Sheridan v Australian Pacific Airports (Melbourne) Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2018 02370

ANTHONY JAMES SHERIDAN & ORS (according to the schedule)	Plaintiffs
v
AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD & ORS (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-13 May, 1 June 2021
DATE OF JUDGMENT:	28 July 2021
CASE MAY BE CITED AS:	Sheridan v Australian Pacific Airports (Melbourne) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 440

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LEASES AND LICENCES – Whether licence scheme introduced by first defendant for entry onto airport land unlawful – Whether plaintiff was trespassing on airport land whilst operating his hire car business without a contractual licence.

TORTS – False imprisonment – Where plaintiff alleged he was falsely imprisoned by employees, contractors and agents of the first defendant during a number of incidents – Nominal damages in respect of one incident only.

TORTS – Trespass to property – Where third party wrongfully entered plaintiff’s vehicle – First defendant not vicariously liable for tortious conduct of third party.

TORTS – Harassment – Misfeasance in public office – Intimidation – Unlawful interference in trade or business.

COUNTERCLAIM – Declaratory relief – Where first defendant entitled to declaratory relief that licensing scheme is lawful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr I Upjohn QC and Mr A Richardson	Mann Lawyers Pty Ltd
For the First Defendant	Mr D Collins QC and Ms R Kaye	Sparke Helmore
For the Second Defendant	Ms F McLeod SC and Ms L Barrett	HWL Ebsworth Lawyers

TABLE OF CONTENTS

A. Background................................................................................................................................... 1

B. Was the LDA scheme lawful?.................................................................................................... 3

B.1.There was no legislative or regulatory basis for the LDA scheme................................ 3
B.2.The Qantas lease and the APAM lease.............................................................................. 4
B.3.Did the APAM lease give APAM the right to impose the LDA scheme?.................... 5
B.4.If there were a limit to APAM’s power to impose conditions on entry, it would not be absolute as contended by Mr Sheridan............................................................................................ 8
B.5.Did the legislative and regulatory regime make the LDA scheme unlawful?............ 9
B.6.Conclusion — the LDA scheme was lawful and Mr Sheridan was a trespasser on APAM’s land...................................................................................................................................... 13

C. Was it lawful to enforce the LDA scheme within the Qantas domestic terminal?....... 14

D. Mr Sheridan and the interactions looked at as a whole..................................................... 15

E. Was Mr Sheridan falsely imprisoned in the terminals?..................................................... 16

E.1.What happened to Mr Sheridan?..................................................................................... 16
E.2.Was Mr Sheridan ‘confined’ in the terminals?............................................................... 17
E.3.Was any confinement in the Qantas domestic terminal ‘unlawful’?.......................... 21

F. In the carpark: the 11^th and 13^th incidents............................................................................. 22

F.1.The 11^th incident — 18 February 2013.............................................................................. 22
F.2.The 13^th incident — 26 March 2013.................................................................................. 27

G. Harassment.................................................................................................................................. 30

H. Misleading and deceptive conduct under the Australian Consumer Law..................... 31

I. Unconscionable conduct under the Australian Consumer Law........................................ 33

J. Misfeasance in public office..................................................................................................... 35

J.1.Did APAM hold a public office?....................................................................................... 35
J.2.Did APAM act maliciously?............................................................................................... 36

K. Intimidation................................................................................................................................ 39

L. Unlawful interference in trade or business........................................................................... 40

M. Operation of the Limitation of Actions Act 1958................................................................. 41

N. Liability of APAM for the actions of Mr Murphy and the VTD officer......................... 42

P. Loss & damage............................................................................................................................ 43

Q. What happened in the various other incidents?.................................................................. 43

First incident — 27 April 2011................................................................................................... 44
Second incident — 13 June 2011............................................................................................... 45
Third incident — 14 June 2011.................................................................................................. 46
Fourth incident — 20 September 2011..................................................................................... 46
Fifth incident — 18 July 2012..................................................................................................... 47
Sixth incident — 3 August 2012................................................................................................ 47
Seventh incident — 21 August 2012......................................................................................... 48
Eighth incident — 15 November 2012..................................................................................... 48
Ninth incident — 27 December 2012........................................................................................ 49
Tenth incident — 8 February 2013............................................................................................ 49
Twelfth incident — 9 May 2013................................................................................................ 50
Fourteenth incident — 4 June 2014........................................................................................... 50
Fifteenth incident — 20 March 2015......................................................................................... 51
Sixteenth incident — 3 November 2016................................................................................... 51
Seventeenth incident — 17 November 2016............................................................................ 52
Eighteenth incident — 11 June 2018......................................................................................... 52

R. Conclusion & proposed orders................................................................................................ 53

HIS HONOUR:

A. Background

Tony Sheridan, the first plaintiff, carried on business as a hire care driver through his company Accident By Design Pty Ltd, the second plaintiff.[1] Mr Sheridan had the necessary licence from the Victorian Taxi Directorate (‘VTD’) to do so. But Australian Pacific Airports (Melbourne) Pty Ltd (‘APAM’), the first defendant, who operated Melbourne Airport at Tullamarine, required all owners of commercial vehicles wishing to operate at Melbourne Airport to obtain from it a Landside[2] Vehicle Authority (‘LVA’), and all drivers of commercial vehicles wishing to operate at Melbourne Airport to obtain from it a Landside Driver Authority (‘LDA’). I will refer to this arrangement as the ‘LDA scheme’. The LDA cost $150 initially and then $125 per year for renewal. The LVA cost an additional modest fee. Participants in the LDA scheme were entitled to use a special area of the carpark set aside for their use, which was closer to the terminals than the public carpark, and they also received discounted parking rates.
[1]Where possible, for convenience, I refer to only Mr Sheridan, rather than to both him and his company.
[2]The airport is divided into the ‘landside’ and the ‘airside’.

Mr Sheridan took the view, based on legal advice provided to him, that APAM had no legal right to require that he obtain an LDA in order to operate his business from Melbourne Airport. He held the view that the driving authority issued by the VTD was all that he was required to hold, and was all that APAM was entitled to ask that he produce. So he did not apply for an LDA. He continued to carry out his business of driving passengers to, or collecting passengers from, the airport. On occasions, he parked in the special car park set aside for those with LDAs using a car with an LVA.

Mr Sheridan’s failure to obtain an LDA led to occasions of conflict. This proceeding concerns 18 incidents over the years between 2011 and 2018 arising out of requests made of him that he produce an LDA, and his failure to do so. It will be necessary to discuss each incident in some detail, but typically, Mr Sheridan would be approached by a security or federal police officer at a terminal, where he was waiting to collect a customer, and asked to produce his LDA. Typically, Mr Sheridan would challenge the officer’s right to ask for such a document, and in subsequent discussions, assert the view that the only document he was required to have, and the only document he was required to produce, was the document issued by the VTD. Typically, the incident would escalate, in the sense that either an employee of APAM or the federal police or someone from the VTD would become involved. On a number of occasions, Mr Sheridan recorded some or all of the interaction. Typically, the discussions would cease when Mr Sheridan’s passenger appeared, and he would then take the passenger back to his car and leave the airport. Typically, again, he would be accompanied to his car while doing so.

In this proceeding Mr Sheridan alleges that APAM, through its agents, committed a variety of torts against him. These include false imprisonment, harassment, intimidation, intentional interference with trade and business, trespass against his vehicle, misfeasance in public office, misleading and deceptive conduct, and unconscionable conduct.[3] Underlying his claims is his contention that the requirement placed on him to obtain and to produce the LDA was unlawful. He claims damages and seeks declaratory relief. For its part, APAM contends that it was lawfully entitled to require of Mr Sheridan that he obtain an LDA because, as lessee of land at the airport, it was entitled to impose conditions upon the entry of people onto that land. It also disputes that the actions of its agents amounted to tortious conduct, and says further, if it is liable, that Mr Sheridan failed to mitigate his loss by failing to obtain an LDA. It also contends that many of Mr Sheridan’s claims are statute-barred. APAM seeks a declaration that the LDA scheme is lawful.
[3]There is an issue as to the extent to which all these causes of action have been pleaded, or the extent to which all the elements of these causes of action have been pleaded.

The Commonwealth is the second defendant. It was sued on the basis that it was vicariously liable for the conduct of members of the Australian federal police who assisted in the enforcement of the LDA scheme. During the course of the trial, Mr Sheridan compromised his claim against the Commonwealth, and disavowed any claim against APAM based on vicarious liability for any torts committed by members of the federal police. Mr Sheridan did not abandon his arguments that APAM could be liable to the extent that it operated through the Australian federal police. The Commonwealth thereafter ceased to participate in the hearing. On 1 June 2021, APAM and the Commonwealth each withdrew, with leave, their respective notices of contribution.

B. Was the LDA scheme lawful?
B.1. There was no legislative or regulatory basis for the LDA scheme

The Airports (Control of On-Airport Activities) Regulations 1997 (Cth) gave an ‘authorised person’ the power to require a hire car driver to produce a licence from the VTD.[4] The regulations did not refer to or authorise the LDA scheme. However, APAM did not contend that its power to impose the LDA scheme derived from legislation or regulation. It contended that its right to do so arose as an incident of its rights as lessee of airport land.
[4]Reg 109.

Mr Sheridan did not contend in this case, and nor could he, that the Commonwealth regulations covered the field in the sense that they operated to exclude any other power that would otherwise exist to control access to the airport.

Mr Sheridan accepted, in this proceeding, that in ordinary circumstances a lessee of land, who has the power to exclude people from that land, would also have the power to impose such conditions as it wished on anyone who wanted to enter that land. Rather, Mr Sheridan contended that:

(a) because the Commonwealth had previously leased the Qantas domestic terminal to Qantas and because of the terms of that lease, the lease of the balance of the airport to APAM did not give APAM the power to impose a condition of the type it sought to impose on persons entering the land it leased; and

(b) the LDA scheme was a licensing scheme that was contrary to the relevant legislative arrangements that governed licensing schemes.

B.2. The Qantas lease and the APAM lease

The Airports Act 1996 (Cth) empowered the Commonwealth to grant airport leases.

The Commonwealth first entered into a lease of the Qantas domestic terminal to Qantas.[5] Clause 1.1 of that lease provided as follows:

[The Lessor] HEREBY LEASES unto the Lessee the Premises … TOGETHER WITH the right to use, in common with the Lessor and other persons entitled to use the same, the Infrastructure and such common areas, services and facilities of the Terminal as may be requisite for the normal use of, access to and enjoyment of the Premises …

[5]In fact, the lease was to Australian Airlines Limited. It was accepted by the parties that it is appropriate and convenient to treat the lease as if it were to Qantas.

