TCN Channel Nine Pty Ltd v Anning - [2002] NSWCA 82

No judgment structure available for this case.

Reported Decision:
(2002) 54 NSWLR 333
(2002) Aust Torts Reports 81-649

New South Wales

Court of Appeal

CITATION: TCN CHANNEL NINE PTY LIMITED v HENRY ALFRED ANNING [2002] NSWCA 82

FILE NUMBER(S): CA 40232/01

HEARING DATE(S): 21/11/01

JUDGMENT DATE:
25 March 2002

PARTIES :

TCN Channel Nine Pty Ltd (Appellant)
Henry Alfred Anning (Respondent)

JUDGMENT OF: Spigelman CJ at 1; Mason P at 191; Grove J at 192

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 70238/98; DC 3218/00

LOWER COURT
JUDICIAL OFFICER : English DCJ

COUNSEL: B R McClintock SC / J Sleight (Appellant)
S Littlemore QC / N Adams (Respondent)

SOLICITORS: Gilbert & Tobin (Appellant)
Priority Legal Services (Respondent)

CATCHWORDS: TORTS - trespass to land - whether implied licence to enter - whether express licence to enter - where journalist and cameramen entered land with cameras rolling - scope of damages - consequential damages - whether damages for personal injury (mental trauma) recoverable - exemplary damages - whether necessary to separately identify amount - aggravated damages - TORTS - trespass to land - expert evidence - whether open to accept evidence - whether absence of cross-examination precluded acceptance - whether inadequate reasons for preferring evidence

LEGISLATION CITED: Environmental Offences and Penalties Act 1984
Evidence Act 1995
Supreme Court Act 1970

CASES CITED:
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 76 ALJR 1
Adams v Kennedy (2000) 49 NSWLR 78
Allsop v Allsop (1860) 5 H & N 534 at 536; 157 ER 1292
Anderson v Buckton (1719) 1 Strange 192; 93 ER 467
Anderson v Fairfax (1883) 4 NSWR 183
Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35
Attorney-General v Hewitt [2000] 2 NZLR 110
Baker v Bolton (1808) 1 Camp 493; 170 ER 1033
Barker v The Queen (1983) 153 CLR 338
Barker v The Queen (1994) 54 FCR 451
Bennett v Allcott (1787) 2 Tr 166; 100 ER 90
Bond v Kelly (1873) 4 Australian Jurist Reports 153
Bracegirdle v Orford (1813) 2 M & S 77; 105 ER 311
Bruce v Rawlins (1770) 3 Wils KB 61; 95 ER 934
Brunner v Williams [1975] Crim LR 250
Bunyan v Jordan (1936-1937) 57 CLR 1
Burdett v Abbot (1811) 14 East 1; 104 ER 501
Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762
Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd [1982] 2 NSWLR 852
Coco v The Queen (1993-1994) 179 CLR 427
Daubney v Cooper (1830) 10 B & C 830; 109 ER 657
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Ellison v L [1998] 1 NZLR 416
Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169
Entick v Carrington (1765) 2 Wils 275; 95 ER 807
Environment Protection Authority v Anning (1998) 100 LGERA 354
Gray v Motor Accident Commission (1998) 196 CLR 1
HG v The Queen (1999) 197 CLR 414
Halliday v Nevill (1984) 155 CLR 1
Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584
Henry v Thompson [1989] 2 Qd R 412
Hillier v Lucas [2000] SASC 331
Hogan v A. G. Wright Pty Ltd [1963] Tas SR 44
Huxley v Berg (1815) 1 Stark 98; 171 ER 413
Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR(NSW) 311
Janvier v Sweeney [1919] 2 KB 316
Johnstone v Stewart [1968] SASR 142
Lamb v Cotogno (1987) 164 CLR 1
Lee v Kennedy [2000] NSWCA 153
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457
Lippl v Haines (1989) 18 NSWLR 620
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mayfair Ltd v Pears [1987] 1 NZLR 459
Merest v Harvey (1814) 5 Taunt 442; 128 ER 761
Morgan v Tame (2000) 49 NSWLR 21
Morris v Beardmore [1981] AC 446
NRMA Insurance Ltd v Tatt (1989) 92 ALR 299
Nevill v Halliday [1983] 2 VR 553
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 76 ALJR 163
Papps v Police (2000) 77 SASR 210
Pettitt v Dunkley [1971] 1 NSWLR 376
Piglowska v Piglowski [1999] 1 WLR 1360
Pollack v Volpato [1973] 1 NSWLR 653
Pritchard v Long (1842) 9 M & W 666; 152 ER 281
Plenty v Dillon (1990-1991) 171 CLR 635
Plenty v Dillon [1997] SASC 6372
R v Marylebone Magistrates Court ex parte Amdrell Ltd [1998] EWHC Admin 322; [1999] Env LR D11
Robson v Hallett [1967] 2 QB 939
Russell v Corne (1703) 2 Ld Raym 1031; 92 ER 185
Sanders v Snell (1997) 73 FCR 569
Sanders v Snell (1999) 196 CLR 329
Semayne's Case (1604) 5 Co Rep 91a; 77 ER 194
Singh v Smithenbecker (1923) 23 SR(NSW) 207
Svingos v Deacon [1971] 2 SASR 126
T v Medical Board of South Australia (1992) 58 SASR 382
TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720
Todorovic v Moussa [2001] NSWCA 419
Uren v John Fairfax & Sons Pty Ltd (1965-1966) 117 CLR 118
Wasson v California Standard Co (1964) 47 DLR (2d) 71
Waters v Maynard (1924) 24 SR(NSW) 618
Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71
Wilkinson v Downton [1897] 2 QB 57
Willcox v Kettell [1937] 1 All ER 222
Wilson v Layne (1999) 526 US 603
Wormald v Cole [1954] 1 QB 614
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448

DECISION: Parties to bring in short minutes to reflect reasons

- 54 -IN THE SUPREME COURT

CA 40232 of 2001

SPIGELMAN CJ
MASON P
GROVE J
Monday 25 March 2002

TCN CHANNEL NINE PTY LIMITED v HENRY ALFRED ANNING

Mr Anning (the Respondent) had a considerable quantity of tyres, estimated at 70,000, on his rural property. The Environment Protection Agency (EPA) planned to conduct a search on the property with a view to determining whether environmental offences had occurred. The EPA invited a reporter and cameramen of “A Current Affair”, a programme produced by TCN Channel 9 Pty Limited (the Appellant), to accompany their officers. The Appellant entered the Respondent’s property with cameras rolling and confronted the Respondent. The Appellant was distressed and subsequently suffered mental trauma. The trial judge found that the Appellant’s conduct constituted a trespass and awarded $100,000 plus interest, the single sum representing general, aggravated and exemplary damages.

Held

per Spigelman CJ, Mason P and Grove J agreeing
The Appellant’s conduct did constitute a trespass to land.

A. Implied Licence to Enter
There was no licence to enter and film arising from the fact that the Respondent had not locked the gate. Alternatively, the Appellant entered the property for a purpose for which it knew or understood the Respondent would not consent. There was an implied licence for persons to enter land for the purpose of requesting permission to film. The Appellant did not request, and had no intention of requesting, permission. Its entry was outside the implied licence. Plenty v Dillon (1990-1991) 171 CLR 635; Halliday v Nevill (1984) 155 CLR 1; Barker v The Queen (1983) 153 CLR 338; Coco v The Queen (1993-1994) 179 CLR 427; Robson v Hallett [1967] 2 QB 939; Brunner v Williams [1975] Crim LR 250; TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 applied. Inglis Electrix Pty Ltd v Healing(Sales) Pty Ltd (1967) 69 SR(NSW) 311; Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457; Morris v Beardmore [1981] AC 446; ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, 76 ALJR 1; Anderson v Fairfax (1883) 4 NSWR 183; Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169; Attorney-General v Hewitt [2000] 2 NZLR 110 discussed.

B. Express Licence
There was no express licence to be on the land that authorised the conduct of the Appellant.

C. Scope of Damages
Consequential damages for trespass, an intentional tort, are available where the damage alleged is the “natural and probable consequence” of the conduct comprising the trespass. Personal injury, including mental trauma, was not, in the circumstances of this case, recoverable under this test. Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69, 76 ALJR 163 applied. Huxley v Berg (1815) 1 Stark 98, 171 ER 413; Wormald v Cole [1954] 1 QB 614; Bunyan v Jordan (1936-1937) 57 CLR 1 discussed. Plenty v Dillon [1997] SASC 6372 doubted.

D. The Expert Evidence
It was open to the trial judge to accept the expert evidence tendered by the Respondent concerning the Respondent’s psychiatric injury. Despite many defects, the evidence satisfied s79 of the Evidence Act 1995. HG v The Queen (1999) 197 CLR 414; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 referred to.

The fact that counsel for the Respondent did not cross-examine the Appellant’s expert did not require the trial judge to accept that evidence.

The trial judge failed to give adequate reasons for preferring the evidence of the Respondent’s experts.

E. Exemplary Damages
The trial judge erred by failing to separately identify the amount awarded for exemplary damages. Uren v John Fairfax & Sons Pty Ltd (1965-1966) 117 CLR 118; Gray v Motor Accident Commission (1998) 196 CLR 1; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448; Lee v Kennedy [2000] NSWCA 153; Adams v Kennedy (2000) 49 NSWLR 78; Henry v Thompson [1989] 2 Qd R 412 discussed. Lamb v Cotogno (1987) 164 CLR 1; Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd [1982] 2 NSWLR 852 referred to. Johnstone v Stewart [1968] SASR 142 disapproved.

Furthermore, the trial judge based the award of exemplary damages on a finding of fact that was not open.

F. Aggravated Damages
Reassessing damages on appeal: the Respondent is entitled to damages for trespass and aggravated damages. The Respondent should not, in all the circumstances, be awarded exemplary damages.

Orders

CA 40232 of 2001

SPIGELMAN CJ
MASON P
GROVE J

Monday 25 March 2002

TCN CHANNEL NINE PTY LIMITED v HENRY ALFRED ANNING

Judgment

1 SPIGELMAN CJ: This is an appeal from a judgment of English DCJ in which her Honour found that the Appellant had committed the tort of trespass to land. Her Honour awarded $100,000 plus interest by way of damages. The single figure included general, aggravated and exemplary damages. The Appellant operates a television network. The proceedings arose from events that occurred when a television journalist and camera crew entered a property leased by the Respondent and filmed various matters on the property. The Respondent’s use of the property and the events of the day were subsequently the subject of a broadcast by the Appellant on its programme “A Current Affair”.

2 The Respondent’s proceedings relied only on the tort of trespass to land, pleaded as follows:

“On or about the 10th November 1995 the Defendant through its servants and agents broke into and entered the real property without any lawful authority and remained thereon for a period of time before exiting the real property.”

3 Her Honour found:

“I am satisfied that the defendant trespassed from the moment its agents entered his land.”

Factual Background

4 The Respondent was the legal occupier of 92 acres, most of which was bushland, at Wyee, New South Wales. The Respondent lived alone on the property. The property was surrounded by a four strand barbed wire fence. There were two steel gates in the fence. They could be locked. On the gates were signs. The content of those signs is a matter of dispute between the parties to this appeal.

