a right to be there on the

land to effect service at least -

we say there was no right to be on the land, and

he says -

in order to serve the daughter's summons

non-personally upon Mr Plenty. That

statutory right to be there -

whether he means at the gate or on the land 1s

unclear -

coupl~d with the exigencies of the

occasion -

we say he is drawing out some public policy feature
which is absent from the cases, the public policy

feature - we say it all the other way from 1604

onwards - the public policy is that once the door is

shut it takes the existence of a clearly established

common law right, or a clearly stated statutory right

to open the door of a subiect. I need not cite

AlTll/8/HS	8	23/8/89
Plenty(?)

ENTICK V CARRINGTON, and the	other cases that preserve
or state those propositions.	Justice Prior, to the
same effect, at page 36 in a	short iudgment said this -
line 12:

There was no trespass on to the plaintiff's

land. The police officers were entitled

to go there seeking to serve the Juvenile

Court Summons addressed to the plaintiff's

daughter. They were see~ing to execute a

process of The Queen - the service of a

summons.

We say, what he has done is use the phrase cold

from SEMAYNE's case, "executing a process of the

monarch", and said that service of a summons can be

equated to executing a process of the monarch, in the same way, perhaps - because it is not crystal

clear from Justice White's judgment - in the same

way that we say that Justice White did it. But, in

any event - - -

DAWSON J:	Whose summons is the summons?
MR ABBOTT:	The summons in this case was a summons issued bv

the Justices Court. True it is, it is a ·

summons of the court, I accept that. I have copies

of the summons here, if the Court wishes to see the

summons, and the notices. May I hand up a copy of

the summons, together with - - -

DAWSON J:  Because a writ of summons is the Queen's process,

is not it?

MR ABBOTT:  Well, the question is whether one is executing a

process. Our argument turns not so much on the word

"process", or what comes within the term "process",

but what comes within the definition of the word

"execute", and we rely upon what Justice Cox said

that "a warrant was one thing, cl_ summons is another",

and that - this is at page 28 -'where:	the power to override the ordinary law
of trespass by wrongful entry has been conceded to the server of a summons,
as distinct from the person executing a
warrant.

So the important considerations which arise is whether

or not there was any common law power and whether or

not there was any statutory power. The only warrant

by statute could be a combination of the JUSTICES ACT

and the JUVENILE COURTS ACT. We say it is clear at

common law, or at least argu2hl2 at common law that

there is no power and that in the end there was a

trespass because they were acting without any power

to go on the premises by law.

AlTll/9/HS	9	23/8/89
Plenty(7)

The matter is again touched upon by

Justice Brennan - if I could refer the Court to

HALLIDAY V NEVILL. He spoke and, in our submission,

his opening words raise exactly the same issues as

would be raised on this application.	I refer to
page 9 of the judgment.	He said:

This case is about privacy in the

home - - -

MASON CJ:  Yes, well you need not read that. There 1s no

occasion to read that, Mr Abbott.

MR ABBOTT:  He then referred to the common law principles at

page 10 and he recognized at page 10, a third of

the way down , that:

A police officer who enters or remains

on private property without the leave or

licence of the person in possession or

entitled to possession commits a trespass

..... unless ..... it is authorized or

excused by law -

and he then reviewed the cases which, we say, would

be reviewed if this application for leave were granted.

He dealt with the common law power and, in that case,

the statutory power is a Victorian Act. In this
case the South Australian Acts provide no power
whatsoever to enter, and if I could refer the Court

to the Acts that are of relevance - - -

MASON CJ:  Is it of any importance to do that? We need to

know from the solicitor whether he is going to rely

on a statutory power.

MR ABBOTT:	Yes.
MASON CJ:	You can respond if he asserts that there 1s an

explicit statutory power.

MR ABBOTT:  Yes, very well. One other point I should make

is that one of the grounds in the proposed draft

grounds of appeal relates to the notices, ground 3,

the Court of Appeal erred in impliedly holding that

the notices were badly issued. These are notices

under section 29 of the JUVENILE COURTS ACT and

section 29 of the JUVENILE COURTS ACT, in our

submission, provides for notices only to be issued

when the child who has been brough before a juvenile

court and that the notices - this is an added factor,

of course - not only do we say that the attempt to

serve the summons was illegal, but it was compounded

by an attempt to serve notices that were illegally

issued because the notices themselve~ purportedly issued under section 29, as you will see in those

documents I handed up, were not issued pursuant to
a condition precedent which the section imposes.

AlTll/10/HS	10	MR ABBOTT, QC	21/8/89
Plenty(7)

MASON CJ:  But what does that matter if there was authority

to enter upon the land for the purpose of the issue

of the summons?

MR ABBOTT:  It matters nothing if there was power to go on the land to issue the summons. I am wor~ing on the basis

that there was not power and. endeavouring to demonstrate

that the illegality was the greater by the fact that,

not only was there no power, but it was compounded

by the carrying with them of illegal notices.

MASON CJ:	You have to make good your first point, have you not?
MR ABBOTT:	I accept that, sir.
MASON CJ:	Yes.
MR ABBOTT:	If I could refer the Court to the concluding words

of Justice Brennan's judgment in HALLIDAY V NEVILL,

because it seems to me that something opposite to

this argument was advanced by Justice White.

Justice Brennan said, at page 18, at the bottom of

the page, six lines from the bottom:

Is some licence to be inferred in fact, at least in the generality of cases?

The circumstances of each case determine whether it is reasonable to infer

this is about the implied licence, and he said:

However legitimate or even laudable from

the public viewpoint the business of a police

officer may be, it cannot be inferred that

in general the police officer has an implied

licence to enter and remain on private

property.