The ‘Premises’ were the Qantas domestic terminal. This terminal is and was ‘landlocked’, in that it could not be accessed without entering onto other airport land. The ‘Infrastructure’ that Qantas was given the right to use included ‘car, bus and taxi access, passenger pick-up and setting-down areas and pedestrian and road access’ to the terminal.

Then, the Commonwealth entered into a lease of the airport site to APAM. Clause 1.1 of that lease provided as follows:

[T]he Lessor grants to the lessee … a Lease of the Airport Site … This Lease operates as a concurrent lease over all that part of the Airport Site which is the subject of leases existing as at Grant Time.

The ‘Airport Site’ included the Qantas domestic terminal, the lease of which existed as at Grant Time. I will refer to the land demised to APAM other than the Qantas domestic terminal as the APAM land or APAM’s land.

Also, s 22(1) of the Airports Act 1996 (Cth) provided:[6]

An airport lease is granted … subject to all existing leases in relation to the land concerned.

[6]See also, in similar terms, Airports (Transitional) Act 1996 (Cth) s 26.

APAM was obliged to ‘provide for the use of the Airport Site as an airport’[7] and to ‘develop the Airport Site … consistent with a Major International Airport having regard to … Good Business Practice’.[8] This included providing appropriate facilities for the ease of access and efficient use of the Airport Site by passengers and other users.[9]
[7]Clause 3.1(a)(i).
[8]Clause 12.1.
[9]Clause 12.11.

APAM accepted that it was bound by any obligations owed to Qantas as set out in the Qantas lease. This was because, as the lease to APAM was a ‘concurrent lease’, APAM became in effect the landlord of Qantas, and thus was bound by any covenants in the lease with Qantas.[10] It accepted that, if it imposed restrictions that amounted to a breach of those covenants, it would be liable. However, it said that its liability would be only to Qantas, and that otherwise, as lessee, it retained legal possession of the APAM land and the associated right to impose conditions upon which people might be permitted to enter that land.
[10]Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2016] VSCA 95, [26] (Santamaria, Ferguson and McLeish JJA).

APAM also accepts that it did not have a right of exclusive possession of the Qantas domestic terminal, and accordingly that it had no power to impose conditions on someone’s right to enter that terminal. The implications of this concession are discussed further in Part C below.

B.3. Did the APAM lease give APAM the right to impose the LDA scheme?

Mr Sheridan contended, as I understood it, that the LDA scheme was unlawful, even to the extent that it was imposed outside the Qantas domestic terminal. He put it this way in his written submission:

As a matter of law, concurrent leaseholders do not have a right to exclude the other, the other’s invitees or the other’s licensees from the area subject to the lease. As such, APAM did not have the power to impose the Scheme. The Scheme purported to exclude persons from accessing areas over which Qantas had a prior leasehold interest. As the Licensing Scheme purports to exclude the rights of persons to enter any part of Melbourne Airport, the Scheme amounted to an impermissible overreach, and an attempt to impose obligations over another parties’ lands and interests.

He also submitted that the lease to Qantas created a public right of way over APAM’s land to access the Qantas domestic terminal, and that the lease to APAM was subject to these rights. Accordingly, on his case, the lease to APAM did not carry with it the general right to exclude members of the public or to impose restrictions on their entry, even from APAM’s land; as he put it, ‘the right to access the premises, and to control access to the premises, had already been conveyed to Qantas’.

Mr Sheridan also relied on the terms of the APAM lease that required APAM to use the premises as an airport and to develop the airport site consistent with a major international airport having regard to good business practice, which included providing appropriate facilities for the ease of access, expeditious movement and efficient use of the airport site by passengers and other users. He contended that these terms rendered the LDA scheme unlawful.

However, and despite this argument, Mr Sheridan’s position was absolute. He did not contend, for example, that APAM had the power to impose reasonable restrictions on hire car drivers but that the restrictions that it imposed were unreasonable.[11] Instead, he contended that any requirement that hire car drivers like Mr Sheridan carry with them a private identification card was beyond APAM’s power.
[11]This position may have been informed by the fact that it would have been very hard to assert that the LDA scheme was unreasonable. The amounts charged were relatively small, and were offset by the provision of discounted parking rates. LDA holders were also granted access to a special, closer car park that meant that the drivers and their passengers had a shorter distance to walk from the terminals to the cars. And, as Mr Zwanikken, APAM’s emergency planning manager, explained, one of its purposes was to allow APAM to know the people who were spending considerable periods of time at the airport, which assisted with its security. The evidence that was led suggested that it would have been very difficult to establish that the LDA scheme operated in a way that harmed the customer experience at the airport generally.

I do not consider that the leases to Qantas or APAM created a public right of way that prevented APAM from imposing any restrictions on the public’s right to enter and cross its land. In my view, the lease to Qantas gave Qantas tenancy rights over the Qantas domestic terminal, together with a ‘right to use’ other areas not the subject of the demise. The language of the demise clause set out in paragraph 10 above makes it clear that the Commonwealth was giving Qantas those rights, but does not reflect an intention on the part of the Commonwealth to create a public right of way or a right of way enforceable by Qantas’ customers or persons providing services to them. A public right of way is not created absent an intention to do so.[12] To the extent that Mr Sheridan contended that any concurrent lease arrangement creates a proprietary right in persons who are strangers to the leases to enter upon leased land, I reject it. The creation by this document of proprietary rights in such persons, rather than contractual rights in Qantas, would have required clear language.
[12]See, eg, in relation to the need for an intention to dedicate land as a public highway, Anderson v City of Stonnington (2017) 227 LGERA 176, 187–8 [40]–[42] (Warren CJ, Maxwell P, Kyrou JA); Mayberry v Mornington Peninsula Shire Council (2019) 59 VR 383, 387–8 [9]–[10] (Richards J). The intention may be inferred from long use, but that is not the situation here. In light of my conclusion that there was no such intention, it is not necessary to consider what formal requirements, if any, would be required for the creation of such a right and whether they were met in this case. There may have been, for example, a need to identify with some certainty the boundaries of the land over which members of the public had a right of access.

Then, when the Commonwealth entered into the concurrent lease with APAM, APAM was granted tenancy rights in the areas not subject to the demise to Qantas, and APAM took these rights subject to Qantas’ rights under its lease. APAM’s rights were subject to Qantas’ rights, either because the concurrent lease meant that APAM was to be treated as Qantas’ landlord under the Qantas lease,[13] or because APAM took its lease with notice of the terms of the Qantas lease. This meant that if APAM prevented Qantas from being able to use the land and facilities surrounding the Qantas domestic terminal, then it would prima facie be in breach of the contractual obligation owed to Qantas. And, probably, if it denied entry to members of the public to its land to an extent where it thereby, as a matter of practical reality, prevented Qantas from obtaining the benefit of its interest under the Qantas lease, then it would also be in breach of an obligation owed to Qantas. But either way, there would be a liability to Qantas, not a liability to the excluded members of the public. If the rights given to Qantas amounted to an easement, then, again, it would be Qantas who had the right to enforce it.
[13]Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2016] VSCA 95, [26] (Santamaria, Ferguson and McLeish JJA).

Similarly, if APAM imposed restrictions on entry that meant that it was not developing the airport in accordance with Good Business Practice as defined, then it might be in breach of obligations it owed to the Commonwealth under its lease with it. But, again, this would be a liability to the Commonwealth, and not a breach of an obligation owed to members of the public.

Further, if the combination of leases had had the effect of creating a right of access to members of the public akin to a public road, then it would have led to the improbable result that members of the public could not have been excluded even if both Qantas and APAM wanted them excluded.

The better interpretation, in my view, as noted above, is that APAM as lessee had the right to legal possession of its land, with its concomitant right to exclude,[14] subject to contractual obligations owed to Qantas, and contractual obligations owed to the Commonwealth. On this basis, APAM had the right to impose conditions on the entry onto its land, including by imposing as a condition of entry by hire care drivers compliance with the LDA scheme.
[14]See, eg, Western Australia v Ward (2002) 213 CLR 1, 218 [488], 222–3 [501]–[504] (McHugh J); Lewis v Bell (1985) 1 NSWLR 731, 734 (Mahoney JA).

Finally, it is worth noting that there was no evidence to the effect that Qantas considered the LDA scheme to be contrary to its interests or that it had refused its consent to the scheme; the only evidence relating to Qantas’ position was that Qantas was ‘encouraging’ the enforcement by APAM of the LDA scheme inside its terminal.[15]

B.4. If there were a limit to APAM’s power to impose conditions on entry, it would not be absolute as contended by Mr Sheridan

[15]This evidence was given by Mr Zwanikken, APAM’s emergency planning manager.

If I am wrong in this conclusion, then I consider, in any event, that any implied right of access given to members of the public would not be absolute but would be subject to an ability in APAM to impose reasonable restrictions on access to its land. If, as was contended, the right of public access arose as a necessary implication from the Qantas lease, it would only be a right of access sufficient to ensure that Qantas was able to have ‘normal use of, access to and enjoyment of the Premises’. For example, APAM would still be able to close the airport down late at night if the Qantas domestic terminal was not being used, or APAM would be able to eject persons who were loitering at the airport. The LDA scheme would then only be unlawful if it imposed restrictions that were unreasonable, in the sense that they had the effect of denying to Qantas, or perhaps the public, ‘normal use of, access to and enjoyment of the Premises’. Possibly, they would also be unlawful if they effectively meant that APAM was not developing the airport in accordance with ‘Good Business Practice’. But, as noted above, Mr Sheridan’s case depended on any restriction on hire car drivers being unlawful, and he eschewed any consideration of ‘reasonableness’. Consistently with this, no evidence was led to the effect that, for example, the LDA scheme significantly impaired the ability of passengers to obtain driven hire car services to and from the airport.

Accordingly, in my view, the combination of leases did not mean that APAM was unable to require hire car drivers to comply with its LDA scheme as a condition of their entry onto the APAM land.

B.5. Did the legislative and regulatory regime make the LDA scheme unlawful?

Under the Airports Act 1996 (Cth), an ‘airport lease’ is a lease of the whole or a part of an airport site where the Commonwealth is the lessor.[16] Thus, both the Qantas lease and the APAM leases are airport leases within in meaning of that Act. Sections 34 to 34D of that Act permit regulations to be made that affect the right to grant subleases of an airport lease, and ss 35 to 35D permit, in like terms, regulations to be made that affect the right to grant licenses relating to an airport lease. Then, under the Airports Regulations 1997 (Cth), regs 2.04 to 2.11 preclude certain types of leases, and regs 2.12 to 2.19 preclude, in like terms, certain types of licences. The word ‘licence’ is defined to mean ‘a licence relating to an airport lease’.
[16]s 5 (definition of ‘airport lease’).