5 The Respondent lived in a caravan that was situated on the property. The caravan was about five hundred metres from the front gate. The Respondent was a tenant of a company that owned the land. A residential tenancy agreement recorded that the land was to be used by the Respondent “for the purpose of storing vehicles and trailers as well as restoring vintage cars and motor bikes”. In fact the Respondent had built a motor cycle track on the property. The track was constructed with second-hand tyres. It was 1.68 kilometres long. It was in use for the purpose of training young motor cyclists. Such people came onto the property for the purpose of using the track.

6 The property was also used for the storage of used tyres. The Respondent purchased used tyres. The tyres were delivered to the property by truck. At the relevant time the Respondent had been receiving at least one thousand tyres every week. Some of the tyres could be reused, of those, some were resold by the Respondent. Some of the tyres could not be used again. The Respondent used some of those tyres in the construction of the motor cycle track. There were tyres stacked at various places on the property. On one estimate there were about 70,000 tyres on the property.

7 The presence of the tyres on the property was of concern to the Environment Protection Authority (EPA). The EPA had been watching the road near the property. Employees of the Appellant had, with the EPA, also been watching that road. One of the Appellant’s employees was Ms Tara Brown, a television journalist. On 10 November 1995, she was accompanied by a camera crew and was waiting near the Respondent’s property. Officers of the EPA gave a recorded interview to Ms Brown about the nature of the Respondent’s activities in relation to the tyres. They indicated that the EPA was waiting for a delivery of tyres to arrive by truck from Sydney, upon which event the EPA would ‘raid’ the property.

8 At about seven o’clock on the morning of 10 November the Respondent drove his car from the caravan to the front gate of the property. The gate was locked. A truck bearing a load of used tyres arrived at the gate of the property. The delivery was by prior arrangement. The Respondent unlocked the gate and the truck entered the property. The gate was not locked behind the truck. The Respondent drove his car back to the site of his caravan. The truck was also driven to that general vicinity.

9 After the Respondent’s car and the truck had decamped from the gate, a number of vehicles containing persons employed respectively by the EPA, the Lake Macquarie City Council, the New South Wales Police Service and the Appellant, travelled through the gate and onto the property.

10 In his evidence in chief the Respondent said that he had begun to sort the newly arrived tyres when a helicopter appeared overhead at an elevation such that the trees were “blowing around everywhere”. The Respondent said he then saw Mr Muir, an officer of the Lake Macquarie City Council, and “four cameramen” at a distance of “fifty feet”. The Respondent knew Mr Muir but did not know any of the cameramen. The Respondent gave evidence that the cameramen had video cameras “held up in front of themselves … [a]t shoulder height”. He further testified that the cameras were being pointed towards him. The video footage that was in evidence at the trial demonstrates that the Respondent was being filmed at this stage.

11 Her Honour made the following findings based on the Respondent’s evidence:

“A conversation took place between Mr Muir and the plaintiff. This conversation took place in the presence and the hearing of the photographers. The plaintiff alleges that those photographers were uninvited. The plaintiff says that he said to Mr Muir, ‘Who are they?’ pointing to the cameramen. Mr Muir replied, ‘They are the media.’ The plaintiff immediately said to the cameramen, ‘Get off the property I don’t want you here.’ At that stage the cameras were pointing towards him. The cameras had been held at shoulder height. He spoke to them in a loud voice. This conversation took place 500 metres from the gate in Schofield Road. At the time the conversation took place with Mr Muir about the tyres the plaintiff also noticed that there were police nearby.

The plaintiff then walked with Mr Muir to a car which he thought belonged to Mr Muir. He had been with Mr Muir for two or three minutes when he saw a woman. He spoke to her and said, ‘Who are you?’ She said, ‘We are from ACA, we are here to do a story relative to the tyres.’ The plaintiff could not recall if she said anything about television. She then identified herself saying, ‘I am Tara Brown of ‘A Current Affair’ and we want to do a story on the tyres.’ The plaintiff says he replied, ‘Hang on, I have some statements to make in regard to this raid and I will tell you something that will blow the lid off this.’

He says it was his intention to wait until the raid had finished. He had in mind discussing it after he knew what the outcome of the raid by Mr Muir would be. He wanted to speak with Muir before he made any statements to her. Miss Brown said, ‘We want to do a story now’, and the plaintiff says he replied, ‘I want ACA to do a deal in relation to that.’

However, when she indicated that she wanted to do the story then, he got mad and replied, ‘I just want you to go.’ He was angry at her insistence to do the story then and she replied, ‘Well we will go.’

Mr Terry Muir is alleged to have said, ‘If you want to have them go there is the police.’ At the time this conversation took place the plaintiff says that there was a cameraman behind Miss Brown pointing a camera in his direction. He felt most annoyed and angry when he saw Miss Brown and the cameraman. He moved towards the police and he said to Miss Brown, ‘There will be trouble about this and this is not the end of it.’ She replied, ‘What kind of deal?’ But, prior to that conversation, she had agreed she would leave.

There was a conversation about the matter not going to air. It was his intention that nothing go to air, not just any discussions about a deal that may have been made between him and Ms Brown.

As far as the plaintiff knew after that Ms Brown left. He turned his back and he did not see her again. He says he walked towards Terry Muir to do the interview with him. He was engaged with Mr Muir for some hours. Mr Muir did not leave the property until 3.30pm.”

12 Her Honour concluded:

“There is no evidence that the defendant did not leave immediately after those conversations took place. There is no evidence of the sequence of events of the filming and no safe inference can be drawn from the manner in which the program has been put together.”

13 During his Cross-Examination, the Respondent gave the following evidence:

“Q. Now if we go to the day of the raid, you opened the gate to let a truck in?

A. Yes.

Q. And you did not lock the gate after that did you?

A. That’s right.

Q. And then you moved away from the gate?

A. Yes.

Q. And the gate was left open?

A. Yes.

Q. And then the first time that you saw Tara Brown she had a cameraman with her didn’t she?

A. What?

Q. The first time you saw Tara Brown.

A. Yeah.

Q. She was accompanied by a cameraman?

A. Yes.

Q. And he was carrying a video camera on his shoulder?

A. Yes.

Q. And it was obvious to you what he was doing?

A. Yes it would’ve been.

Q. You did not ask them to leave at that point did you, when you first saw them?

A. I spoke to Tara Brown first.

Q. Mr Anning when you first saw them?

A. Yep.

Q. You did not ask them to leave your property --

A. Immediately, no.”

14 No employee of the Appellant who was present at the time, gave evidence.

15 There was a video recording made of much of what transpired on the morning in question. The value to this Court of the recording actually in evidence is limited. It is an excerpt from “A Current Affair” as televised on that programme. The whole of the recording that must have been taken was not in evidence. Only the edited excerpts that were broadcast are in evidence. Many of the statements recorded cannot be heard on the broadcast which is in evidence, because Ms Brown’s voice is heard ‘talking over’ (as later recorded) a large amount of what was actually said. Nonetheless the segment as televised does give some indication of what happened. The substance is as described by the Respondent’s evidence in chief and as found by her Honour. There are some particular aspects of what was recorded that reinforce, correct or clarify the oral evidence.

16 Upon seeing Ms Brown the Respondent says “Well where are you from?” Ms Brown replies “We’re from A Current Affair, Channel Nine”. The Respondent immediately says “Right, I think that you’d better hang on until I’ve got a statement to make.” There is then a period during which the Respondent is talking but most of what he says is ‘talked over’.

17 When the ‘talk over’ stops, the Respondent clearly says “I want no people here …”. Ms Brown interjects saying “Well we’re ready to go”. The Respondent continues “…unless Current Affair are prepared to do a deal with me over something I can tell them that will affect the whole of this, OK?” Ms Brown responds “What sort of deal do you want to do?” The Respondent can then be heard to say: “Now that’s not to go on air. Here’s the police here”. The recording is then interrupted by other aspects of the programme. It then returns to the interchange between Ms Brown and the Respondent. The Respondent says “Look out for trouble. That’s not the end of it”. Before the excerpt of the interchange finishes, Ms Brown is heard to say “How long have you been dumping tyres here for?”

18 The Appellant had been undertaking surveillance of the property for about a month prior to the day in question. The broadcast contained video footage showing hundreds, perhaps thousands, of tyres, as Ms Brown, in the voice over, states:

“Our own surveillance of a small part of the property earlier this month …”

19 A date of 31 October 2000 – almost two weeks before the incident – appears on some of the video footage of a truck carrying tyres. It was identified as the same truck as had conducted the delivery on 10 November. Ms Brown said that that truck had conducted such deliveries on five out of every ten days for some months. Whether this is based on her own observations, or on information given to her by EPA officers, does not appear.

20 The Appellant’s employees were briefed by EPA officers about their investigations and the proposed raid. The programme broadcasted preparation for, and the actual execution of, the raid. The programme alleged that some tens of thousands of tyres had been dumped on the property.

21 In due course, the Court was informed, the Respondent was prosecuted for environmental offences. However, the charges under s5(1) of the Environmental Offences and Penalties Act 1984 – for negligent disposal of waste in a manner likely to harm the environment – were dismissed on the basis that it had not been established that the tyres were “waste” within the meaning of the Act. (See Environment Protection Authority v Anning (1998) 100 LGERA 354.)

22 The evidence before the trial judge did not suggest any injury to the land or to property, arising from the trespass. Evidence of damage included hurt to feelings, humiliation, affront to dignity and, significantly, mental trauma diagnosed as depression and panic disorder.

Trespass and Purpose of Entry

23 The tort of trespass is committed whenever there is interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession. In the present case, there was no issue about the Appellant’s physical entry onto, or its remaining on, land in the Respondent’s possession. The issue was whether the acts of the Appellant, by its employees, were authorised by the Respondent, either impliedly or expressly.

24 In a joint judgment, Mason CJ, Brennan, Gaudron and McHugh JJ said:

Coco v The Queen

25 This expresses, in contemporary terminology, the significance long attached at common law to the interests protected by the tort of trespass to land, as appears from the frequently cited reasoning of Lord Camden CJ in Entick v Carrington (1765) 2 Wils 275 at 291; 95 ER 807 at 817-818.

26 In the joint judgment of Gaudron and McHugh JJ in Plenty v Dillon (1990-1991) 171 CLR 635 at 647, their Honours said (references omitted):

for a lawful purpose

Robson v Hallett

‘the occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house.’

This implied licence extends to the driveway of a dwelling house …” [Emphasis added]

27 The determination of the existence and scope of a licence to enter was discussed in the joint judgment of Gibbs CJ, Mason, Wilson and Deane JJ in Halliday v Nevill (1984) 155 CLR 1 at 6-8:

Edwards v Railway Executive

for the purpose of lawful communication

Robson

28 The Appellant relied on the reference in Halliday vNevill to a “purpose of lawful communication” with, relevantly, the Respondent and to the reference to “a lawful purpose” in Plenty v Dillon.

29 I have found the reasoning of Brennan and Deane JJ in Barker v The Queen (1983) 153 CLR 338 at 364-365 to be of particular assistance:

“… entry will be as a trespasser if, as a matter of substance and fact, the entry in question is beyond the scope of the permission … The answer to the question is not complicated by artificial notions that a permission must be qualified by reference to authorized purpose or by artificial doctrines of relation back. When the only suggested justification for entry is the permission of the person in possession, the question whether entry was as a trespasser involves no more than identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission. If the permission was not subject to any express or implied limitation which excluded the entry from its scope, the entry was not as a trespasser. If the permission was subject to an actual express or implied limitation which excluded the actual entry, the entry was as a trespasser.