The public policy aspect was called in aid by

Justice White to support his view that the power to

serve gave a power to enter, and His Honour posed

the question at page 20 that once it is admitted that

the police officers have an implied licence to enter

and the apposite qualification would be, to this

case, once it is admitted that there is an implied

licence to enter flowing from a power to serve,

His Honour said:

Might a licence for other police purposes

be implied to instal the traffic radar

device on the driveway or carry out

surveillance of neighbouring premises

from there -

et cetera. So we say that the majority failed to -

as Justice 'Brennan in fact showed, once you say that

there is, by implication or by public policy

Al T 11 /11 /HS 11 23/8/89

Plenty(?)

flowing from a stated power to serve, an impl_ied

licence to enter, how far does it go? We sav that is a matter which is of great public importance and

would be covered by this appeal should application

for leave be granted. If the Court pleases.

MASON CJ:  Mr Abbott, there is one question I wish to ask

vou and it is this; if special leave is granted

will your clients brief counsel on the hearing

of the appeal?

MR ABBOTT:	Yes, Your Honour.
MASON CJ:	Thank you.  Yes, Mr Solicitor.
MR DOYLE:	If the Court pleases, there is no explicit statutory

power to which we can point and in our submission the

power of entry is to be found, if at all, in one of

two places. One is in section 27 of the JUSTICES ACT -

I think Your Honours have that before you in the book

that was handed up-and that provides that:

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.

In our submission, one possible answer, and this was the one which commended itself to the ma_iority, is

that from that those statutory provisions is to be

implied a power of entry; the other possible answer

is that merely the possession of the summons from

that is to be implied a power of entry, iust as an officer holding a warrant presumably does not have to point to a statutory provision entitling him to

go in.	He says, "Something about this warrant is
what empowers me to enter".	So, in our submission,

this case lies in that area. The interpretation of

Tl2	section 27 or alternatively the power that is carried
by the possessor of a summons.

We would submit that the matters of

constitutional importance arising out of SEMAYNE's case
really do not arise here because SEMAYNE's case is

concerned with a very different issue, "the Englishman's

home is his castle", not that his bac1<yard is his

castle.

SEMAYNE's case is concerned with breaking down

doors and forcing entry through windows into buildings.

A1Tl2/l/HS	12	MR ABBOTT, OC	23/8/80
Plenty( 7)	MR DOYLE, QC

Here we are concerned, wholly and solely, with

simple trespass on to land and, in my respectful

submission, while one might, in a very broad sense,

say that SEMAYNE's case arises here, it is only in

the verv broadest sense that it indicates the

traditional care which English law has for proprietrv

rights.	So we submit that really the whole case
turns on two quite narrow points;	on the other hand,

we ac~nowledge that there is a lack of case law on

matters which my learned friend suggested

the point and that is a matter, no doubt, for wide-ranging

arise out of cases li~e HALLIDAY V NEVILL iust

do not arise. ·

Again, this is not a matter of arrest, it is not

a case of pursuit on to a property for purposes of

arrest. So we would submit, Your Honours, that the

answer which the majority of the Full Court gave is

fairly clearly correct and there is not sufficient

doubt about the matter to warrant the grant of special

leave. The other point I would make, if I might, is

that it really is, in many senses, a rather trifling

case. As His Honour said, there was no question of

damages being awarded under the circumstances, and we

would further submit that if leave were granted the

leave should exclude ground l(b). That raises the
issue of assault and as to that, if the Court pleases,

the reason why we submit that should be excluded is

it is wholly a factual matter - it is ground 1 (b) in the

proposed amended grounds, Your Honours, the separate

sheet of paper that was handed up.

Very briefly, what happened was the policemen

came on to the property, they said, "We've got these 11 0

II h . d . ff II 'T'h

papers , e sa1 , 1n e .. _ect, ut you go . __ ev

were wal~ing away and, as the ~udge found, he then

swun8 a piece of wood at one of the policemen. They

• d II

ten sa1 , h You are now under arrest, Mr Plenty.

You're coming with us", and the alleged assault was

when they they attempted to ta~e him away on the

charge of assaulting them. In my submission, that

is wholly a factual matter and, even if they were trespassers, bearing in mind that they came on to the property peaceably when they had dropped the

bits of paper near him and been told to get going
they turned to live, it could not possibly be
contended in any sense the alleged assault on Mr Plenty

arose out of the trespass and, as all those factual

issues were resolved against Mr Plenty at trail and,

in my submission, are in no way linked to the trespass
on to the property, if leave were granted, ground 1

should be. excluded.

So for those reasons, we submit that special

leave should not be granted but, if it is, should be

limited accordingly.

AlT12/2/HS	13	23/8/89
Plenty(7)

MASON CJ:  Mr Abbott, w~at do you say about the solicitor's

last submission?

MR ABBOTT:  We would, I think, make no submission about that.

The principal matter is, of course, the trespass.

MASON CJ:	Yes.
MR ABBOTT:	And that is the issue that is raised, the assault,

as it were, being incidental thereto, not in terms
of the situation of Mr Plenty, but the legal issue

is really the trespass and that is the one that we have

always sought to litigate, if the Court pleases.

MASON CJ:  Yes. There will be a grant of special leave to

appeal in this case, but it will be limited to the

grounds expressed in oaragraphs l(a), 2, 3, 4 and 5
in the document headed Proposed Draft Grounds of

Appeal which was handed up during argument by

senior counsel for the applicant.

AT 3. 3L~ PM THE MATTER WAS ADJOURNED SINE DIE

A1Tl2/3/HS	14	23/8/89
Plenty(7\