More specifically, reg 2.12(1) prohibits a licence for a purpose inconsistent with the use of an airport, a licence of premises for prostitution, or a licence that is an ‘airport-management agreement’ unless that licence has been approved by the Minister.[17] Regulations 2.12(2) and (2A) then provide as follows:
[17]‘Airport-management agreement’ is a term defined in the Airports Act 1996 (Cth) s 33(7).

(2)[A] licence of any of the following kinds is prohibited unless the Secretary makes a declaration about the licence under regulation 2.13:
(a) a licence to a licensee that is not:
(i) a constitutional corporation; or
(ii)a bank other than a bank established or operated by a State or Territory; or
(iii)the Commonwealth, or an authority of the Commonwealth;

…
(2A)Despite paragraph (2)(a), a licence to an individual is not prohibited if the licence is for:
(a) a single site retail business; or
(b) a car parking bay.[18]

[18]Emphasis added.

Regulation 2.13 relevantly provides as follows:

2.13 Secretary may declare that specified licence not prohibited
(1) On application by the licensee under a licence to which subregulation 2.12(2) applies, the Secretary may declare, by instrument, that the subregulation does not prohibit the proposed licence.
(2) The Secretary must make a decision on the application within 30 days after the application is made.
(3) In considering whether to make a declaration under subregulation (1), the Secretary must take into account:
(a) the duration of the licence; and
(b) the size of the area to be subject to the licence; and
(c) the terms of the licence.
(4) Before making a decision, the Secretary must be satisfied that, if the declaration is made, the licence will not have the effect of frustrating the objects of the Act.[19]

[19]Emphasis added.

Mr Sheridan contended that the LDA scheme consisted of a series of licences given to authorised drivers, which was prohibited by reg 2.12(2) because the licences were to individuals and had not been approved by the Secretary. APAM contended that the LDA scheme was outside the operation of the regulations because the term ‘licence’, on a proper construction of the regulations, referred to a licence that gave the licensee a right to occupy land, and not to a licence that merely gave the licensee a right to enter the premises.

I agree with APAM. A licence can give a right to enter land, or it can give a right to occupy land. A licence that grants a right to occupy land can appear very similar to a lease. This would be the case if, for example, APAM were to grant a licence to someone to occupy part of its land to use as a shop (whilst retaining for itself its right to legal possession).[20] If the regulations that prohibit subleases did not extend to such licenses, then the effect of the prohibition against subleases could be avoided by the granting instead of carefully-drawn licences.
[20]See, eg, KJRR Pty Ltd v Commissioner of State Revenue [1999] 2 VR 174.

On the other hand, if the concept of ‘licence’ as used in the regulations extended to a licence to a person only to enter the land, then the regulations would be unworkable. Given that APAM had the legal right to possession of its land, any entrant onto its land, to avoid being a trespasser, had to enter pursuant to a licence.[21] Typically, that would be an implied license, but, nonetheless a license. If the word ‘licence’ as used in the regulations extended to a licence to enter, then, potentially, each entrant onto the APAM land would have to apply to the Secretary under reg 2.13, and then wait up to 30 days for the Secretary to declare ‘by instrument’ that that person’s licence to enter was not prohibited. Also, the requirement that the Secretary take into account the size of the area to be subject to the licence reflects an assumption that the license under consideration is a licence to occupy or use an area of land in some way. These matters show that the approval process set out in reg 2.13 was not intended to cover a licence giving an individual person only a right to enter the airport land.
[21]See, eg, Halliday v Nevill (1984) 155 CLR 1.

Further, the regulations that relate to licences mirror, word for word, regs 2.04 to 2.05, which relate to subleases. This is a further indication that the regulations are intended to apply to licences that have similar characteristics to subleases and to prevent persons from avoiding the regulatory regime by entering into licences instead of subleases.

The explanatory memorandum to the Airports Bill 1996 (Cth) and the explanatory statement to the Airports Regulations 1997 (Cth) support my conclusion that the regulations do not prohibit licences to individual persons to enter the APAM land that have not been approved by the Secretary in advance, but are instead directed at regulating licences to occupy land. The explanatory memorandum explained that the ‘restrictions on leases’ were to ensure that neither airport-lessee companies nor airport-management companies, both of which were subject to extensive regulatory control, were able ‘to avoid other provisions of the Bill’. It said that the Bill had ‘provisions to deal with licences … similar to those made … to deal with subleases’. Then, the explanatory statement to the regulations said that they ‘are intended to prevent evasion of the leasing and management rules of the Act by subleasing and licensing arrangements, and also to prevent subleasing and licensing that is not in the public interest’. These support my conclusion that the inclusion of a prohibition against unauthorised licensing in like terms to the prohibition against unauthorised subleasing was intended to prevent parties from avoiding the anti-subleasing provisions by entering into arrangements of similar type but which were, technically, licenses rather than subleases.

Mr Sheridan objected to my relying on the explanatory memorandum and the explanatory statement on the grounds that the criteria for doing so set out in s 15AB of the Acts Interpretation Act 1901 (Cth) were not satisfied.[22] But I consider that the term ‘licence’ where used in the regulations is sufficiently ambiguous in the circumstances to engage s 15AB(1)(b)(i) of that Act. Alternatively, if the ‘ordinary meaning’ of the regulations is as Mr Sheridan contends, then s 15AB(1)(b)(ii) of that Act is engaged. That subsection permits consideration to be given to extrinsic material if the ‘ordinary meaning’ conveyed by the text ‘leads to a result that is manifestly absurd or is unreasonable’. It would be absurd or unreasonable if any entrant onto APAM land had to apply to and obtain a prior declaration from the Secretary that the licence to enter was not prohibited, and it would be unworkable if the Secretary had then to consider ‘the size of the area to be subject to the licence’, when the licence under consideration did not have any area to which it was ‘subject’.
[22]Section 15AB provides that extrinsic material, including explanatory material, may be considered to assist in the interpretation of a provision if, inter alia, the provision is ambiguous or obscure.

In any event, I would have reached the same conclusion even without regard to the explanatory memorandum and the explanatory statement.

Here, APAM did not by the LDA scheme cede any control over leased land or give control over any aspect of the operation of the airport to any other person. For this reason, I do not consider that the Airports Act 1996 (Cth) or the regulations made under it prohibited the LDA scheme.

B.6. Conclusion — the LDA scheme was lawful and Mr Sheridan was a trespasser on APAM’s land

It follows from the above that, in my view, the LDA scheme imposed by APAM was lawful.

Mr Sheridan then submitted that he had not been ‘made’ a trespasser because APAM had not proved that it had authorised any of the persons who interacted with him to withdraw his licence to enter. He also relied on the fact that APAM had prepared formal ‘Notice of Withdrawal of Licence’ documents and considered implementing a formal withdrawal of licence procedure, but no such formal procedure was ever in fact implemented.

However, Mr Sheridan knew at all relevant times that APAM required hire car drivers such as himself to have an LDA if they were to enter onto or remain on the APAM land for the purpose of dropping off or picking up passengers. In about August 2010, he was made aware of the then-new scheme. The ‘general information’ in the document he saw at that time provided:

All commercial vehicles … and their drivers wishing to operate at Melbourne Airport must be authorised by Melbourne Airport by way of a Driver and Vehicle Authority (sticker) issued by Melbourne Airport and are bound by Melbourne Airport Terms and Conditions of use.

On 28 October 2010, Mr Sheridan wrote to Ms Cleary of APAM referring to messages he had left seeking clarification as to the legal basis of the requirement, and advising that until an ‘adequate response’ was received he would continue to enter the airport without an LDA. In January 2011, he received a response from Wayne Murphy of APAM explaining that the power to impose the LDA regime arose from the fact that APAM leased the land. The letter stated:

If you intend to operate a hire car at Melbourne Airport you will need to apply for and obtain a Vehicle Authority and Driver Authority. I look forward to receiving your application.

There was, thereafter, no implied licence for hire car drivers without an LDA to enter APAM’s land for that purpose. Mr Sheridan contended, and I accept that he honestly believed, that the requirement that he have an LDA was unlawful, but he was well aware of the requirement. Accordingly, he was entering onto APAM land to operate as a hire car driver in circumstances where he did not have its express or implied consent to do so. Were there any doubt, this was confirmed by each subsequent interaction he had with APAM when it or its officers sought to enforce the LDA scheme. This, in my view, was sufficient to render him a trespasser at all times when he was on the APAM land and operating his hire car business.[23] It was not necessary for there to be any formal procedure for the withdrawal of ‘his’ implied licence, or any formal authorisation given to any particular persons to withdraw his licence; the implied licence ceased once the LDA scheme was publicised, or at least once Mr Sheridan became aware of it.
[23]Barker v The Queen (1983) 153 CLR 338, 346 (Mason J), 357 (Brennan and Deane JJ); Lipman v Clendinnen (1932) 46 CLR 550; Halliday v Nevill (1984) 155 CLR 1; Morris v Beardmore [1981] AC 446, 464 (Lord Scarman).

This means that APAM and its agents were lawfully entitled to approach Mr Sheridan, to ask him to produce his LDA card, and to direct him to leave. If he refused to do so, APAM or its agents could, if they wished, use reasonable force to eject him.[24]
[24]Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, 619 (Latham CJ), 632, 638–9 (Dixon J).

C. Was it lawful to enforce the LDA scheme within the Qantas domestic terminal?

Mr Sheridan contends that, even if the LDA scheme were lawful in concept, it was unlawful for APAM or its agents to approach him or to seek to enforce the LDA scheme while he was within the Qantas domestic terminal.

Qantas, rather than APAM, had the legal right to exclusive possession of the Qantas domestic terminal. This meant that, although Mr Sheridan was a trespasser while he traversed APAM’s land to reach the Qantas domestic terminal and as he left the Qantas domestic terminal to reach his car and leave the airport, he was not a trespasser on APAM’s land while he was within the Qantas domestic terminal.