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd

30 As this judgment indicates, difficult questions of characterisation arise wherever it can be said that entry upon land is actuated by more than one purpose. The word “purpose” is frequently a slippery concept when employed in the determination of legal rights and obligations. (See e.g. Bennett “The Ascertainment of Purpose when Bona Fides are In Issue – Some Logical Problems” (1989) 12 Sydney Law Review 5.)

31 Inspectors who attended cinemas on behalf of film distributors, who were renumerated on the basis of attendances, were found not to be outside the terms of the express licence they received when they bought a cinema ticket, merely because their motive in acquiring the tickets was to conduct a head count. (See Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 at 776.) Similarly, a taxpayer who attended on her accountant to discuss her affairs, and who wore a listening device at the request of the authorities, was nevertheless found to have entered the premises for the purpose of carrying on the professional relationship, as was authorised, even though her motive was to record the conversation as part of an official investigation. (See Barker v The Queen (1994) 54 FCR 451 esp at 472G and 474E.)

32 It does not appear to me to have been authoritatively determined what the position is, if entry onto a premises is accurately characterised as being actuated by more than one purpose, one of which is within an express or implied licence and the other of which is not.

33 This issue divided this Court in Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR(NSW) 311 in which the majority, Herron CJ and Jacobs JA, concluded that a trespass may be committed pro tanto i.e. to the extent that there was an improper purpose trespass had been committed in that regard, albeit not in regard to the entry for the authorised purpose. (See esp at 321 and 332-333 where Jacobs JA indicated that as a practical matter there may not be many circumstances in which damage can be related to the unlawful purpose alone.) Sugerman JA dissented (see at 330-331). On appeal to the High Court (Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584) Barwick CJ and Menzies J at 599 agreed with Sugerman JA; Kitto J at 606 agreed with the majority; the other two members of the court did not express an opinion on the point.

34 In Barker v The Queen Mason J, whilst referring with approval to Kitto J, also indicated support for the position of Sugerman JA when he said at 347:

“If a person enters premises for a purpose which is within the scope of his authority then his entry is authorized; it is not made unlawful because he enters with another and alien purpose in mind. The performance of acts with a view to the attainment of that alien purpose does not relate back to his entry so as to endow it with a trespassory character.”

35 There are a number of authorities that appear to adopt a trespass pro tanto approach. (See e.g. Bond v Kelly (1873) 4 Australian Jurist Reports 153; Singh v Smithenbecker (1923) 23 SR(NSW) 207 at 214, 217; Willcox v Kettell [1937] 1 All ER 222 at 222-224; Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 460.)

36 The approach of Brennan and Deane JJ in Barker v The Queen, which I have quoted above, focuses attention on the need to carefully identify the scope of the licence (at 359.4 and 364-365).

37 The circumstances of the present case do not require the Court to resolve this divergence in the authorities. For the reasons I will set out below, entry for multiple purposes does not arise on the facts of this case.

Implied Licence

38 The Appellant submitted that the entry of its employees occurred pursuant to an implied licence to enter. It relied in this regard on two alternatives:

· The use of the land as a tyre dump and/or as a racing track necessarily involved permission for members of the public to enter.

· Any member of the public has a right to enter a property in an attempt to lawfully communicate with the occupier, specifically to approach the occupier to ask if he or she will give an interview.

39 In rejecting this submission, her Honour made a finding that there were signs on the gate prohibiting entry. The Appellant submitted, correctly, that there was no evidence about the content of the signs. The Respondent’s submission that her Honour was entitled to draw an inference to that effect should be rejected. There was no proper basis for such an inference. The possible content of the signs cannot be used to rebut the Appellant’s case that there was an implied licence.

40 The Respondent had unlocked the gate at the time the truck arrived. He did not lock it after the truck entered. If the gate had been locked then the Appellant could not have contended for an implied licence. The fact that the gate was unlocked does not, however, of itself, establish what, if any, licence to enter may be implied.

41 In the absence of evidence as to the content of the signs, some form of implied licence did exist. The question is whether or not entry occurred pursuant to any such licence. In this regard the purpose or purposes of entry is a material consideration.

42 I adopt the reasoning of Brennan and Deane JJ in Barker v The Queen as quoted above and pose the issue in terms of whether “as a matter of substance and fact”, the entry in the present case was beyond the scope of any implied licence to enter. In my view, in the present case, the Appellant fails on the facts in this regard.

43 Whatever may have been the scope of a permission for entry with respect to the conduct of the used tyre business or the conduct of a race track, nothing the Appellant did was referable to any such purpose. If there was an implied licence to enter for any such purpose, the Appellant did not avail itself of such a licence.

44 Some of the submissions made by the Appellant suggest that there was an implied licence of such breadth as to justify all that the Appellant did. This proposition was never put in terms. For the reasons given below, there was no such licence.

45 Mr B McClintock SC, who appeared for the Appellant, also relied on the right to enter the property for the purpose of approaching the occupier in order to ask him whether he would give an interview. He submitted that the fact that such a purpose was accompanied by another purpose, i.e. filming an interview with the occupier and other matter, does not convert the Appellant into a trespasser, as if it did not have a legitimate purpose at all. This submission depends on whether the Appellant did in fact have a purpose of seeking permission to film. I discuss this further below.

46 The Appellant’s broadest submission invoked an implied licence to be inferred from the mere fact of an open gate. The Appellant’s submission suggested, but did not expressly state, that there was little, if any, limit on what could be done after entry on such property, unless a limit was expressly imposed. In this case, in the absence of evidence about the content of the signs, it submitted that there was no evidence of any limit.

47 The broadcast on “A Current Affair” consisted of at least three separate segments filmed on the property. First, a segment with Ms Brown standing in front of a large volume of tyres, describing the circumstances of the property. (She is wearing the same clothes as in the next two segments.) Second, the conversation with the Respondent. Third, an interview conducted with the driver of the truck who had delivered tyres to the premises on 10 November and on earlier occasions. The overall context of surveillance and participation in the official raid was such that filming of all of these matters was plainly part of the purpose of entry.

48 The Appellant did not expressly submit in terms that entry for all or any of these purposes was within any implied licence. Nevertheless, the general submission suggested that this was so. This submission should be rejected.

49 It is sufficient to refer again to the passages from Coco v The Queen and Plenty v Dillon, which I have quoted above, to conclude that an implied licence of such breadth, arising from the failure to lock a gate, is not consistent with the history of the tort of trespass to land and the important interests which it continues to protect.

50 As emphasised in Halliday v Nevill, the existence of an implied licence is largely a question of fact. Nevertheless, as Young J said in Lincoln Hunt Australia Pty Ltd v Willesee at 460:

“… most implied invitations will be held to be for limited purposes and in such cases an entry unrelated to those purposes will be a trespass right from the moment of entry.”

51 I would add that such “limited purposes” will generally only confer permission to enter “exclusively for the particular purpose”, to use the terminology of Brennan and Deane JJ in Barker v The Queen at 365 for the resolution of the issue of multiple purposes.

52 The protection of privacy interests has long been recognised as a social value protected by the tort of trespass. Privacy is specifically referred to as such an objective in the joint judgment of Gaudron and McHugh JJ in Plenty v Dillon at 647, which I have quoted above. Their Honours refer with approval to the judgment of Lord Scarman in Morris v Beardmore [1981] AC 446 where his Lordship said at 463-464, employing terminology also used in the joint judgment of the High Court in Coco v The Queen:

Entick v Carrington

‘No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him.’

Secondly, the right enjoys the protection of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), which the United Kingdom has ratified and under which the United Kingdom permits to those within its jurisdiction the individual right of petition: see articles 8 and 25.”

53 The traditional maxim that “an Englishman’s home is his castle” is in large measure based on privacy considerations. As Lord Ellenborough said in Burdett v Abbot (1811) 14 East 1 at 155; 104 ER 501 at 560:

“the law values the private repose and security of every man in his own house, which it considers as his castle …”

54 The maxim is most frequently traced back to Semayne’s Case (1604) 5 Co Rep 91a at 91b; 77 ER 194 at 195. However, it is of older vintage and was in part based on the family home as a spiritual and family locus. (See Barbara H Rosenwein, Negotiating Space: Power, Restraint and Privileges of Immunity in Early Medieval Europe, Cornell University Press, Ithaca (1999) esp at 202-207. See also David Feldman, The Law Relating to Entry, Search and Seizure, Butterworths, London (1986) esp at 7-11.)

55 The maxim does not, however, apply in the context of premises which, relevantly, constitute a place of business, as distinct from a dwelling. (See the detailed consideration of the maxim in Nevill v Halliday [1983] 2 VR 553 at 561-568 per Brooking J.)

56 As Gleeson CJ has indicated, the fact that something occurs on “private property”, does not make it, relevantly, a “private act”. (See ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 76 ALJR 1 at [35].) His Honour went on to say:

“[42] … An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combined to afford …

[43] … the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. This may be incongruous when applied to a corporation. The outcome of the present case would not be materially different if the respondent were an individual or a partnership, rather than a corporation. The problem for the respondent is that the activities secretly observed and filmed were not relevantly private. Of course, the premises on which those activities took place were private in a proprietorial sense. And, by virtue of its proprietary right to exclusive possession of the premises, the respondent had the capacity (subject to the possibility of trespass or other surveillance) to grant or refuse permission to anyone who wanted to observe, and record, its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner of land would prefer that it were unobserved. The reasons for such preference might be personal, or financial. They might be good or bad. An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership. It may mean that a person who enters without permission is a trespasser; but that does not mean that every activity observed by the trespasser is private.”

57 In the present case nothing turned on the fact that the Respondent lived on the premises in a caravan. There is no suggestion of an invasion of his privacy insofar as he used the land as a dwelling. The issues in the present case have to be assessed on the basis that a trespass, if any, occurred in relation to the conduct of business activities on the premises. Privacy considerations are, accordingly, attenuated, but not irrelevant.

58 Persons conducting business on private property are entitled to do so without others intruding for purposes unrelated to the business activities they are conducting. This includes those who wish to enter with a view to publicly exposing aspects of their business.

59 Although the law has been particularly protective of persons from intrusion on the part of the organs of government, it should be no less protective in the case of other powerful sections of society of which, in contemporary conditions, the mass media is one. Indeed, as long ago as 1883 Sir James Martin, Chief Justice of this Court – himself a former editor of the original Australian newspaper and a former Premier – said, in the context of a defamation action:

Anderson v Fairfax

60 In a case in which a television broadcaster had intruded onto property, on which a business was conducted, for the purpose of exposing what the journalists believed to be iniquity, (Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169), Williams J said at 173-174:

“Thus the judges jealously protect the rights of all citizens against oppressive conduct by the State, and do so by application of the principles of the common law without the necessity for any statute defining the rights of the individual. Those rights which in the past have withstood the challenge of unwarranted intervention by the State will also prevail in the courts against the unwarranted intrusion of the media. It would be unthinkable that under the guise of freedom of speech the media (particularly in a situation where competition for ratings was a motivating factor) could trample on the rights of citizens which were inviolable as against the State. If a police officer could not without more enter a home or office, armed with a video camera, to search for evidence of the commission of some offence, what law could possibly justify and protect the conduct of a news reporter in doing just that. If the courts stood by and permitted such conduct (particularly where purported investigation of offences was involved) then they would be abdicating their role as the institution in society according to whose rules questions of guilt or innocence were to be determined, and permitting the replacement thereof by trial by media.”

61 The media have considerable power in contemporary society. That power is enhanced by the capacity for intrusion afforded by contemporary technology. That power can be wielded for good or ill. To establish, for the first time, a wide ranging right to enter property to pursue the truth, let alone the quite different requirements of a “good story”, would be to trust those who wield power to a degree that centuries of experience with searches and seizures establishes to be unwise.

62 In the present circumstances, in my opinion, there was no implied licence to film any, let alone all, of the three segments broadcast on “A Current Affair”.

63 An alternative basis for reaching this conclusion is suggested in the judgment of Eichelbaum CJ in TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 in which the Chief Justice said at 732:

Robson v Hallett

Robson v Hallett.

Lincoln Hunt Australia Pty Ltd v Willesee

Here no doubt the purpose of the visit was to obtain an interview if that could be achieved; but if it could not TV3 was ready to film whatever encounter ensued and record such statements as the occupier might make, without her being aware of it. The occupier would not have agreed to the reporter coming on to the premises for that purpose, and the inference is open that TV3 was aware of that. In the circumstances the reporter’s entry did not fall within the terms of the normal implied licence, and for purposes of action in tort was a trespass from the outset.”

64 Randerson and Neazor JJ referred to TV3 Network Services case in Attorney-General v Hewitt [2000] 2 NZLR 110 at 118 and described it as a case “… where entry was made for a purpose which it was known or understood the occupier would not give consent”.

65 Mr B McClintock SC, submitted that there was no basis in the present case to draw the inference drawn by Eichelbaum CJ in TV3 Network Services, that the television reporter knew or understood that consent for a general interview would not be granted. This submission no doubt extended to the whole of the material filmed on the day i.e. Ms Brown in front of the stacks of tyres and interviewing the truck driver.

66 Whether an inference of the character drawn by Eichelbaum CJ in TV3 Network Services should be drawn depends on the whole of the circumstances. In the present case, those circumstances included, at the very least, an official raid designed to establish the commission of offences. Police or other officials, with authority to enter the property, who permit media to accompany them when executing search warrants, may cause significant problems for the administration of justice. (See e.g. R v Marylebone Magistrates Court ex parte Amdrell Ltd [1998] EWHC Admin 322; [1999] Env LR D11; Wilson v Layne (1999) 526 US 603.)

67 Suffice it to say, for present purposes, that such a context would lead, in the normal case, to an understanding on the part of the media that the person who is the subject of a regulatory raid would not give consent to filming. There may be exceptional cases in which such consent would be forthcoming but, in the absence of any basis for believing that the instant case might be such, the law should act on the basis of the normal case. There was no evidence to prevent the inference in the present case, that the Appellant understood at the time of entry that a request for consent to record each of the three matters recorded would have been denied. To overcome that inference, the Appellant would have had to call evidence, which it did not.

68 Accordingly, the general licence for which the Appellant contended, even if, contrary to the view I have expressed above, it constituted a “lawful purpose”, would not avail the Appellant in the present case.

69 Alternatively, the Appellant relied on an implied permission to enter in order to ask the occupier for permission to film. Such a licence will be implied. (See Robson v Hallett [1967] 2 QB 939; Halliday v Nevill; and TV3 Network Services Ltd at 723.) The issues in such a case, to repeat part of the extract from the judgment of Brennan and Deane JJ in Barker v The Queen quoted above, are:

“… identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission.”

70 Mr McClintock submitted that Ms Brown did request permission to film. Indeed, he submitted that her “first contact” with the Respondent was in the form of a request for permission. If there had been any such request, then it would be open to infer that entry occurred, in part, for that purpose. However, I do not see any evidence of any request for permission, let alone that the “first contact” was of that character.

71 Mr McClintock appears to rely in this regard on the evidence in chief given by the Respondent as to his recollection of the commencement of his conversation with Ms Brown. In his evidence in chief he gave two versions of this conversation. The first is recorded in the transcript in the following way:

“We’re from A Current Affair … we’re here to do a story … (not transcribable) … the tyres.”

72 It appears, however, that her Honour did take a note of the passage that the court reporter could not transcribe, because in her judgment she recounts the conversation in the following way:

“We are from A Current Affair, we are here to do a story relative to the tyres.”

73 A few questions later the Respondent repeated the nature of this conversation in the following terms:

“I’m Tara Brown from A Current Affair and we want to do a story on the tyres.”

74 The conversation of which this is the Appellant’s recollection is, it appears, fully recorded on the video recording. That videotape shows Ms Brown answering questions from the Respondent. On the videotape, nothing appears relating to “a story on the tyres”. Perhaps it was part of the recording which had a voice over. I am not satisfied that anything of this character was said at all.

75 Even if something like this had been said, it could not have been construed as a request for permission. The Respondent’s version of the conversation, “We are here to do a story” appears to me to be an assertion, rather than any kind of request. There may be circumstances in which such terminology can be construed as a request for permission. In the present circumstances it cannot be so construed. The cameras were rolling at the very point of time that it is alleged something of this character had been said. Furthermore, the entirety of the context in which the Appellant had been preparing the programme for several weeks; the close involvement with the regulatory officials conducting the investigation; the entry in the context of an official raid and the actual content of the broadcast programme, strongly suggest that no request for permission was in contemplation. In the absence of any evidence on the part of the Appellant, the proper inference is that its employees did not intend to ask permission.

76 In my opinion, the Appellant cannot rely on an implied licence to approach the Respondent for the purpose of requesting his authority to film or conduct an interview on the premises.

77 The case most closely analogous to the present case is the decision in Brunner v Williams [1975] Crim LR 250. (More fully reported in 73 Knights LGR 266 esp at 272-273.) In that case an inspector was acknowledged to have a right to approach the front door to seek permission to check a coal delivery. He did not exercise any such right. He went down a side passage to the rear of the premises to ask those delivering the sacks of coal not to unload them, because that may have made subsequent inspection futile. He was found to be a trespasser.

78 In my opinion, the same result should occur in the present case. The implied licence was limited to a particular purpose, namely, to enter the land to request permission to film. The Appellant did not enter the land for that purpose, or for purposes which included that purpose. It entered the land for the purposes of filming the raid, recording the Respondent’s use of the land, conducting such interviews as it could with a view to broadcasting a programme. It was wholly outside any implied licence.

Express Licence

79 The Appellant submitted that it had an express licence to remain which, retrospectively, constituted an express licence to enter. This was said to arise from the comment made by the Appellant – after the entry onto the premises and the commencement of filming – in the following terms:

“Right, I think that you’d better hang on until I’ve got a statement to make.”

80 However, within seconds, the Appellant said:

“I want no people here unless Current Affair are prepared to do a deal with me …”

81 The Appellant submitted that the “hang on” comment, as set out above, constituted a permission to stay, which operated retrospectively to authorise entry at the gate. No authority was cited for this proposition. The subsequent revocation of that permission, which occurred almost immediately, the Appellant submitted, did not itself have a retrospective effect.

82 In the context, as it appears particularly on the videotape, the use of the words “hang on” were, in my opinion, intended to and did convey the meaning “stop what you are doing”, rather than “stay here”. There is no basis for the submission that the comment operated retrospectively to authorise entry or to justify the continued presence on the premises (other than momentarily for purposes of a negotiation) or to authorise the other acts performed without authority, i.e. filming in front of the tyres and filming the interview with the truck driver.

83 The express licence, if any, which was, at best, momentary, did not authorise the Appellant’s conduct, whether past or subsequent. It was, at most, a licence exclusively for a specific purpose and did not validate conduct beyond the scope of the permission.

84 The appeal against the finding of trespass should be dismissed.

Scope of Damages

85 The Appellant submitted that her Honour erred in awarding damages for personal injury, specifically mental trauma. It submitted that the tort of trespass to land protects the interest of the plaintiff in possession of land. It does not protect a plaintiff’s right to bodily integrity. Mr McClintock submitted that there were three permissible elements in an award of damages for trespass to land:

(i) Compensation for the use of land on either a diminution in value basis or on a price for reasonable user basis.

(ii) Vindication of the right to freely exercise possession of land.

86 Mr McClintock submitted that the only case in which damages for mental trauma have been awarded for trespass was when Plenty v Dillon (1990-1991) 171 CLR 635 was remitted by the High Court. (See Plenty v Dillon [1997] SASC 6372 (Judge Kelly, a Master of the Supreme Court of South Australia).) He submitted that this case was wrongly decided. The Appellant did not, however, refer the Court to any authority supporting the proposition for which it contended.

87 In Mullany and Handford, Tort Liability for Psychiatric Damage (1993), the authors assert at p46 that consequential damages for mental distress are recoverable in an action for trespass to land. The authors give three authorities for this proposition: Bruce v Rawlins (1770) 3 Wils KB 61; 95 ER 934; Bennett v Allcott (1787) 2 Tr 166; 100 ER 90; Waters v Maynard (1924) 24 SR(NSW) 618.

88 In Bruce v Rawlins damages were recoverable, in part, on the basis that the home owner’s family had been “frightened and surprised” by an unauthorised raid by customs officers. Whilst allowance must be made for the state of understanding of psychological injury in 1770, I do not detect reference to anything which can be characterised as personal injury in the nature of mental trauma. The language of the judgment suggests a finding of aggravated damages, based on the affront and indignity of the trespass.

89 Bennett v Allcott does not appear to me to involve any form of mental distress. During the trespass, the defendant debauched the owner’s daughter, by which the owner lost her services. This was held to be consequential loss per quod servitium amisit.

90 Similarly, in Waters v Maynard there was no reference to any form of mental distress.

91 There is one authority which has been referred to as standing for the contrary proposition. In Huxley v Berg (1815) 1 Stark 98; 171 ER 413 the plaintiff’s wife had been so terrified by the defendant’s conduct – which included trespass by breaking into the family home and an assault on the plaintiff – that she became ill and died. It was held that this was not a recoverable head of damages. The mental trauma was not, however, suffered by the occupier who had a right to sue in trespass for land.

92 The authors of McGregor on Damages, 16th ed (1997) at pars [228] and [1488], suggest that Huxley v Berg and other cases which restrict categories of damage recoverable as consequential loss after trespass to land (e.g. Bracegirdle v Orford (1813) 2 M & S 77; 105 ER 311), cannot be readily reconciled with other cases. The cases to which they refer (at pars [228] and [1487]) are Bennett v Allcott; Anderson v Buckton (1719) 1 Strange 192; 93 ER 467; and Pritchard v Long (1842) 9 M & W 666; 152 ER 281. (The equivalent passage in an earlier edition of McGregor on Damages was referred to by Neasey J in Hogan v A. G. Wright Pty Ltd [1963] Tas SR 44.)

93 The continued reliance by the authors of McGregor on Damages on Huxley v Berg is, in my opinion, in error. It is a judgment of Lord Ellenborough in 1815, a few years after the Lord Chief Justice had proclaimed, for the first time, that: “In a civil court, the death of a human being could not be complained of as an injury” (Baker v Bolton (1808) 1 Camp 493; 170 ER 1033). This much criticised decision eventually lead to Lord Campbell’s Act. (See Fleming, Law of Torts, 9th ed (1998) pp.729-730; Clerk and Lindsell on Torts, 17th ed (1995) pars [27]-[38].) Huxley v Berg appears to be an application of the rule in Baker v Bolton, rather than a restriction on the categories of damage recoverable in trespass.