However, that does not mean that it was unlawful for APAM or its agents to approach Mr Sheridan while he was within the Qantas domestic terminal. Although Mr Murphy sent an email to Ms Cleary dated 22 July 2011 stating that Qantas had ‘rescinded’ its earlier permission to enter its terminal to question drivers about their LDAs, Mr Zwanikken, who was employed by APAM from June 2012 as its ground transport contracts manager, said that in his time Qantas was ‘encouraging of us to enforce the LDA scheme in their terminal’. In light of this evidence, I conclude that Qantas was aware of the LDA scheme and consented to APAM approaching drivers within its terminal for the purpose of checking that they were complying with the LDA scheme. On this basis, it could not be said that it was unlawful of APAM to approach Mr Sheridan within the Qantas domestic terminal and ask him to produce his LDA.

That said, if APAM imprisoned Mr Sheridan or applied force to him to remove him from the Qantas domestic terminal, that conduct could not be justified on the basis that he was trespassing on APAM’s land.

D. Mr Sheridan and the interactions looked at as a whole

Mr Sheridan impressed me as an honest witness. That is not to say that everything he said should be accepted. There were occasions where his memory conflicted with the recordings he made. Also, he was, I conclude, and as Mr Barton, who used to give work to Mr Sheridan, said, ‘fixated’ on his belief that APAM had no right to impose the LDA scheme. His fixation on what he saw as APAM’s wrongful conduct may have distorted his memory of certain details of particular interactions. It also caused him to act impatiently and with a level of verbal aggression in some of his dealings with APAM or its agents. However, I do not think that he was doing other than his best to be truthful in the evidence he gave.

Although it will be necessary to look at the various individual interactions in some detail, it is not the case that APAM’s agents physically struck Mr Sheridan, or purported to arrest him, or, according to the recordings, sought to intimidate him in the tone or language they used. The recordings made by Mr Sheridan instead suggest that he was not in any way intimidated by the various officials that approached him at the airport. Rather, he assumed a determined and somewhat domineering attitude in many of his interactions with them. He routinely either expressly or by necessary implication threatened the people with whom he was speaking that he would take them to court or see them in court. In this respect, I note that, unsurprisingly, he did not give any evidence to the effect that he ever felt intimidated or physically threatened. Rather, it is apparent that he felt irritated, frustrated and indignant.

E. Was Mr Sheridan falsely imprisoned in the terminals?
E.1. What happened to Mr Sheridan?

Mr Sheridan contended that he was falsely imprisoned in the 1^st, 4^th, 5^th, 7^th, and 9^th to 16^th incidents. Of the 18 incidents, the 8^th to 16^th incidents took place within six years of Mr Sheridan filing the writ.[25] I have made findings in Mr Sheridan’s favour in respect of the 11^th and 13^th incidents, and detail of those incidents is set out in Part F below. Detail of the other incidents is set out in Part Q below.
[25]The writ was filed on 14 November 2018.

The 11^th and 13^th incidents extended to interactions surrounding Mr Sheridan’s car in the car park and warrant separate consideration. However, speaking generally, each incident commenced in a terminal with an officer of the federal police or the VTD or a security organisation retained by APAM approaching Mr Sheridan and asking him to produce an LDA card, which he refused to do. There then followed a discussion where Mr Sheridan explained his view that APAM was not allowed to require him to have one, or to ask him to produce one, and challenged the person speaking to him to justify their right to ask him to produce one. On occasions, the interaction took some minutes. Mr Sheridan often found himself confronted with a number of ‘officials’ in a semi-circle around him.

During the trial, on each occasion after obtaining a description of the interaction, counsel for Mr Sheridan asked Mr Sheridan whether he felt ‘free to go’ during the interaction, or words to that effect. On each occasion, Mr Sheridan answered in the negative. When asked why not, in relation to the first incident, Mr Sheridan answered:

Because I had not been given clearance by the police or the VTD to leave at the time.
…
For want of a better phrase, I’m an old school person: when a police officer approaches you and asks questions and does not give you permission to leave the scene or to say that he’s actually finished with his enquiries, then you are obliged to stand there until such enquiries are completed.

That was, in essence, the only explanation that Mr Sheridan volunteered when asked by his counsel, after giving evidence in relation to each incident, to explain why he felt during that incident that he was not able to leave while being questioned by members of the federal police, the VTD, or private security engaged by APAM.[26]
[26]I note that this explanation was not given in respect of the ninth incident, which involved only a single security officer and no police officers. However, it was given in those circumstances in relation to the 15^th incident, for which there was only a security officer present.

However, at the end of his evidence-in-chief, Mr Sheridan was asked what factors were going through his mind when he was considering whether he was free to leave. Mr Sheridan initially repeated his earlier explanation — that he was brought up to obey and respect the police and that he believed that, if they were making an official enquiry of him, such as to produce a document, he was required to stay there until they had finished their enquiries. He was then asked what he thought would happen if he walked off while they were making those enquiries. To this, he answered:

‘I would be restrained in some shape or form – way, shape or form’.

E.2. Was Mr Sheridan ‘confined’ in the terminals?

In the absence of any physical restraint being placed on him, Mr Sheridan has to show that, by the conduct of the officials towards him, his will was overborne such that he was, for practical purposes, confined and unable to escape. Words accompanied by a threat, express or implied, can constitute a total deprivation of liberty.[27] They will do so if they create in the claimant a justified apprehension that, if he or she does not do as directed, force will be used to compel obedience.[28] It must still be shown that the claimant was in that way being restrained against his or her will, which means that, by reason of the conduct, the plaintiff’s will has been ‘overborne’.[29] Finally, there can be no imprisonment if there is shown to have been available a ‘reasonable means of egress’, even if the plaintiff did not make use of it or hesitated before making use of it.[30]
[27]New South Wales v Exton (2017) 270 A Crim R 182, 188–9 [25] (Basten JA).
[28]Watson v Marshall (1971) 124 CLR 621, 626 (Walsh J).
[29]McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250, 264 [41] (Warren CJ, Nettle and Redlich JJA).
[30]Ibid 265 [43] (Warren CJ, Nettle and Redlich JJA).

An odd aspect of this case is that the alleged false imprisonments took place in circumstances where APAM and its officers were asserting that Mr Sheridan had to leave the airport, and Mr Sheridan was asserting a right to stay at the airport. Accordingly, the mere fact that Mr Sheridan remained at the airport in the presence of his questioners whilst being questioned does not indicate that he felt imprisoned. If anything, it indicates that he felt able to disobey them.

Although each interaction differed in detail, a flavour of many of the interactions is demonstrated by some of Mr Sheridan’s evidence in relation to the 10^th incident. Initially, Mr Sheridan was approached by a security officer, then two more arrived, and then a VTD officer arrived, and then three federal police officers. Then, two employees of APAM arrived, Wayne Murphy and Tania Cleary. Mr Sheridan gave evidence as follows:

And what did you say to them?---Ms Cleary approached me and advised that I was there without lawful reason by [not having] an LDA and that she was going to organise for the police to escort me from the premises if I did not leave the terminal immediately. I refused this request.
And what happened after that?---After that, Ms Cleary and Mr Murphy then stood a short distance away from us, and she then discussed the matter with the senior police officer in attendance.
And what happened then?---After a conversation of a couple of minutes, perhaps a little more, the senior officer has then approached me and advised me that he is under instructions that if I do not follow his orders to leave the terminal immediately, then I would be charged with trespass.
And what happened?---I refused that order and I advised him that basically ‘Go right ahead. Do what you like and if you actually do touch me in any way, I will charge you with assault’.
And where is your customer at this stage?---The customer at this stage had not as yet arrived.
All right. And what happened after this interaction?---The officer appeared to be a little stunned by the response.
Yes?---He then went back and spoke briefly to Ms Murphy regarding the matter, and at that time Ms Murphy then – sorry, Ms Murphy – Ms Cleary, my apologies – came back to me and asked where I was parked. I advised her that I was parked in the public car park area and at about this time the client has appeared.
And what happened then?---Ms Cleary appeared to be also somewhat puzzled about what to do next in the matter. She simply turned around and walked away, as did the Federal police officers and the ACG guards.
And what did you do?---As there was no further interaction there, I simply took my client back out of the terminal and back to the car in the public car park.

I accept that Mr Sheridan found the various interactions irritating, and perhaps distressing. But I do not accept that Mr Sheridan felt overborne by any of the persons who made enquiries of him, or that he was for that or any other reason ‘confined’ by them, in any of the incidents at the terminals. Rather, I consider that he chose to remain at the terminals until such time as his passengers arrived, and that there were no occasions when he wanted to leave, but did not, because he did not feel able to do so. In drawing these conclusions, I have relied on:

(a)the general absence of evidence that those questioning Mr Sheridan sought to apply force to him or threatened to apply force to him. In the sixth incident, there was an implied but vague threat from a federal police officer that he might put Mr Sheridan in a ‘van’, and in the eighth incident there was evidence that a federal police officer grabbed and pushed Mr Sheridan. As noted above, Mr Sheridan has compromised his claims against the Commonwealth in relation to the conduct of federal police officers and he does not contend that APAM is vicariously liable for any intentional torts committed by them. There was no evidence that any employees of APAM, or the security contractors engaged by it, or the VTD officers, applied or threatened to apply force. Indeed, there was no evidence that they ever did anything more at the terminals than ask Mr Sheridan to produce documentation or (on one occasion referred to below) threaten to charge him with trespass.
(b)the impression I formed of Mr Sheridan while watching and listening to him give his evidence. He was a strong-willed and confident person, unafraid of conflict, and determined to assert what he perceived to be his rights. In recounting the incidents, he conveyed a sense that he felt that he had been wronged, but he did not convey any sense that he ever felt afraid, or that if he had tried to leave the presence of those questioning him something bad would happen to him.
(c)the recordings Mr Sheridan made of many of the interactions. They confirm the impression formed above. Mr Sheridan spoke to those making enquiries of him in a strong, assertive tone. He asked them to identify the source of the power to ask him to produce an LDA. On occasions, it was as if he was toying with them — asking what an LDA was and deliberately not producing even his VTD card until they identified the power to ask him for that. He told them that they had no right to request what they were requesting. On occasions, he threatened them with legal proceedings in the event that they did not comply with his demand that they cease asking for the LDA card, or otherwise indicated that he was making the recording so as to gather evidence for legal proceedings he would be bringing. And, on rare occasions, he was rude to and dismissive of them. The recordings also confirm that those questioning Mr Sheridan did not, save for the two matters referred to in para (a) above, make any threats or threaten to use force, or speak to him in an aggressive manner.
(d)the fact that, on each occasion, Mr Sheridan did in fact wait at the terminal until his passenger turned up — he was never forcibly removed or ‘marched’ to his car — and then more or less immediately left for his car with his passenger when his passenger turned up. I consider that, to the extent that the verbal interactions delayed Mr Sheridan at all, they delayed him because he chose to stay and engage in the discussions as to whether or not APAM had the right to require that he produce an LDA, rather than because he felt that force would be used if he did not remain.
(e)the fact that Mr Sheridan did not, in his descriptions of the incidents, volunteer that he felt afraid or confined in any real sense.[31]

[31]And it would have been difficult for him to do so, in light of the recorded conversations.