94 A careful reading of Bennett v Allcott indicates that no issue arose as to whether consequential loss by way of a debauched daughter was available in an action for trespass to land. The Court proceeded on the basis that this was an available head of damage. The issue before the Court was whether the jury’s award was excessive. The Court referred to an earlier decision in which it was held that a plaintiff had an election to add such a claim to an action for trespass or, in the alternative, to bring an action on the case for debauching a daughter, per quod servitium amisit. That case appears to be Russell v Corne (1703) 2 Ld Raym 1031; 92 ER 185, where Lord Holt CJ said that in a trespass to land, coupled with an assault on a servant or debauchery of a daughter, the latter is a form of “aggravation” of the trespass. The recovery of aggravated damages is based on different principles to recovery for personal injury as a distinct head of damage for trespass to land.

95 In Anderson v Buckton, diseased cattle infected the occupier’s cattle. Recovery of consequential damages was not in issue in that case, which concerned a statutory restriction on recovery of costs in excess of damages for particular causes of action. In any event, the case was disapproved in Daubney v Cooper (1830) 10 B & C 830; 109 ER 657.

96 Pritchard v Long is referred to as a case in which the consequential loss alleged was the value of goods removed after a trespass to land. The authors of McGregor of Damages suggest (at p144 fn 27 and p976 fn 1) that the case assumes that the plaintiff could have recovered for the goods if he had pleaded his case properly. It is, however, by no means clear that the court had in mind consequential damages for trespass to land, rather than parallel proceedings for trespass to goods.

97 Wormald v Cole [1954] 1 QB 614 was a case of cattle trespass where the defendant’s cattle had knocked down the plaintiff, who occupied the adjoining property onto which the cattle had strayed. The cause of action in cattle trespass has a distinctive and long history. Lord Goddard CJ and Hodson LJ appear to apply a direct consequences test (622-626 and 635-636). Singleton LJ applied a “reasonable and natural” consequences test (627, 630). On either test the plaintiff recovered. In a case of cattle trespass, accordingly, personal injury has been recovered as consequential damages.

98 Wormald v Cole is authority for the proposition that personal injury is a recoverable head of damages in the case of at least one intentional tort. It is difficult to see any principled basis on which that conclusion should be confined to cattle trespass today. As Neasey J said in Hogan v A. G. Wright at 46:

“… one would think that the principles governing recovery of damages ought to be the same in torts so closely allied.”

99 The reconciliation of the results in these cases is not to be found in attempting to categorise heads of damage which, a priori, are not recoverable because the cause of action is, primarily, designed to protect a property interest in land. What is required is a principled approach to when damage, other than that primarily protected by a tort, is to be regarded as consequential upon damage within the protection and, accordingly, recoverable under that tort.

100 The High Court has recently explained recovery for consequential loss in the case of intentional torts by invoking a general test. Damages can be recovered for harm that is intended or that is the natural and probable consequence of the tortious act. (See Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 76 ALJR 163 esp at [13], [14], [73], [75]-[76], [114].) Damage that is the “natural and probable consequence” of conduct is within the “presumed intent” of the actor. (Palmer Bruyn & Parker at [73] and [80] per Gummow J.) Although this case involved injurious falsehood, the High Court’s reasoning is of more general application to intentional torts. The issue in the present case is best approached on this more general test. Palmer Bruyn & Parker establishes that reasonable foreseeability is not an element of the test for recoverable damages, a proposition which had been left open in earlier cases (e.g. Lippl v Haines (1989) 18 NSWLR 620 at 639.)

101 For purposes of the law of negligence, psychiatric damage has been treated as a distinct class or kind of damage. This position may be elucidated in judgments of the High Court which are presently reserved. (On appeal from this Court in Morgan v Tame (2000) 49 NSWLR 21 and from the Full Court of the Western Australian Supreme Court in Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35.) It may well be that psychiatric damage should be treated as a separate class for purposes of intentional torts. (See the references to a “kind” of harm or damage in Palmer Bruyn & Parker at [13] and [14] per Gleeson CJ and at [74] per Gummow J.) For present purposes, nothing turns on whether psychiatric damage is a form of personal injury or a separate class.

102 In Mayfair Ltd v Pears [1987] 1 NZLR 459, a trespasser who had parked his car on premises without authority, was found to be not responsible for the damage to the building caused by a fire that started in the car. The references to reasonable foreseeability in some of the judgments in this case would now have to be rejected in view of the High Court’s decision in Palmer Bruyn & Parker. However, the reasoning of the New Zealand Court of Appeal encompassed a natural and probable consequence test finding the fire not to be such a consequence of the trespass. (See Balkin & Davis, The Law of Torts, 2nd ed (1996) at 128.)

103 In the light of the reasoning in Palmer Bruyn & Parker, the relevant test for recovery of consequential loss after an intentional tort in terms of “natural and probable consequence” is the preferred formulation in Australia. However, it must not be applied as if it were a statutory formulation. Numerous other cognate formulations have been used in the authorities. (See Palmer Bruyn & Parker at [76] per Gummow J.) One such formulation was “reasonable and natural consequences”. (See Wormald v Cole at 627, 630.) This was the formulation contained in Trindade, The Law of Torts in Australia, 2nd ed (1993) at 295, which Judge Kelly adopted and applied in Plenty v Dillon on remitter, save on one occasion when he used the words “natural and probable consequence”. Similarly in the present case, her Honour used the words “natural and reasonable consequence”. I do not, however, understand Judge Kelly or Judge English to have applied this test in a manner different to a “natural and probable consequences” test. No error arises in that respect.

104 What is a natural and probable consequence arising from a trespass to land must depend on all the circumstances of a case. It is essentially a question of fact. Personal injury to an occupier was a natural and probable consequence of the kind of trespass that occurred in Wormald v Cole i.e. the escape of cattle from the defendant’s land onto adjoining property. Similarly, injury to a plaintiff’s horse was a natural and probable consequence of the act of trespass in Hogan v A. G. Wright i.e. destroying a fence with a bulldozer which allowed horses to escape, one of which was injured in the subsequent roundup. Finally, injury to olive trees on an adjoining property was a natural and probable consequence of permitting cattle to enter it. (Svingos v Deacon [1971] 2 SASR 126.)

105 It is unnecessary to decide whether or not damages for personal injury and, specifically, psychiatric injury may, as a matter of law, be recovered in an action for trespass to land. It is undesirable to lay down a general rule that such damages cannot be recovered. I have come to the conclusion that personal injury, including mental trauma, was not, in the circumstances of this case, a “natural and probable” result of the trespass. It is unnecessary to decide whether some other mode of trespass may have such damage as a “natural and probable consequence”.

106 It is undesirable to limit the scope of recoverable damage to a list of categories intended to exhaustively state the kinds of damage that may be recoverable, as propounded by the Appellant in its submissions to this Court. It is possible to conceive of a trespass to land in which psychiatric harm is actually intended or is within the trespasser’s “presumed intent” under the ‘natural and probable consequences’ test. This may be the case if a trespass occurred by way of leaving a cobra snake in a bedroom. Similarly, in the case of a stalker who enters property. (Although in such cases, a cause of action based on Wilkinson v Downton [1897] 2 QB 57 and Janvier v Sweeney [1919] 2 KB 316 may be more appropriate.)

107 A video camera, however damaging it may prove on occasions, is not a cobra, although there may be circumstances in which the stalker analogy is apt. Humiliation, injured feelings and affront to indignity may be a natural and probable consequence of intrusion by the media on private property. Such damage is compensable as aggravated damages. Such damage is different in kind to mental trauma. In my opinion, mental trauma – or indeed any form of personal injury – does not flow ‘naturally’ and ‘probably’ from a trespass to land committed in the way the Appellant acted, in all of the circumstances of this case. I reach this conclusion even though the nature of the intrusion carried with it the implicit prospect of broadcast to the public at large of the recording made during the trespass.

108 The position is analogous to the “person of normal fortitude” test which, subject to the reserved decision of the High Court, has been held to restrict recovery for mental trauma in negligence. (See Morgan v Tame esp at [13]-[19], [133]-[137], [166].)

109 As Pollock CB said arguendo in Allsop v Allsop (1860) 5 H & N 534 at 536; 157 ER 1292 at 1293, (as quoted with approval by Dixon J in Bunyan v Jordan (1936-1937) 57 CLR 1 at 17):

“The law deals with damage which might reasonably result, not with that which may depend on the idiosyncrasy of the party.”

110 In his judgment in Allsop v Allsop, Pollock CJ said at 1293-1294:

“The Courts here have always taken care that parties shall not be responsible for fanciful or remote damages, or in fact any that do not fairly and naturally result from the wrongful act itself.”

111 In Bunyan v Jordan, a person saw another handling a revolver, overhead him say that he was going to shoot someone and, after the person left, heard a shot fired. The High Court refused recovery for mental trauma. The pleadings in the case were unsatisfactorily open ended, but one basis considered was the intentional tort discussed in Wilkinson v Downton.

112 In that regard Latham CJ said at 12:

“… there is no reason to suppose or anticipate that the firing of a revolver shot, even following upon a threat of shooting somebody, will cause serious illness to a person who hears it fired. The acts of the defendant, taken all together, cannot be said to be calculated or likely to cause harm to any person … if they were normal persons.”

113 Rich J at 15 and Dixon J at 16-17 (neither of whom separately considered the intentional tort basis of the action) came to the same result as Latham CJ, albeit using the language of reasonable foreseeability. Their Honours also applied a person of normal fortitude test.

114 Filming on premises and attempting to conduct an interview, even with a view to broadcasting, does not, in the normal course, result in personal injury of any kind, including mental trauma, in a person of normal fortitude. Such damage is of a qualitatively different kind to what would normally result, e.g. distress, worry, anger, shame, anxiety. If, as her Honour concluded, mental trauma did eventuate, it must be understood to have occurred as a consequence of factors other than the trespass to land. Such damage was not encompassed within the presumed intention of the Appellant. I would allow the appeal insofar as damages were awarded for mental trauma.

115 I note that, on this analysis, it is difficult to support the decision of Judge Kelly in Plenty v Dillon. Although each case must turn on its facts – particularly the nature of the trespass – the mental trauma suffered in Plenty v Dillon does not appear to me to be a natural and probable consequence where a person is of normal fortitude.

The Expert Evidence

116 The Appellant challenges her Honour’s finding that the Respondent suffered from psychiatric illness. Specifically, it was submitted that her Honour should have accepted the evidence of the Appellant’s psychiatric witness, who was not cross-examined. Alternatively, it was submitted that her Honour failed to give adequate reasons for her conclusion that the Respondent was suffering from a psychiatric illness.

117 The Appellant submitted that her Honour erred in finding a causal relationship between the trespass and the Respondent’s psychiatric condition. The submissions focused on two matters. First, the content of the evidence given by the respective psychiatrists. Second, the other factors associated with the events, and the other content of the broadcast programme, which may have contributed to the mental trauma, if any, suffered by the Respondent.

118 Although, in view of my conclusion on recoverability of damages for mental trauma, it is not necessary to consider these issues, it is desirable to do so, in case the matter goes further.

119 Her Honour’s findings, in this regard, were:

“What he does claim, and is entitled to claim, is for the severe embarrassment and outrage that he suffered following upon the trespass and the ongoing medical conditions flowing in part from that trespass. He is entitled to aggravated damages to compensate injury caused by the insult and the humiliation he experienced. Any award for exemplary damages would be to punish the defendant, to deter it from pursuing stories for publication in such a manner in the future and to punish it for its contumelious disregard of the plaintiff’s rights.

I find that the plaintiff is entitled to damages for his anxiety and depressive illness. I accept the evidence of Doctors Drew and Dent that such conditions have in part been caused by the trespass to the land. The deterioration of his health is the natural and reasonable consequence of that trespass. I have taken into account in assessing damages the opinions of the doctors regarding causation and that is reflected in the award of damages I will make.”

120 Dr Dent, a psychiatrist, and Dr Drew, the treating general practitioner, were called for the Respondent. Dr Moore, a psychiatrist, was called for the Appellant. Her Honour’s judgment made no reference to Dr Moore or her evidence.

121 I reiterate the distinction drawn by her Honour, in the above quoted passage, between “embarrassment and outrage”, on the one hand, and “ongoing medical conditions” on the other hand. Damage of the former character is recoverable in an action for trespass to land by way of aggravated damages. The appeal with respect to the expert evidence is concerned with the latter head of damage identified by her Honour as “anxiety and depressive illness”.

122 Dr Drew made two written reports. The first report is dated 8 April 1999. Dr Drew outlined Mr Anning’s medical history including pre-existing hypertension and variable blood pressure that increased markedly with stress. He reported an exacerbation of the hypertension since the incident in 1995 and the following “media blitz”. The symptoms included headaches, a feeling of collapse and chest pains. Dr Drew reported that Mr Anning presented on a number of occasions since the incident with symptoms suggestive of a stress-related illness, extreme anxiety and depression. He was treated with anti-hypertensive and anti-depressant medication. Mr Anning complained of suicidal tendencies, sleeping poorly, headaches, pressure in the head and paraesthesia.

123 In Dr Drew’s opinion, Mr Anning’s hypertension and anxiety depression have been exacerbated by the 1995 “incident and subsequent media blitz”.

124 The second report is dated 20 June 2000. Dr Drew related two episodes of interaction in a non-professional capacity with Mr Anning. It is not clear how long after the incident the encounters took place. It was after the broadcast. Dr Drew described Mr Anning as distressed, upset, anxious and angry. The report consisted primarily of Dr Drew’s personal responses to Mr Anning’s situation. He commented that subsequent discussions took place between himself and Mr Anning regarding the latter’s blood pressure, anxiety, palpitations and depression. It is not clear whether these conversations took place in a diagnostic context. There is a reference by Dr Drew to a breakdown by Mr Anning in his office. This event appears to have taken place sometime later. Dr Drew concluded that “the stress and anxiety following the raid on [Mr Anning’s] property and the subsequent publicity of the “A Current Affair” programme exacerbated his medical condition…”.

125 The examination in chief of Dr Drew established three matters. The first was that Mr Anning’s blood pressure reading was normal in March of 1995 which was the last occasion that Dr Drew saw him before the incident and that in September of 1996 his blood pressure was “very elevated”. Dr Drew subsequently saw the Respondent on many occasions. He said that the Respondent continued to manifest symptoms of anxiety and depression.

126 The second matter was an opinion by Dr Drew as to the cause of these symptoms. He was led through the account of the incident given to him by Mr Anning and asked to assess the cause of Mr Anning’s condition.

127 Dr Drew said:

“He appears to be very anxious and still has nightmares and dreams about the invasion, about them sticking – people coming onto his property, sticking cameras in his face and things like that. He now feels that every plane that flies over is sort of taking photos of him and if they’re coming low, he feels he can’t go outside and do things without the risk of somebody being out there taking photos of him, that whenever he goes out he sort of has to lock the place up for fear that people will come on and trespass on it and things like that.

I think the incidence of the trespass is the underlying cause and I think that the other things have probably led on and aggravated it.”

128 The “other things” referred to were the broadcast of the programme and the court case with the EPA. Part of establishing this causal link was the reported anxiety by Mr Anning (in subsequent consultations) relating to the incident on his property – that he had nightmares about it, was anxious about going outside and planes flying overhead and felt the need to lock his caravan and the gates to the property.

129 As to Mr Anning’s future, Dr Drew testified that Mr Anning still manifested symptoms of severe anxiety and depression including nightmares and suicidal thoughts. This condition might respond to psychiatric treatment but would otherwise continue.

130 In cross-examination, counsel for the Appellant sought to establish that factors other than the alleged trespass were the relevant causes of Mr Anning’s symptoms and particularly of his high blood pressure. It was admitted by Dr Drew that Mr Anning had a long history of hypertension and that that hypertension could have been contributed to by genetic factors or obesity in Mr Anning’s case. He admitted that there was evidence to suggest Mr Anning’s high blood pressure could have been caused by the EPA court case, the media outside the court, and the “media blitz” following the airing of the “A Current Affair” programme. He admitted that the first time he had described the alleged trespass as the main or primary cause of Mr Anning’s anxiety and symptoms was in his oral evidence. Dr Drew testified that the other stressors had since been removed and that although the trespass was also over, the nightmares suffered by Mr Anning caused him to continue to relive the trespass and that there were “continuous symptoms related to the trespass”. He admitted that he had not referred to the nightmares in any of his medical notes or his report in evidence. On re-examination he explained that this was to prevent information of an embarrassing nature getting into the community via his office workers who would view the patient files.

131 Dr Dent’s written report consisted primarily of a recitation of the history of symptoms, events and conditions conveyed to him by Mr Anning. He noted that he had no access to specialist or general practitioner reports about Mr Anning’s medical condition and history at the time of assessment. The history provided by Mr Anning included apprehension about being watched, locking of gates, apprehension of aircraft flying over, and nightmares about “the property invasion”.

132 Based on Mr Anning’s statements, he concluded that the psychological effects from which Mr Anning suffered “flowed on since the episode in late 1995” involving the Channel 9 entry onto Mr Anning’s property and subsequent “negative” broadcast. He described the psychological symptoms as nightmares in which Mr Anning relived the raid, fear of over flying aircraft, avoidance of contact with people, suicidal thoughts and memory deterioration. He referred to the dreams as “indicative of the very source”, i.e. what he called “the invasion”.

133 Physiological symptoms included hypertension, rapid heart fibrillation, other cardiovascular illnesses such as ‘mini-strokes’, sweating and dizziness, all of which, he said, could be linked to the anxiety or the effect of anxiety upon pre-existing conditions.

134 Dr Dent diagnosed Mr Anning as having major depression and a panic disorder with agoraphobia of a seriousness within the DSM IV category of mental disorder. He stated that the cause was “the entry on [Mr Anning’s] property by the ‘A Current Affair’ staff and then the broadcasting on national television.” He prescribed psychiatric intervention, medication and a programme of psychological intervention which would be cognitive behaviour therapy.

135 In examination in chief, Dr Dent was asked to take into account in his assessment those matters of history about which Dr Drew had testified and which were not in the history reported by Dr Dent. He said that none of those new matters was inconsistent with the history and diagnosis he had already reported. He confirmed his diagnosis and as to causation stated:

“Well, the entry onto the property is the central event. It’s a seminal event, the precipitating causal event.”

136 Dr Dent identified aggravating events such as the initial broadcast, the EPA case, and a confrontation with the media outside the court. He acknowledged that the publicity of the “invasion” was also a cause of the condition but affirmed that the “invasion” was the central cause.

137 Dr Dent identified parts of his report that supported his conclusion that “the entry onto the property was the central event”. He referred to numerous passages, the relevance of which is not obvious, but included passages about locking gates, apprehension of aircraft flyovers, and gave particular significance to the nightmares.

138 In cross-examination, counsel for the Appellant pressed Dr Dent on the uncorroborated nature of the history upon which the diagnosis was made after a single consultation. Dr Dent’s response was that the history given to him was “internally congruent with the symptoms and the diagnoses” that he made. Counsel for the Appellant challenged Dr Dent’s acceptance of Mr Anning having arterial disease where a stress test had produced normal results. He was led through a paper in a medical journal on maladaptive coping strategies for stress which counsel contended demonstrated that it was the maladaptive strategies (such as overeating, lack of exercise and consumption of alcohol) which caused high blood pressure in males rather than the stress itself. Dr Dent considered the paper confusing in its conclusions and limited in its applicability to the present case. Counsel further suggested that Dr Dent’s report contained opinions in relation to cardiology and hypertension which were outside his specialised knowledge and based only on Mr Anning’s oral history. Dr Dent responded that such matters were well-understood even by an undergraduate medical student. Counsel suggested they were not part of Dr Dent’s specialised knowledge, but Dr Dent claimed that the knowledge was gained both from training and from his clinical experience, enabling him to give an opinion on Mr Anning’s physical symptoms.

139 Counsel for the Appellant repeatedly addressed the issue of multiple factors contributing to Mr Anning’s psychological and physical condition. Dr Dent admitted that although he had recorded “harassment” by the media and the EPA as part of Mr Anning’s history, he had only recorded the alleged trespass as an event and not described it as harassment. Dr Dent maintained that the central cause was the “intrusion” by A Current Affair onto Mr Anning’s property, pointing particularly to the content of Mr Anning’s nightmares which related to the “invasion”. He admitted that he had not previously been asked to express an opinion on the relative causal relationship between each part of Mr Anning’s history and his subsequent condition, in particular distinguishing between the alleged trespass and the subsequent publicity.

140 Dr Moore provided a written report for the Appellant. Dr Moore was not required for cross-examination.

141 The history of events based on Mr Anning’s statements to Dr Moore roughly corresponded to the other evidence. Dr Moore recorded the physical medical conditions that Mr Anning claimed he suffered including hypertension (with a long family history of that illness), high blood pressure at times, possible atrial fibrillation and diabetes. She recorded his medication as a tranquilliser, blood pressure medication and anti-inflammatory medication for arthritis. His psychological symptoms included difficulty sleeping, anxiety about the court case and public embarrassment, tearfulness (causing embarrassment), apprehension and fear of surveillance.

142 Her conclusions were as follows:

“I do not think Mr Anning suffers from a significant psychiatric or psychological disturbance….

I do not think his presentation is consistent with either a major depressive illness or a specific anxiety disorder.”

143 In support of this diagnosis, Dr Moore referred to Mr Anning having gained weight recently which was inconsistent with a suicidal tendency. He did not refer to having nightmares. He had a reasonable level of anxiety about the court case and had an excellent memory for the details of his case.

“Overall, it would seem that Mr Anning’s major problems are physical and these should not be confused with psychiatric disturbance.”

144 Expert opinion evidence is admissible pursuant to s79 of the Evidence Act 1995 which permits evidence of an opinion “that is wholly or substantially based” on “specialised knowledge based on the person’s training, study or experience”. As Gleeson CJ said in HG v The Queen (1999) 197 CLR 414 at [39], expert evidence must be “presented in a form that makes it possible” to so describe the evidence.

145 Furthermore, as Heydon JA said in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]:

HG v R

146 There are many inadequacies in the expert evidence that was presented on the part of the Respondent. Dr Drew adopted the position of an advocate for the Respondent. Both Dr Drew and Dr Dent based their statements on self-serving, and generally unverifiable, assertions made to them by the Respondent in a context where the expert does not regard it as any part of his or her function to question such assertions. Much of the detail on which they base their opinions is not confirmed in the Respondent’s own evidence. For example, the Respondent’s evidence about the nightmares was that he had “nightmares about people being on the property”, identifying the people as “A Current Affair or media”. This was more limited than what he told the doctors.