I do not accept that, if Mr Sheridan left while being questioned, he would have been arrested or force would have been applied to prevent him from leaving, or that Mr Sheridan believed that to be the case. At most, he might have thought that that was a possibility, but not that it was likely. In my view, he must have known that at any time, if he wanted to, he could have just left the airport. In that sense, he always had a reasonable means of egress. But even if he did have that belief, in my view it was not, on the evidence, a belief caused by anything said or done to him by APAM’s agents, and so it would not in any event have been sufficient to amount to a ‘confinement’ for which APAM was responsible.[32]
[32]See, eg, R v O’Donoghue (1988) 34 A Crim R 397, 402, where it was determined that a claimant’s honest but mistaken belief that he was obliged to accompany a police officer to a police station did not mean that the claimant was under compulsion.

E.3. Was any confinement in the Qantas domestic terminal ‘unlawful’?

Given my finding that the LDA scheme was lawful, it follows that Mr Sheridan was a trespasser on APAM’s land and that APAM had the right to ask him to leave. If he did not leave, APAM had the right to use reasonable force to remove him from its land. However, as APAM did not have legal possession of the Qantas domestic terminal, it did not have the right to require that Mr Sheridan comply with the LDA scheme as a condition of entry onto that terminal. Although Qantas consented to APAM and its officers approaching persons within the Qantas domestic terminal, the evidence does not establish that Qantas adopted the LDA scheme in the sense that it made compliance with it also a condition of entry to the Qantas domestic terminal. Accordingly, if APAM had forcibly removed Mr Sheridan from the Qantas domestic terminal, then he would probably would have had a claim against APAM in assault, or possibly in wrongful imprisonment. But, as noted above, APAM did not apply any force to Mr Sheridan inside the Qantas domestic terminal (or anywhere else).

I discuss later in these reasons whether the requests made by APAM were of such a repetitive or other nature that they gave rise to other torts relied on by Mr Sheridan.

F. In the carpark: the 11^th and 13^th incidents

Mr Sheridan contends that APAM trespassed against his vehicle in the course of the 11^th and 13^th incidents, and that he was falsely imprisoned in the course of them. These incidents warrant separate consideration.

F.1. The 11^th incident — 18 February 2013

The 11^th incident took place on 18 February 2013. Of those involved, only Mr Sheridan and Mr Murphy gave evidence. Mr Murphy had no independent recollection of the incident. Having heard Mr Sheridan’s evidence, listened to the recording of part of the interactions, and read Mr Sheridan’s diary note of what happened, I find that the following took place.

In the terminal — Mr Sheridan was waiting for a client in the Qantas domestic terminal when he was approached by two security officers working for ACG, a company engaged by APAM. Mr Sheridan made a recording of at least part of their interaction. Initially, Mr Sheridan told them in a forceful tone to ‘go away thank you’. Then when they asked if they could speak to him, he initially told them ‘no you may not’. The two security officers called over two VTD officers. Mr Sheridan immediately asked for their names, which they gave, and he told them that he was recording the conversation ‘for the purpose of taking evidence’. He then asked for their ‘formal identification’, which they produced. They asked to see an LDA, and Mr Sheridan asserted that because an LDA was issued ‘under a private contract’ it was ‘out of [their] jurisdiction’. Mr Sheridan also asked them to state ‘for the purposes of the recording’ what regulation they were enforcing. The conversation was then interrupted, as Mr Sheridan moved to another carousel to meet his client.

After a short time, the VTD officers again approached Mr Sheridan to continue the discussion, and Mr Sheridan continued to assert that they had no right to question him in relation to the LDA, or any card other than the VTD identification. He told them that, if they wished to take the matter further, ‘then we’ll go to court’. One of the VTD officers indicated that they would accompany him back to his car and ask to see his booking details in his diary. It is a requirement of the VTD that hire car drivers keep certain records of each job in a diary. Mr Sheridan told them that he would not show them his diary and that they had to make a written application to see his diary to ensure that he was ‘not in breach of the Privacy Act’. When they disputed this, Mr Sheridan said: ‘then we’ll go to court on the matter.’ Mr Sheridan told them to expect a ‘formal written complaint’ in addition to his raising the matter with ‘the State Minister’.

The recording reveals that Mr Sheridan was forceful and assertive in his communications to the security and VTD officers. His language was polite, but his tone was assertive to the point of confrontational. The officers acted politely and with patience.

At the vehicle — Mr Sheridan’s car was parked in the car park set aside for drivers with an LDA. The car that Mr Sheridan was driving was not owned by him and the owner, Mr Kanarek, had obtained for it an LVA. However, as Mr Sheridan appreciated, he was not permitted to park there as he did not have an LDA. Surprisingly, he had earlier asserted to the VTD officers that he was allowed to park there because the vehicle had an LVA.

When they arrived at the vehicle, the client took a seat in the back. Mr Sheridan asked his client for her permission to release her booking details to the VTD officers, and she gave it. When he was asked again for an LDA, Mr Sheridan spoke over the officer, telling him to ‘be quiet’, advised him that he had ‘formal written legal advice from a senior Melbourne solicitor’ to the effect that the LDA is issued under a private contractual arrangement, and asked him again to justify his authority, as a ‘State government official’, to ask him to produce such a document. Mr Sheridan did produce what seems to have been certified copies of his VTD identification card and his driver licence.

As this was happening, the other VTD officer touched the car. According to Mr Sheridan’s oral evidence, the officer opened the front car door and reached inside in an attempt to remove the LVA that was stuck to the windscreen. The recording has Mr Sheridan simply telling him not to ‘touch’ the car on several occasions. The officer said he was entitled to inspect the car. Mr Sheridan said that if he removed the LVA he would make a formal complaint and that the officer would be ‘in a bit of strife’. When he was asked to ‘calm down’, Mr Sheridan said ‘by the time my legal representatives have finished with you I suggest you may need actually to look for another job’. Mr Sheridan said in his oral evidence that the VTD officer did then remove the LVA, but the events below suggest, and I conclude, that although the VTD officer touched the car and probably opened the door, he did not in fact remove the LVA.

When asked for his diary, Mr Sheridan then produced his ‘electronic diary’, which was the record of the booking on his phone. There was some discussion about whether this was sufficient. Mr Kanarek, who was nearby, came over and informed Mr Sheridan that the client could not wait any longer, and escorted her from the vehicle. This meant that Mr Sheridan lost the fare and did not get paid for the trip.

Mr Murphy obtains the LVA — At or about this time, Mr Murphy, APAM’s ground transport coordinator, arrived with two security officers. Mr Murphy asked Mr Sheridan to return the LVA. He referred to the terms and conditions, described the LVA as ‘the property of Melbourne Airport’, and asked for it to be ‘returned’. After viewing Mr Murphy’s identification documents, it seems that Mr Sheridan then opened the car door and permitted a security officer to lean in and remove the LVA sticker. As noted above, Mr Sheridan, in his initial oral testimony, had the security officer removing the LVA when he touched the car prior to Mr Murphy’s arrival, but the recording establishes that the LVA was removed after Mr Murphy had arrived and was done so with Mr Sheridan first opening the door to allow it to happen. Mr Murphy informed Mr Sheridan that a parking infringement notice would be sent, to which Mr Sheridan replied: ‘see you in court’.

The federal police officers — After some further discussion about the adequacy or not of his electronic diary with the VTD officers, two members of the federal police appeared. Mr Sheridan, in his oral testimony, had placed the discussion with the police officers and the seizure of his phone as occurring before the arrival of Mr Murphy, but the recording establishes that Mr Murphy arrived before the police officers. One of the police officers seized Mr Sheridan’s phone when Mr Sheridan told him that he was using it to record their conversation. He initially refused to give it back when asked, stating that he was conducting a ‘formal police investigation’ and told Mr Sheridan that if he did not keep quiet, he would have him charged with impeding a police investigation. At some stage after this, he left.

False imprisonment — For the same reasons as set out in Part E above, I am not satisfied that Mr Sheridan was ‘confined’ in the course of this incident by Mr Murphy or the security or VTD officers in the sense necessary for the tort of false imprisonment. Accordingly, this tort is not made out.

Trespass to the vehicle — The terms and conditions on which the LVA was provided to Mr Kanarek as the owner the vehicle required him to ensure that any driver of the vehicle at the airport had an LDA. The terms and conditions permitted APAM to immediately suspend the LVA if the applicant (Mr Kanarek) breached the terms and conditions. Mr Kanarek knew that Mr Sheridan did not have an LDA. Given that he allowed Mr Sheridan to drive the vehicle to and from the airport, Mr Kanarek was in breach of the terms and conditions on which he was provided with the LVA, and accordingly APAM had the right to suspend it. The terms and conditions also provided that the LVA sticker remain the property of APAM, and that if the LVA was suspended or cancelled then the applicant and ‘the Authorised Driver’ must ‘surrender the Authority sticker to [APAM] immediately upon demand’.

Mr Sheridan was not an Authorised Driver, however, as he did not have an LDA. For this reason, it seems to me that, strictly, APAM was required to demand return of the LVA from Mr Kanarek, not from Mr Sheridan, and that APAM was not permitted to enter into the vehicle to obtain it itself at least without first demanding its return from Mr Kanarek. There was no evidence that APAM had demanded the return of the LVA from Mr Kanarek. Accordingly, the touching and opening of the car door by the VTD officer, which was not done with the consent of Mr Sheridan, was done without lawful justification.

APAM submitted that this conduct did not amount to a trespass because the officer did not move or use the vehicle or restrict Mr Sheridan’s use of it.