147 Nevertheless, some of the matters upon which the expert opinions were based – particularly the content of the nightmares – does enable an independent trier of fact to assess the evidence in such a way as to determine that the opinion satisfied s79. I have concluded that it was open, albeit barely, to her Honour to accept the Respondent’s experts.

148 As I have indicated above, English DCJ made no reference to the evidence of Dr Moore. It is submitted by the Appellant that her Honour failed to fulfil her obligation to give reasons for her decision by not indicating any basis upon which she came to prefer the evidence of the Respondent’s experts. The Appellant relied on this Court’s judgment in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-589 in support of a submission that her Honour was bound to accept the evidence of Dr Moore, as it had not been the subject of cross-examination, and, alternatively, in support of its submission of a failure to give reasons.

149 The experts were clearly at issue. The failure to cross-examine did not require the Court to accept Dr Moore. (See Ellis at 586-588; Makita at [89].) Failure to test evidence by cross-examination limits the ability of the court to effectively perform the fact finding task. However, if experts set out the basis of their opinion and their reasoning with appropriate clarity, the task can be done. The Respondent’s reports were not, as I have indicated, a model of clarity, let alone of persuasiveness, but there was enough to justify her Honour accepting them in preference to Dr Moore.

150 The failure on the part of her Honour to give any reasons for doing so is, however, another matter. The duty to give reasons has recently been considered in this Court in Todorovic v Moussa [2001] NSWCA 419 at [36]-[40]. This affirms that not all evidence must be referred to in the judgment. However, her Honour’s rejection of the evidence of Dr Moore was critical to one aspect of the case. Her Honour’s failure to refer to it indicates, in my opinion, a failure to consider it. (See Ellis at 589F; Todorovic v Moussa at [28] and [36].)

151 One of the functions of reasons for decisions is to enable an appellate court to discern how the conflict in the evidence was resolved. Furthermore, the parties are entitled to know why the evidence in their case has been rejected. In my opinion, her Honour did fail to give adequate reasons for preferring the evidence of the Respondent’s experts. (See Pettitt v Dunkley [1971] 1 NSWLR 376; NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 esp at 312; T v Medical Board of South Australia (1992) 58 SASR 382 at 408-409; Papps v Police (2000) 77 SASR 210 at [37]-[38]; Hillier v Lucas [2000] SASC 331 at [305]-[309].) But for my conclusion that this head of damage is not recoverable at all, this error would have required a new trial on damages.

Exemplary Damages

152 The Appellant submits that there was no proper basis for an award of exemplary damages. Alternatively, it submitted that her Honour failed to give adequate reasons for the award. Finally, it submitted that her Honour erred in failing to separately identify the amount she awarded for exemplary damages.

153 Her Honour’s findings were:

“The trespass to the plaintiff’s land entitles him to both exemplary and aggravated damages. He was outraged at the trespass. The defendant did not leave the land after being told to do so, that is evident from the program which was subsequently aired.

The plaintiff was a man who liked his privacy. He chose to live in a secluded location, locked his property to prevent entry by others and had erected signs on his gates to deter others from entering. He is now so distressed by the actions of the defendant that he feels powerless and helpless, so much so that he ‘can’t even go out for a pee in case he is being watched.’ He continues to keep his property locked, but says, ‘Who do you know who is going to be in there nevertheless?’

I find the plaintiff is entitled to a significant sum for exemplary damages. The defendant should be punished for its conscious and contumelious disregard for the plaintiff’s rights and in an endeavour to deter them from continuing to commit such offences.

Lee v Adams and Kennedy and Others

In my opinion the appropriate sum to award the plaintiff is the sum of $100,000. The plaintiff is entitled to interest in the sum of $10,653.84. Accordingly there will be a verdict and judgment for the plaintiff in the sum of $110,653.84”.

154 Mr McClintock SC submitted that the programme was not broadcast in chronological order of recording. He submitted that her Honour was not entitled to draw an inference that Ms Brown did not leave the property after being asked to do so.

155 The Appellant also submitted that an amount awarded as exemplary damages should be separately quantified. Two reasons were advanced in this regard. First, the punitive and deterrent objectives of such an award are only served if the amount has been separately identified. Secondly, interest is only payable on compensatory damages. Indeed, in the present case, her Honour awarded interest on the global amount of $100,000, which encompassed compensatory and exemplary damages.

156 It is understandable why her Honour combined aggravated and exemplary damages in a single award. The distinction between the two is sometimes “hard to preserve” in practice, so that the distinction may be “dealing more in words than ideas”. (Per Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1965-1966) 117 CLR 118 at 149, 152, a case concerned with the special field of damages for defamation.)

157 With respect to each head of damage there is a focus on the conduct of the defendant. However, in the case of aggravated damages, that focus is directed at compensating the plaintiff for “the circumstances and manner of the defendant’s wrongdoing” (Uren v John Fairfax & Sons at 130 per Taylor J) or “the manner in which the act was done” (Uren v John Fairfax & Sons at 149 per Windeyer J). Exemplary damages are not compensatory, but designed to punish and deter. (See Lamb v Cotogno (1987) 164 CLR 1 at 8-9.)

158 In Gray v Motor Accident Commission (1998) 196 CLR 1 the four judge joint judgment said at [15]:

“In considering whether to award exemplary damages, the first, if not the principal, focus of the inquiry is upon the wrongdoer, not upon the party who was wronged. (The reaction of the party who is wronged for high-handed or deliberate conduct may well be a reason for awarding aggravated damages in further compensation for the wrong done. But it is not ordinarily relevant to whether exemplary damages should be allowed.) The party wronged is entitled to whatever compensatory damages the law allows (including, if appropriate, aggravated damages). By hypothesis then, the party wronged will receive just compensation for the wrong that is suffered. If exemplary damages are awarded, they will be paid in addition to compensatory damages …”

159 The authorities referred to by her Honour were two related cases: Lee v Kennedy [2000] NSWCA 153 and Adams v Kennedy [2000] NSWCA 152, reported at (2000) 49 NSWLR 78. They do not support the proposition for which her Honour cited them. Indeed they are to the contrary. Priestley JA, with whom Sheller and Beazley JJA agreed, awarded a single aggregate figure for exemplary damages with respect to a number of different causes of action. However, when assessing damages afresh, the Court awarded distinct amounts for general, aggravated and exemplary damages. (See Adams v Kennedy at [35]-[37] and Lee v Kennedy at [18]-[20].) The reference to an aggregate sum in Adams at [36] and Lee at [19] relates to an aggregate of exemplary damages for numerous causes of action. Each is not a reference to an aggregate of aggravated and exemplary damages.

160 The issue of differentiation does not appear to have arisen in Pollack v Volpato [1973] 1 NSWLR 653. However, there is authority that supports her Honour’s single award of damages.

161 In Johnstone v Stewart [1968] SASR 142, Bray CJ said at 144-145:

Uren v John Fairfax & Sons Pty Ltd

Merest v Harvey

Uren’s Case

162 Although his Honour was sitting at first instance, I hesitate before following a different course from so distinguished a jurist. However, the High Court has considered the distinction between aggravated and exemplary damages on a number of occasions since Johnstone v Stewart.

163 His Honour’s reference to Merest v Harvey (1814) 5 Taunt 442; 128 ER 761 is not consistent with the reasoning of Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448 at 471, quoted with approval in Lamb v Cotogno at 9:

Merest v Harvey

I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?’

Broome v Cassell & Co

164 Furthermore, although Bray CJ allowed for cases in which differentiation was appropriate, his Honour did treat the factor of “outrage” on the part of the plaintiff as, ordinarily, a common element in both heads of damage. This does not appear to me to be consistent with the reasoning in Gray v Motor Accident Commission, which I have quoted above.

165 In Henry v Thompson [1989] 2 Qd R 412 at 417, Williams J, with whom Connolly and McPherson JJ agreed, concluded that Johnstone v Stewart should not be followed in view of XL Petroleum and Lamb v Cotogno. I agree. The subsequent decision in Gray v Motor Accident Commission reinforces this conclusion.

166 The Appellant’s submissions should be accepted. One purpose of exemplary damages is to mark disapproval by the Court of a defendant’s conduct and to do so in a way that deters that person and others from acting in that way. This purpose is best served if a discrete amount is awarded by way of exemplary damages. It is also impossible to compute interest on compensatory, including aggravated, damages when exemplary damages are included in a single award of damages. Exemplary damages should not bear interest until date of judgment. (See Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd [1982] 2 NSWLR 852 at 860A.) The award of interest at an earlier date in Sanders v Snell (1997) 73 FCR 569 at 602, without comment in the High Court Sanders v Snell (1999) 196 CLR 329 at 350, appears to have been per incuriam.

167 Her Honour’s composite finding on both aggravated and exemplary damages was based on two stated reasons. First, that the Respondent was outraged. Secondly, that “the defendant did not leave the land after being told to do so”. This latter factor appears, at first impression, to be inconsistent with her Honour’s previous finding, quoted in par [12] above, that there was no evidence that the Appellant did not leave immediately after the conversation with the Respondent and that “no safe inference” can be drawn from the sequence in which matter recorded on site was eventually broadcast. However, perhaps her Honour had in mind the single question asked by Ms Brown after clearly being asked to leave: “How long have you been dumping tyres here for?” This single question is an inadequate foundation for an award of exemplary damages.

168 This Court will be slow to interfere with the exercise of the discretion to award exemplary damages. Her Honour’s reasoning which is, in large measure, based on a factual finding which was not open, indeed which her Honour had rejected in another part of her reasons, justifies appellate intervention.

169 There are, accordingly, two distinct reasons for this Court setting aside the exemplary damages awarded by her Honour. The Court should do so.

Orders

170 The Appellant submitted that the errors with respect to damages were of such significance that a new trial, if any, should not be limited to damages but should relitigate the issue of liability. It also submitted that this Court should not redetermine any damages issue. Specifically, it was submitted that this Court should not separately determine the quantum of exemplary damages.

171 I can see no conceivable justification for a retrial on liability. The Appellant advanced no real reason why, if it lost on those issues, there should be one. The position with respect to a reassessment of damages is not so clear.

172 If the Court conducts the assessment itself then, subject to a grant of special leave, the Appellant would lose the possibility of an appeal on quantum. On the other hand, because of the amount of damages in issue, an appeal to this Court would require leave (s101(2)(r) Supreme Court Act 1970). Indeed, the size of the damages to be awarded strongly suggests that another trial is to be avoided if at all possible.

173 This Court must be concerned to ensure that the costs involved in litigation bear a rational relationship to the value of what is at stake. This is particularly the case where, as here, there is a significant disparity between the parties in terms of available resources. Access to justice may be denied in reality, if not in form, if one party, having regard to its overall interests as a frequent litigator, exploits its wealth by protracting litigation with a view to deterring others. I am not suggesting that that was the case in the present proceedings. The Appellant raised important issues of principle in the appeal. The redetermination of quantum would not raise such issues.

174 In an English dispute involving distribution of property after divorce, where the total value of the property was 127,400 pounds, but the legal costs of successive applications and appeals amounted to 128,000 pounds, Lord Hoffman said:

Piglowska v Piglowski

175 The maintenance of public confidence in the administration of justice requires this Court to be concerned that the legal costs of conducting litigation bear at least a rational, and preferably a proportionate, relationship to the value of what is in dispute. This consideration strongly suggests that this Court should undertake the re-assessment of damages.

176 The Appellant called no evidence at the trial from any of its employees who participated in the events of 10 November 1995. No issue of assessing oral evidence justifying their conduct arises. The decision that damages for mental trauma are not recoverable removes an important area in which a trial judge may have had any advantages. I can see no difficulty in assessing general and aggravated damages – which by their nature call for a broad judgment - on the basis of the transcript. In the case of the latter, there may have been some advantage from observing the Respondent in the witness box, but it is not such as to overcome the other considerations to which I have referred.

177 This Court should reassess damages.

178 General damages should reflect the significant purpose of vindicating the Respondent’s right to exclusive occupation. This requires a substantial award. (See Plenty v Dillon at 654-655 per Gaudron and McHugh JJ.) I would assess such damages at $25,000.

179 This is also an appropriate case for aggravated damages. The hurt to feelings, humiliation and affront to dignity experienced by the Respondent was aggravated by the way in which the Appellant acted in the course of its trespass. It confronted the Respondent with cameras rolling and indicated clearly that it was filming for purpose of broadcast to the public at large. Furthermore, whether before or after the confrontation with the Respondent, it widened the trespass from merely approaching him and felt able to film elsewhere on the property, both in front of the stacks of tyres and in the interview with the truck driver. This conduct justifies an award of aggravated damages which I assess in the amount of $25,000.

180 Exemplary damages are awarded for “conscious wrongdoing in contumelious disregard of another’s rights” (Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 at 77), a phrase which covers “at least the greater part of the relevant field” Gray v Motor Accident Commission at [14]. Other expressions used have included “high-handed, insolent, vindictive or malicious” conduct. (Uren v John Fairfax at 129 per Taylor J. See also Gray v Motor Accidents Commission at [8]-[12].)

181 The conduct on the part of the Appellant to which I have referred in my consideration of aggravated damages, is conduct of a character that could justify an award of exemplary damages. A number of additional factors could also support such an award.

182 The public appeal of a programme like “A Current Affair”, in the success of which the Appellant has a clear financial interest, is significantly enhanced by actual footage of ‘dastardly deeds’ and ‘guilty men’ or ‘guilty women’. Intrusion onto the Respondent’s land was an important part of the value to the Appellant of its investment in the story, of a character that it could not obtain without committing a trespass.

183 Furthermore, the power of the mass media in comparison with an individual like the defendant is, in my opinion, a material consideration when determining whether conduct should be punished or should be deterred. In a democratic society power is not wielded only by instrumentalities of government. (Cf Uren v John Fairfax at 130-131 per Taylor J.) High-handed conduct approaching arrogance may well be manifest by private corporations. (See e.g. Wasson v California Standard Co (1964) 47 DLR (2d) 71, esp at 79, 80, 86. Note XL Petroleum at 461 “a large company” per Gibbs CJ.)

184 I would not, myself, have interfered with her Honour’s award of exemplary damages on the basis that it was not open to her Honour to find that the circumstances were such as to justify such an award. In view of the errors of law committed by her Honour, the discretion falls to be re-exercised by this Court. I have come to the conclusion that, on balance, this is not an appropriate case to award exemplary damages.

185 Such damages are awarded rarely and require something more than a finding of fault. (See Gray v Motor Accident Commission esp at [12] and [20]. See also Ellison v L [1998] 1 NZLR 416 at 419.) In my opinion, the Appellant’s conduct was not, in the circumstances of this case, of sufficient gravity to be described as contumelious disregard of the Respondent’s rights.

186 In reaching this conclusion I have in mind the fact that the conduct did not, for the reasons I have expressed above, affect privacy interests in the way an intrusion into a residence with respect to personal, rather than business, affairs would do. Furthermore, the issues involved raised matters of genuine public interest in the context of investigations by public regulatory authorities. Finally, the tone of the Appellant’s questioning, whilst forceful, was not insulting or overbearing.

187 The content of the confrontation is also of significance. At one point the Respondent engaged the Appellant’s representatives in discussion about telling his side of the story. Furthermore, when specifically asked to leave, Ms Brown indicated that they would. There is no evidence that they did not do so promptly.

188 In all the circumstances, in my opinion, exemplary damages should not be awarded.

189 The Appellant has been partly successful, on damages only. The appropriate order as to costs is that the Appellant should pay one half of the Respondent’s costs.

190 Her Honour’s order must be set aside, save as to costs. An amount needs to be computed for interest on general and aggravated damages. The parties should be directed to bring in short minutes of order to reflect these reasons.

191 MASON P: I agree with the Chief Justice

192 GROVE J: I also agree with the Chief Justice subject to one minor aspect concerning the reassessment of damages.

193 As the tape of the television broadcast revealed, after the intrusion into the property there were three separable aspects to the trespass, the confrontation of the respondent, the appearance of Ms Brown in front of the stacks of tyres and the interview with the truck driver. I share the conclusion that the hurt to feelings, humiliation and affront to dignity experienced by the respondent was aggravated by the conduct of the appellant but I would limit it to that conduct of which the respondent was aware at the time, namely the confrontation of him. I do not consider that aggravated damages flow from the other aspects of the trespass of which the evidence does not demonstrate the respondent had any contemporaneous knowledge. I would accept that it can be inferred that he gained awareness of what had happened when he viewed the broadcast but it is from that experience and not the trespass that any aggravating hurt and humiliation would have been felt in respect of those matters.

194 However, I would regard $25,000 as an appropriate enhancement of the assessment of compensatory damages in respect of the aspect of the trespass upon which aggravated damages should be awarded.

195 I therefore agree with the orders proposed.

**********

Citations

TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82

Most Recent Citation

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Statutory Material Cited

3

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CITATION:	TCN CHANNEL NINE PTY LIMITED v HENRY ALFRED ANNING [2002] NSWCA 82
FILE NUMBER(S):	CA 40232/01
HEARING DATE(S):	21/11/01
JUDGMENT DATE:	25 March 2002
PARTIES :	TCN Channel Nine Pty Ltd (Appellant) Henry Alfred Anning (Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 191; Grove J at 192

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 70238/98; DC 3218/00
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	B R McClintock SC / J Sleight (Appellant) S Littlemore QC / N Adams (Respondent)
SOLICITORS:	Gilbert & Tobin (Appellant) Priority Legal Services (Respondent)
CATCHWORDS:	TORTS - trespass to land - whether implied licence to enter - whether express licence to enter - where journalist and cameramen entered land with cameras rolling - scope of damages - consequential damages - whether damages for personal injury (mental trauma) recoverable - exemplary damages - whether necessary to separately identify amount - aggravated damages - TORTS - trespass to land - expert evidence - whether open to accept evidence - whether absence of cross-examination precluded acceptance - whether inadequate reasons for preferring evidence
LEGISLATION CITED:	Environmental Offences and Penalties Act 1984 Evidence Act 1995 Supreme Court Act 1970
CASES CITED:	ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 76 ALJR 1 Adams v Kennedy (2000) 49 NSWLR 78 Allsop v Allsop (1860) 5 H & N 534 at 536; 157 ER 1292 Anderson v Buckton (1719) 1 Strange 192; 93 ER 467 Anderson v Fairfax (1883) 4 NSWR 183 Annetts v Australian Stations Pty Ltd (2000) 23 WAR 35 Attorney-General v Hewitt [2000] 2 NZLR 110 Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 Barker v The Queen (1983) 153 CLR 338 Barker v The Queen (1994) 54 FCR 451 Bennett v Allcott (1787) 2 Tr 166; 100 ER 90 Bond v Kelly (1873) 4 Australian Jurist Reports 153 Bracegirdle v Orford (1813) 2 M & S 77; 105 ER 311 Bruce v Rawlins (1770) 3 Wils KB 61; 95 ER 934 Brunner v Williams [1975] Crim LR 250 Bunyan v Jordan (1936-1937) 57 CLR 1 Burdett v Abbot (1811) 14 East 1; 104 ER 501 Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 Caltex Oil (Australia) Pty Ltd v XL Petroleum (NSW) Pty Ltd [1982] 2 NSWLR 852 Coco v The Queen (1993-1994) 179 CLR 427 Daubney v Cooper (1830) 10 B & C 830; 109 ER 657 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Ellison v L [1998] 1 NZLR 416 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 Entick v Carrington (1765) 2 Wils 275; 95 ER 807 Environment Protection Authority v Anning (1998) 100 LGERA 354 Gray v Motor Accident Commission (1998) 196 CLR 1 HG v The Queen (1999) 197 CLR 414 Halliday v Nevill (1984) 155 CLR 1 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 Henry v Thompson [1989] 2 Qd R 412 Hillier v Lucas [2000] SASC 331 Hogan v A. G. Wright Pty Ltd [1963] Tas SR 44 Huxley v Berg (1815) 1 Stark 98; 171 ER 413 Inglis Electrix Pty Ltd v Healing (Sales) Pty Ltd (1967) 69 SR(NSW) 311 Janvier v Sweeney [1919] 2 KB 316 Johnstone v Stewart [1968] SASR 142 Lamb v Cotogno (1987) 164 CLR 1 Lee v Kennedy [2000] NSWCA 153 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 Lippl v Haines (1989) 18 NSWLR 620 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Mayfair Ltd v Pears [1987] 1 NZLR 459 Merest v Harvey (1814) 5 Taunt 442; 128 ER 761 Morgan v Tame (2000) 49 NSWLR 21 Morris v Beardmore [1981] AC 446 NRMA Insurance Ltd v Tatt (1989) 92 ALR 299 Nevill v Halliday [1983] 2 VR 553 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 76 ALJR 163 Papps v Police (2000) 77 SASR 210 Pettitt v Dunkley [1971] 1 NSWLR 376 Piglowska v Piglowski [1999] 1 WLR 1360 Pollack v Volpato [1973] 1 NSWLR 653 Pritchard v Long (1842) 9 M & W 666; 152 ER 281 Plenty v Dillon (1990-1991) 171 CLR 635 Plenty v Dillon [1997] SASC 6372 R v Marylebone Magistrates Court ex parte Amdrell Ltd [1998] EWHC Admin 322; [1999] Env LR D11 Robson v Hallett [1967] 2 QB 939 Russell v Corne (1703) 2 Ld Raym 1031; 92 ER 185 Sanders v Snell (1997) 73 FCR 569 Sanders v Snell (1999) 196 CLR 329 Semayne's Case (1604) 5 Co Rep 91a; 77 ER 194 Singh v Smithenbecker (1923) 23 SR(NSW) 207 Svingos v Deacon [1971] 2 SASR 126 T v Medical Board of South Australia (1992) 58 SASR 382 TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 Todorovic v Moussa [2001] NSWCA 419 Uren v John Fairfax & Sons Pty Ltd (1965-1966) 117 CLR 118 Wasson v California Standard Co (1964) 47 DLR (2d) 71 Waters v Maynard (1924) 24 SR(NSW) 618 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 Wilkinson v Downton [1897] 2 QB 57 Willcox v Kettell [1937] 1 All ER 222 Wilson v Layne (1999) 526 US 603 Wormald v Cole [1954] 1 QB 614 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-1985) 155 CLR 448
DECISION:	Parties to bring in short minutes to reflect reasons