The essence of the tort of trespass to goods is an interference with another’s possession of that good. It may be that simply touching a good is not enough. But in my view, just as handling or picking up someone else’s chattel can amount to a trespass,[33] opening the door of someone else’s car without lawful justification amounts to a trespass. Opening a car door is an act of the same dimension as moving a more portable chattel. Possession of a car carries with it the right to decide whether or not the doors should be opened. For these reasons, opening the door of someone else’s car is, in my view, an action that interferes with the other’s possessory right and thus amounts to a trespass if done without lawful justification. The matter may be tested this way. Assume that someone repeatedly opened and shut, or repeatedly opened and left open, someone else’s car door without permission. Presumably, a court would be empowered to enjoin that behaviour. This must be because the act amounts to a trespass. This conclusion is also consistent with the fact that any unlawful entry onto land is a trespass to land whether or not it damages the land, and any unlawful touching of a person is a trespass to the person (or battery) even if it does not cause any injury.
[33]Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, 214 (Latham CJ), 225 (Dixon J); Perrett v Williams [2003] NSWSC 381, [529] (Wood CJ). Cf Wilson v Marshall [1982] Tas R 287, 299 (Cox J). The mere transcription of the contents of a document without lawful justification has been held to constitute a trespass to goods: Slaveski v Victoria [2010] VSC 441, [298], [1461] (Kyrou J).

However, when it comes to assessing damages, it is relevant that the officer ceased touching the vehicle when Mr Sheridan told him to and that there was no damage to the vehicle. Further, Mr Sheridan was not prevented from using the car. I am not satisfied that the officer was acting maliciously or in contumelious disregard of Mr Sheridan’s rights. It was an action that took place in circumstances where the parties were in active disagreement about APAM’s right to impose the LDA scheme, where Mr Sheridan was parking in an area in which he was not allowed to park, and where the fact that Mr Sheridan was using the vehicle without an LDA meant that the owner of the vehicle was in breach of the terms and conditions on which the LVA was given to him. I consider that Mr Sheridan is entitled to nominal damages only. The parties accepted that a sum of $1,000 would be an appropriate award for nominal damages only.

I consider in Part N below whether APAM is liable to Mr Sheridan for the tort committed by the VTD officer.

F.2. The 13^th incident — 26 March 2013

The circumstances — Mr Sheridan returned with his clients to his vehicle in the car park set aside for hire car drivers with LDAs. A security officer was standing next to his vehicle. The vehicle was owned by Ms Hatice Seyhan, but her brother Mr Ozluk managed it for her. The security officer asked Mr Sheridan for an LDA. Mr Sheridan objected to this request and they argued about this for some minutes. Then a second security officer and Mr Murphy of APAM joined the scene. Mr Murphy asked Mr Sheridan to give him the LVA sticker from the vehicle. Mr Sheridan refused on the basis that any request had to be made to Mr Ozluk.

The recording commences at a point where Mr Sheridan was seated in the driver’s seat of the vehicle with his clients in the back seats. The driver’s door was open and Mr Murphy was standing in the open doorway in a position that prevented Mr Sheridan from closing the door. Mr Murphy repeatedly asked Mr Sheridan to give the vehicle’s LVA to him. Mr Sheridan repeatedly refused to do so. He asserted that Mr Murphy had to ask Mr Ozluk for it, and, importantly, repeatedly asked Mr Murphy to ‘stand back’. Mr Murphy responded by repeatedly saying words like ‘I will get the permit back’. Both parties were assertive, obviously irritated with each other, but polite in the substance of their communication. When Mr Murphy continued to refuse to ‘stand back’, Mr Sheridan asserted that ‘this is now false imprisonment’, and that Mr Murphy was stopping him from ‘going about his lawful business’. Mr Murphy denied this, and asked a security officer to call the police. Mr Sheridan’s client then intervened, a beep can be heard like the warning beep of a car, and Mr Murphy withdrew.

Mr Sheridan gave evidence that Mr Murphy’s conduct prevented him from leaving. He also gave evidence that one security officer was in front of the car and the other behind the car and that this also prevented him from leaving, although Mr Murphy was the ‘primary cause of the delay’.

Mr Murphy accepted that he was standing between the open door and the vehicle and that in that position the car could not be reversed. However, he said that the security officers were behind the car, and that the car was facing towards the exit with nothing preventing it from moving forwards (presumably, with the door open until the car had cleared Mr Murphy). Mr Murphy also suggested that he withdrew from his position inside the open door not just because the passengers complained, but also because he became aware that Mr Sheridan wanted to leave because he had turned on the ignition which had caused the warning alarm to sound.

I prefer Mr Sheridan’s evidence as to the circumstances of this interaction where it conflicts with that of Mr Murphy. I do not accept Mr Murphy’s evidence that Mr Sheridan could have driven forwards out of the car park despite his acknowledgement that the car had been driven forwards into the park, rather than reversed in.

Mr Murphy gave me the impression that his memory of these events was not good. He said that he had only remembered the circumstances of the incident after listening to the recording, which he did in the witness box. I formed the impression that his evidence that the security officers were behind the car was influenced by the fact that, as he said, their ‘current practice is not to stand in front of the vehicle if there’s a driver in the vehicle seat’, and that ‘no one would do that’, rather than being reflective of an actual memory. The fact that his memories came after being refreshed by listening to the recording is presumably why, although it was put to Mr Sheridan that the security officers took no step to prevent him from leaving, it was not put to Mr Sheridan in cross-examination that he could have simply driven forwards with Mr Murphy standing in the position that prevented the door from being closed. Further, having listened to the recording, it is apparent that Mr Sheridan wanted to leave, and that Mr Murphy wanted him to stay and to give to him the LVA.

False imprisonment — In light of those motives, Mr Sheridan’s superior recollection, Mr Murphy’s agreed positioning inside the open car door, and the recording’s indication that Mr Sheridan was asking Mr Murphy to move so that he could leave, I conclude that Mr Sheridan was ‘confined’ by Mr Murphy’s actions at this time. I am also satisfied that the confinement was unlawful. As discussed with reference to the 11^th incident in Part F.1 above, I consider that, strictly, APAM had to ask Ms Seyhan or Mr Ozluk for the return of the LVA, and it was not lawful for APAM to detain Mr Sheridan (and his clients) because Mr Sheridan insisted that they do so. Accordingly, I conclude that APAM, through Mr Murphy, wrongfully imprisoned Mr Sheridan in this incident.

In those circumstances, it is not necessary for me to determine whether the security officers also imprisoned Mr Sheridan. If they did confine Mr Sheridan, then they did not do so beyond the extent to which Mr Murphy also confined him by preventing him from closing his door and reversing out of the carpark.

The period of detention was a matter of minutes. No physical contact was used, and it took place in the course of a heated argument. Mr Sheridan did not give any evidence to the effect that it caused him any particular distress, and his tone and language used on the recording suggests that it caused him to be irritated and angry, rather than distressed. It took place in circumstances where, I have concluded, Mr Sheridan was operating in breach of APAM’s lawful conditions, and where he was a contributor to the tension that arose. There is no occasion for exemplary or aggravated damages. Again, I consider that Mr Sheridan is entitled to only nominal damages. These I assess, as before, at $1,000.

Following this incident, APAM sought and obtained the LVA sticker from Ms Seyhan or Mr Ozluk. Additionally, Ms Seyhan was issued with a parking infringement notice for stopping in a permit zone.

G. Harassment

Mr Sheridan submitted that this ‘relatively novel’ tort was made out because APAM had engaged in repeated intentional acts that had caused him distress, upset and annoyance, and it was reasonably foreseeable that APAM’s actions would have had that effect. Although he said that this tort had received ‘positive encouragement’ from the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (‘ABC v Lenah’),[34] he acknowledged that there was no authority that established it as a tort in Australia, and he was unable to identify any case in Australia where it has been applied.
[34](2001) 208 CLR 199, 255 [123] (Gummow and Hayne JJ).

I do not feel it necessary to determine whether a tort of harassment should be identified as applying in Australia. This is because I consider that, even if such a tort were to exist, APAM has not engaged in the sort of conduct that would be within its purview.

The interactions between Mr Sheridan and APAM must be seen in context. Mr Sheridan was attending at the airport about 20 times a month over the seven-year period addressed in this proceeding. The evidence establishes that over this time he had unpleasant interactions with APAM (or police or security officers) on 18 occasions. On the vast majority of occasions that Mr Sheridan attended the airport, without an LDA, it seems that he was not confronted at all. Also, this was not a case where APAM came to Mr Sheridan, but rather where Mr Sheridan went to APAM and, on my findings, trespassed on its property. It is difficult to see how the tort could attach to an organisation that was endeavouring to enforce its right to exclude someone from its property, rather than hounding someone in other places. In this respect, I note that any such right of action would, as Gummow and Hayne JJ noted in ABC v Lenah, be associated with unacceptable breaches of another’s right to privacy. Here, on my findings, Mr Sheridan did not have a right to remain at the airport undisturbed, because he was present as a trespasser. The circumstances of this case are very different to those considered in Singapore in Malcolmson v Mehta,[35] where the tort was accepted in circumstances where the defendant ‘harassed’ the plaintiff by repeatedly emailing and calling him and trespassing on his property.
[35][2001] SGHC 309.

Finally, I note that the Victorian legislature has enacted the Personal Safety Intervention Orders Act 2010, which provides for intervention orders in the event of harassment as defined in that Act, and criminal sanctions if intervention orders are breached. Other states have enacted similar legislation.[36] Although the Victorian Act does not give rise to a claim for damages, and in this sense is to be contrasted with the Protection from Harassment Act 1997 (UK), the fact that the legislature has intervened probably makes it less likely that the common law would now recognise a novel tort of harassment, as occurred in England.[37] Ultimately, the acceptance or not of such a tort would probably be a matter for the High Court.
[36]See, eg, Crimes (Domestic and Personal Violence) Act 2007 (NSW).
[37]See Hunter v Canary Wharf Ltd [1997] AC 655, 692 (Lord Goff).

H. Misleading and deceptive conduct under the Australian Consumer Law

Mr Sheridan alleged in his statement of claim that APAM misrepresented to him and to his customers that he[38] was required by law to comply with the LDA scheme while operating at the airport and that by not doing so he was acting unlawfully. He seeks declaratory relief.
[38]For simplicity, I am not differentiating between Mr Sheridan and his company.

For the reasons set out above, I am of the view that Mr Sheridan was required to comply with the LDA scheme and that by not doing so he was acting unlawfully in that he was, in his work as a hire car driver, trespassing when he delivered clients to or collected clients from the airport. Accordingly, I am not satisfied that any such representations were misleading or deceptive. For this reason, the pleaded cause of action is not made out.

In his submissions, Mr Sheridan expanded the argument to contend that APAM made the misleading and deceptive allegation that it owned all of Melbourne Airport and that it had the right to impose the scheme over all of Melbourne Airport, including the Qantas domestic terminal. I accept that, in publishing the LDA scheme, APAM did contend that the scheme applied to the airport generally. The ‘terms and conditions’ stated that the authority permitted the applicant to ‘pick up and drop off pre-booked clients at Designated Areas at the Airport’, and did not clarify that hire car drivers who operated in contravention of the scheme would not be trespassers while they remained inside the Qantas domestic terminal. However, I do not consider this to be misleading and deceptive in any real sense. The reality was that, if a hire car driver was to collect a passenger from the Qantas domestic terminal, he or she had to enter APAM’s land to do so. Accordingly, the only lawful way in which a hire car driver could collect passengers from the Qantas domestic terminal was if they had an LDA and an LVA. In this sense, APAM did have the right, as a matter of practical reality, to apply the scheme to the airport generally, and it was not misleading or deceptive for it to convey this fact.

Lastly, Mr Sheridan also submitted that APAM represented that a failure to comply with the LDA scheme would give rise to criminal consequences (ie the issue of a penalty infringement notice) and, as a consequence, was a crime. No such representation is contained within the terms and conditions, and I was not directed to any particular incident where it is said that such a representation was made. Further, the letter from Mr Murphy, which was received by Mr Sheridan in January 2011, stated:

The Vehicle and Driver Authorities are not issued under specific State and Federal legislation, rather, each Vehicle Authority and Drivers Authority is a private individual contract containing the terms and conditions … upon which the holder of the holder of the Vehicle Authority and Drivers Authority agrees to abide in return for being permitted to operate at the airport premises. These contracts operate independently of any statutory rules, VTD Licences and VTD Driver accreditations.

Whilst Mr Sheridan relies on representations made to others, not only to himself, the above letter makes clear APAM’s stated position at all relevant times — ie that the LDA scheme was a contractual scheme, the enforcement of which would not attract statutory penalties.

I. Unconscionable conduct under the Australian Consumer Law

Mr Sheridan submitted that APAM’s conduct was so far outside the norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience. He relied on APAM’s decision to implement an LDA scheme that imposed fees on drivers in circumstances where: (i) APAM was in a monopolistic position, so that the drivers had little choice but to comply; and then (ii) by ‘conducting thousands of inspections a month, bringing in the AFP and using its unique power to both have authorised persons appointed and make [standard operating procedures] of its own choosing to remove what should have been the protections experienced by hire car drivers’. The ‘protections’ that he says should have been experienced was the requirement in the regulations that the standard operating procedures be designed to ensure that authorised persons carry out their duties ‘in a suitable manner’.[39]
[39]Airports (Control of On-Airport Activities) Regulations 1997 (Cth) s 106BA(3)(a).

The only causes of action I have found proved are the wrongful imprisonment committed by Mr Murphy and the trespass to goods committed by a VTD officer.

Mr Murphy’s job required him to interact with persons such as Mr Sheridan and to enforce the LDA scheme. His conduct in the 11^th incident, which I have concluded amounted to a false imprisonment of Mr Sheridan that gave rise to a liability for nominal damages, was an unauthorised manner of performing an authorised act.[59] Accordingly, APAM is vicariously liable to Mr Sheridan for Mr Murphy’s tort thus committed in the course of and within the scope of his employment.
[59]See, eg, New South Wales v Lepore (2003) 212 CLR 511, 535–6 [40]–[42] (Gleeson CJ).

The question is more complicated with the trespass to goods committed by the VTD officer. The VTD officer was not employed by APAM,[60] and there was no evidence that explained why it was that the VTD officer chose to assist the way he did. The mere fact that the (wrongful) act that he performed was intended to be for the benefit of APAM is an insufficient basis to conclude that APAM is vicariously liable for the performance of that act.[61] In the absence of evidence explaining why the VTD officer chose to assist Mr Murphy and APAM in their desire to regain the VLA and in particular whether he was acting under the direction and control of APAM or Mr Murphy at the time, I am unable to conclude that he did so pursuant to some express or implied agency agreement such that APAM is vicariously liable for his actions.
[60]Although employment by the VTD would not in all circumstances preclude an employment relationship with APAM at the relevant time, the circumstances in which employment may be transferred – for a person to become an employee pro hac vite of another for a particular purpose – are limited. See, eg, Deutz Australia Pty Ltd v Skilled EngineeringLtd [2001] VSC [194] , [99]-[109] (Ashley J). Certainly, there is no basis for such a situation here.
[61]Kondis v State Transport Authority (1984) 154 CLR 672, 692 (Brennan J); Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161, [13] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); Victorian WorkCover Authority v Game (2007) 16 VR 393, [54] (Ashley JA).

P. Loss & damage

The false imprisonment and trespass to the vehicle did not lead to any financial loss. Not only was there no connection shown between these episodes and the decisions of the vehicle owners to withdraw their vehicles, but I am positively satisfied that the vehicle owners did so because Mr Sheridan did not have an LDA and was therefore unable to operate lawfully as a hire car driver at the airport, and not because of any tortious conduct on the part of APAM.

Mr Sheridan did not contend that he suffered any physical or mental injury. He sought damages for the interference to his personal freedom and ‘outrage to his dignity’, including aggravated and exemplary damages, and damages for loss to his business. For the reasons set out earlier, I have concluded that Mr Sheridan is not entitled to aggravated or exemplary damages, and that he is entitled to nominal damages of $1,000 for the tort committed by Mr Murphy.

Q. What happened in the various other incidents?

In total, the plaintiffs rely on 18 incidents of interactions with federal police, VTD and APAM employees and contract security. Of these, there are:

(a) sound recordings, or partial sound recordings, of 10 incidents;[62]
[62]Incidents 5–6, 8, 11–17.

(b) Mr Sheridan’s diary notes of 10 incidents;[63]
[63]Incidents 1–4, 7–12.

(c) parking receipts in respect of 14 incidents;[64]
[64]Incidents 2–4, 6–12, 14–17.

(d) infringement notices in respect of three incidents;[65]

(e) a statutory declaration of Ms Seyhan, a final notice to Ms Seyhan, and a letter from APAM to Mr Sheridan, all in respect of the 13^th incident; and

(f) a written statement of Mr Sheridan in respect of the 18^th incident.

[65]Incidents 1, 11, 13.

The summaries below set out my findings in relation to each incident, save for the 11^th and 13^th incidents, which are referred to in detail in Part F above of these reasons.

First incident — 27 April 2011

The circumstances — Mr Sheridan parked his vehicle (the vehicle owned by Mr Kanarek) at Hanna’s Cafe, which was located on APAM’s land, and walked inside to purchase a coffee. Upon exiting the café, he saw two federal police officers standing by the driver’s door of the vehicle. The officers asked Mr Sheridan why he was parked there and his reason for being at the airport, and requested to view his LDA and diary records for his booking. Mr Sheridan responded that he was under legal advice that there was a question over the legality of issuing LDAs and, accordingly, he did not have one, and that he would not take the matter any further with them. The officers told Mr Sheridan that he was required to have an LDA, and that they would call someone from airport management to come over and order him off the airport. A VTD officer then arrived and stood with the two federal police officers, forming a rough semi-circle around Mr Sheridan, about half a metre away from him. He also asked to see the LDA and diary records. Mr Sheridan repeated his objection to the LDA and refused to show his diary records on the basis that he did not have his client’s permission to release them. He also repeatedly warned the officers that he was there for a booking and that he needed to leave to pick up his client. When asked by counsel why he did not leave to collect the client, he replied that it was because he had not been given clearance by the police or the VTD to leave. When asked why he regarded himself as needing clearance to leave, Mr Sheridan said:

For want of a better phrase, I’m an old school person: when a police officer approaches you and asks questions and does not give you permission to leave the scene or to say that he’s actually finished with his enquiries, then you are obliged to stand there until such enquiries are completed.

The officers advised Mr Sheridan that he would be issued with infringement notices, and then walked away. The interaction lasted between 30 to 40 minutes.

At some point during the interaction, it became clear to Mr Sheridan that he was going to miss his booking. As such, he made a telephone call to Mr Kanarek to request that he organise another driver to collect the client.

Following the incident, Mr Sheridan and Mr Kanarek each received an infringement notice under s 158(3) of the Transport (Compliance and Miscellaneous) Act 1983[66] for operating outside of licence conditions by failing to record all relevant details of the booking in a diary. Mr Sheridan made inquiries with the VTD and subsequently notified civic compliance that he wished to dispute the infringement notice, which was eventually withdrawn. Mr Sheridan does not dispute the legitimacy of the VTD’s licencing scheme.
[66]The section has since been repealed/replaced.

Mr Sheridan also lodged a formal complaint with the federal police, via an online complaint portal, in relation to the conduct of one of the officers in requesting to view Mr Sheridan’s LDA. By response, Mr Sheridan received a letter from the federal police aviation complaint management team, dated 1 July 2011, which stated that the matter had been investigated, that the complaint was allocated a finding of ‘not established’, that the federal police officers acted appropriately in requesting a copy of the LDA, and that ‘witnesses confirm that at no time was there any harassment involved in [the officers’] requests for the relevant paperwork’.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the police officers or the VTD officer in this exchange.

Second incident — 13 June 2011

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by a federal police officer, who asked to see his LDA. Mr Sheridan provided his driver licence and VTD accreditation, but disputed the officer’s request to view his LDA and diary records.

Three other federal police officers, who were standing nearby, came over. One of them made further requests for the LDA and diary records. When Mr Sheridan refused, the officer asked Mr Sheridan to return with him to Mr Sheridan’s vehicle, which was parked in the multilevel public car park, so that he could study his VTD hire car conditions. After initially objecting, Mr Sheridan returned to his vehicle, accompanied by the four federal police officers, where they spent another 10 to 20 minutes arguing over the LDA and diary notes. The officers inspected Mr Sheridan’s hire car conditions before leaving, and Mr Sheridan returned inside to collect his clients.

Mr Sheridan lodged another formal complaint with the federal police and received a similar response stating that the officer acted appropriately and no further action would be taken.

Observations and/or findings — Mr Sheridan does not contend that he was falsely imprisoned in this incident.

Third incident — 14 June 2011

The circumstances — Mr Sheridan was approached in the Virgin terminal by two federal police officers, who asked to see his LDA. Mr Sheridan again responded that he had legal advice that he was not required to have an LDA. One of the officers ordered Mr Sheridan to leave the terminal immediately and wait for his client out in the forecourt, which Mr Sheridan did. The client was brought outside to him by another driver and they walked back to the car park, with the officers following nearby, and drove away.

Observations and/or findings — Mr Sheridan does not contend that he was falsely imprisoned in this incident.

Fourth incident — 20 September 2011

The circumstances — Mr Sheridan was again approached by two federal police officers, this time in the international terminal, and asked to display an LDA. When Mr Sheridan refused, one officer directed him to return to his parked vehicle so that the officers could inspect his hire car terms and conditions. They did so. Upon returning to the terminal with the officers, Mr Sheridan was approached by Mr John Acling, an airport officer, who asked Mr Sheridan to leave the terminal immediately or be dealt with by the officers. At around the same time, Mr Sheridan’s client arrived and they left the terminal together.

Observations and/or findings — Although Mr Sheridan complied with the direction of the federal police officer to accompany them back to his parked car, I do not consider that Mr Sheridan was relevantly ‘confined’ in this incident.

Fifth incident[67] — 18 July 2012

[67]This is the first incident for which there is a sound recording. It was recorded by Mr Sheridan on his mobile phone.

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by two VTD officers, who asked to see his LDA. When Mr Sheridan refused, the officers called for two federal police officers to attend, who also requested to see his LDA and discussed identification requirements with him. Mr Sheridan’s client arrived and there followed a short period of discussion, following which Mr Sheridan left with his client.[68]
[68]After this, two VTD officers followed Mr Sheridan back to the car park and made further requests. This is not pleaded though, and is not alleged to constitute false imprisonment. It was led just for timing.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the police officers or the VTD officers in this exchange.

Sixth incident — 3 August 2012

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by two federal police officers, who requested to see his LDA. Ms Wendy Duke, the Qantas Duty Manager, also attended, instructing Mr Sheridan to leave the terminal on multiple occasions as he did not have an LDA. Ms Duke also made a comment to one of the federal police officers that they should ‘call in the van’. When Mr Sheridan’s client arrived, one of the officers indicated that Mr Sheridan was free to leave and that he ‘was lucky that the van was not available’.

Observations and/or findings — Mr Sheridan does not contend that he was falsely imprisoned in this incident. It is noteworthy that on this occasion a representative from Qantas directed Mr Sheridan to leave the terminal because he did not have an LDA. This is further material that suggests that Qantas gave permission to APAM to approach hire car drivers within the Qantas domestic terminal to question them about compliance with the LDA scheme.

Seventh incident — 21 August 2012

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by two VTD officers, who requested to see his LDA. The officers were inspecting the LDAs of the line of drivers present. Mr Sheridan refused, disputed the request, and asked the officers for their identification. He provided them with his VTD identification. After discussing the LDA matter with Mr Sheridan for a short time, the officers moved on.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the VTD officers.

Eighth incident — 15 November 2012

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by two federal police officers, who requested to see his LDA. Mr Sheridan refused and disputed the request. The discussion became heated and, at one stage, an officer grabbed Mr Sheridan with his left hand and pushed him towards the exit and against the barrier. Mr Sheridan said twice, ‘Do not touch me, officer’, to which the officer responded, ‘Let’s go right now’. Mr Sheridan was told that if he did not leave the premises, he would be forcibly removed. Another federal police officer also attended and spoke to Mr Sheridan, who deposed that he did not regard himself as free to leave as he was reporting an assault to one of the other officers regarding the interaction with the officer who pushed him. Following this, Mr Sheridan left with his clients.

Later that day evening, Mr Sheridan lodged an online complaint via the federal police portal. He received a letter dated in April 2013, which referred to a report of excessive force and stated a final finding of ‘Not Established’.

Observations and/or findings — Mr Sheridan does not seek to make APAM liable for the intentional torts committed by members of the Australian federal police. He does not contend that he was falsely imprisoned in this incident. This is the first incident that is within six years of the date of commencement of these proceedings.

Ninth incident — 27 December 2012

The circumstances — Mr Sheridan was approached in the Virgin domestic terminal by an ACG security officer, who asked to see his LDA. Mr Sheridan refused, and there was some brief discussion. Mr Sheridan’s client arrived shortly thereafter and they left the terminal.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the ACG security officer.

Tenth incident — 8 February 2013

The circumstances — Mr Sheridan was approached in the international terminal by an ACG security officer, who asked to see his LDA. When Mr Sheridan refused, the officer said that he would call in the federal police and the VTD. Two further ACG officers arrived, as did three federal police officers, a VTD officer and two APAM employees, Mr Murphy and Ms Cleary. Ms Cleary told Mr Sheridan that, as he did not have an LDA, he was there without lawful reason, and she would organise for police to escort him from the premises if he did not leave immediately. Mr Sheridan refused to leave. One of the federal police officers advised Mr Sheridan that he would be charged with trespass if he did not leave. Again, Mr Sheridan refused to leave. Shortly thereafter, Mr Sheridan’s client arrived and they left the terminal for the car park.

Mr Sheridan received a letter signed by Mr Murphy and dated 15 February 2013, referring to the 8 February 2013 incident.[69] The letter stated that, because Melbourne Airport is private property operated by APAM, APAM may warn hire car operators who do not have a valid LDA and LVA that they no longer have the right to enter the airport. Entry on the airport thereafter would constitute trespass under the Summary Offences Act 1966. The letter then invited Mr Sheridan to apply for and obtain an LDA and LVA.
[69]The letter also refers to a previous letter sent to Mr Sheridan in December 2010.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the various persons who interacted with him in this incident. This is a good example of the irony noted that, in a false imprisonment case, the defendant was trying to get the claimant to leave, but the claimant was asserting a right to remain.

Twelfth incident — 9 May 2013

The circumstances — Mr Sheridan was approached in the Virgin domestic terminal by two ACG security officers, who asked to see his LDA. When Mr Sheridan refused, they said they would call in the federal police. Three federal police officers arrived a short time later. Mr Sheridan handed to one of the officers a solicitor’s letter, which contained the advice that the LDA scheme was unlawful, and said that he would just move to one side so that his client could see his sign. The officer responded: ‘You can just wait until we’ve read the letter and then you can move to wherever you want.’ At some point during discussions, Mr Sheridan’s client arrived and indicated that she was anxious to leave. Mr Sheridan passed this on to the federal police officers, and then left the terminal with his client.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the ACG officers. Further, notwithstanding the fact that the federal police officer gave a direct command to Mr Sheridan in this incident to ‘wait’ while they read the letter he had handed to them, I do not consider that this amounted to a ‘confinement’ in the relevant sense. I do not accept that, if he had wanted to, Mr Sheridan could not have left the terminal or the presence of the officers. Nor do I accept that he thought that if he had tried to leave the terminal or the immediate vicinity, force would have been used to restrain him. In any case, Mr Sheridan did not pursue his claims against the Commonwealth.

Fourteenth incident — 4 June 2014

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by an ACG officer, who asked to see his LDA. Mr Sheridan refused and disputed the officer’s authority to make the request. His client arrived, and they left for the public car park. The ACG officer accompanied them. There was some further discussion at the car park, during which Mr Sheridan once referred to the ACG officer as ‘scum’, before leaving with his client.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the ACG officer.

Fifteenth incident — 20 March 2015

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by a security officer, who asked to see his LDA. Mr Sheridan refused and swore at the officer in strong terms. When Mr Sheridan’s client arrived, he left with his client for the car park. The officer followed Mr Sheridan and his client to the car park, where he checked Mr Sheridan’s identification, following which Mr Sheridan left with the client.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the security officer.

Sixteenth incident — 3 November 2016

The circumstances — Mr Sheridan was approached in the Qantas domestic terminal by a security officer, who asked to see his LDA. Mr Sheridan refused. The client did not appear, so Mr Sheridan called the booking company, who instructed him to wait for the next flight to arrive in case the client had missed her scheduled flight. A second security officer arrived and also asked to see Mr Sheridan’s LDA. Mr Sheridan invited the security officers to call in the federal police so he could discuss the matter with them.

Three federal police officers were called in. One of them asked Mr Sheridan about the dispute and viewed his identification. During this conversation, Mr Sheridan received a call from the booking company to say that because the client had not arrived he could leave, which he did shortly after.

Observations and/or findings — For the reasons set out in the body of the reasons, I do not consider that Mr Sheridan was relevantly ‘confined’ by the conduct of the officers who interacted with him.

Seventeenth incident — 17 November 2016

The circumstances — Mr Sheridan was approached in the international terminal by a security officer, who asked to see his LDA. Mr Sheridan refused and disputed the request. At one point, he again referred to the officer as ‘scum’. Mr Sheridan deposed that, by this stage, ‘it was becoming the same repetitive boring situation with minor alternations’. After discussion lasting less than three to four minutes, the security officer left.

Observations and/or findings — Mr Sheridan does not contend that he was falsely imprisoned in this incident.

Eighteenth incident — 11 June 2018

The circumstances — Mr Sheridan was collecting two clients in the Qantas domestic terminal when he noticed that a number of hire care drivers were touting inside the terminal.[70] As he was leaving with the clients, Mr Sheridan brought this to the attention of two nearby federal police officers. The officers informed Mr Sheridan that it was a State-based issue and therefore had nothing to do with them. They then asked to see Mr Sheridan’s LDA. Mr Sheridan refused and disputed the request, instead showing the federal police his VTD identification, before leaving shortly thereafter.
[70]It is an offence to engage in ‘touting’: Commercial Passenger Vehicle Industry Act 2017 (Vic) s 267B.

Mr Sheridan lodged another online complaint after this incident, relating to the federal police officers’ request to see his LDA.

Observations and/or findings — Mr Sheridan does not contend that he was falsely imprisoned in this incident.

R. Conclusion & proposed orders

In light of the findings set out above, it would be appropriate to:

(a) order that APAM pay damages to Mr Sheridan in the amount of $1,000; and

(b) dismiss the claims by the second plaintiff.

I have already ordered by consent that the claims by each plaintiff against the Commonwealth be dismissed.

I will hear the parties on the form of the orders to be made, including on the form of any declaration that should be made, and on the question as to whether it is appropriate to make an order restraining Mr Sheridan from entering onto and engaging in commercial hire car operations at the airport without an LDA and LVA. In this respect, I note my preliminary view that such an order may not be required, given that Mr Sheridan’s refusal to obtain an LDA was, I have found, consequential upon an honest belief held by him, and informed by legal advice received by him, that the LDA scheme was unlawful.

SCHEDULE OF PARTIES

BETWEEN

ANTHONY JAMES SHERIDAN	First plaintiff and first defendant by counterclaim
ACCIDENT BY DESIGN PTY LTD (ACN 136 691 839)	Second plaintiff and second defendant by counterclaim
– and –
AUSTRALIAN PACIFIC AIRPORTS (MELBOURNE) PTY LTD (ACN 076 999 114)	First defendant and plaintiff by counterclaim
COMMONWEALTH OF AUSTRALIA	Second defendant

[2021] VSC 440

28 July 2021