Wilson v The State of New South Wales

[2011] HCATrans 218

[2011] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S40 of 2011

B e t w e e n -

DAVID WILSON

Applicant

and

THE STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 2011, AT 2.34 PM

Copyright in the High Court of Australia

MR T.G.R. PARKER, SC:   May it please the Court, I appear with my learned friend, MR J.C. SHELLER, for the applicant.  (instructed by Greg Walsh & Co)

MR P. BODOR, QC:   May it please the Court, I appear with my learned friend, MR M.T. HUTCHINGS, for the respondent.  (Crown Solicitor (NSW))

CRENNAN J:   Yes, Mr Parker.

MR PARKER:   The first thing is that this application requires an extension of time.  The Court may have seen that the time for appealing expired at the end of the first week in January and the application was not, in fact, filed until about 10 days later.  The reason for that given in the affidavit was that junior counsel who was to be required to settle the application was not available because of the time of year and a notification was sent to the Crown Solicitors advising them – this was before the expiry of time – that it was intended to make the application.

CRENNAN J:   Is it opposed?

MR BODOR:   No, your Honour. 

CRENNAN J:   Very well.  You have the leave.

MR PARKER:   Thank you.  The issue which we seek to raise, and the only issue I propose to address orally, is the issue concerning the implied licence.  A question in particular is, how does one revoke the implied licence which is being said is the necessary incident of having an open door and an open path, or an open gate and an open path, anywhere in suburbia.  There are two relevant entries to the property which need to be considered in that context.  The first was when the sheriff’s officers first approached the property, they came up to the verandah and they had a conversation with the inhabitants of the house from the verandah and then there was an altercation on the veranda.

That particular first entry, as I will call it, fell into two phases.  There were two sheriff’s officers and during the first phase the lead was taken by the female sheriff’s officer, Ms Lomas.  So what happened was, she spoke during that phase to the applicant, Mr Wilson.  She did not get anywhere and at the end of that phase, the other sheriff’s officer, Mr Davies, took over and he continued to speak to Mr Wilson at which point Mr Wilson summoned Mrs Wilson.  The Court will have seen that there is a series of findings made at first instance, which are repeated in the appeal judgment, about what happened then.  At the end of that discussion, which was a tripartite discussion, Mrs Wilson seems to have found difficulty to get a word in, but it was apparently at least a tripartite discussion ‑ ‑ ‑

CRENNAN J:   Mr Wilson seemed to suggest Mrs Wilson was the owner of the house, is that correct?

MR PARKER:   Yes.  It is not correct as a matter of fact.  In fact, Mr Wilson was a co‑owner and co‑occupier of the house.  As the trial judge ‑ ‑ ‑

CRENNAN J:   I was referring to the correctness of what impression Mr Wilson was conveying to the sheriff’s officers.

MR PARKER:   Indeed.  The finding was that Mr Wilson did not want to identify himself and that he went, therefore, at some lengths not to identify himself as an owner of the property.  That was the finding.  In particular, what was relied upon was what happened during the second phase, that is, calling his wife out.  When the request was, “Can we speak to the owner?”, he says, “Come out and tell the sheriff’s officers to get off your property.”  That was the finding and both the trial judge and the Court of Appeal laid emphasis on that and said, well, that showed that he did not want to identify himself as the owner and they said that would convey that he was not the owner and she was.

At the end of that process, she identified him as her husband and at that point there was a physical confrontation.  He came out through the screen door, he pressed his chest up against the male sheriff’s officer, Mr Davies.  The female sheriff’s officer jumped out of the way.  Mr Davies and Mr Wilson then separated again.  Mr Davies threatened Mr Wilson with a can of capsicum spray or something like that and Mr Wilson then retreated back inside and Mr Davies and Ms Lomas, recognising that Mr Wilson did not want them there, retreated off the property.  They then went across the street, had a cigarette, called the police and then there was what I will call the second entry.

KIEFEL J:   I think you might take it that we have read the factual background to this matter.

MR PARKER:   Yes.

KIEFEL J:   The reasons why special leave should be given are addressed in your written submissions.  I think they acknowledge that you have to address both why a question of principle in an area of law which may be regarded as well settled in relation to licence needs to be considered at all again and, further, if one is to regard this as a potential case for revisiting decisions below on the basis that they are incorrect, why this Court should be involved in such a process where this matter has already been before the District Court and the Court of Appeal.

MR PARKER:   Can I just try to do that by drawing the Court’s attention to some evidence which we sent up in the attachment which was filed yesterday?

KIEFEL J:   What are you referring to?

MR PARKER:   I understand yesterday there was filed with the Court a document styled “Applicant’s List of Authorities”.

KIEFEL J:   With the transcript from the hearing is the additional material, is that right?

MR PARKER:   Yes, that is right.  

KIEFEL J:   Your opponent does not have it?

MR PARKER:   Regrettably, I understand that Mr Bodor does not have a copy.  I will hand him my copy.  Could I ask the Court to look at page 540.

CRENNAN J:   Did you say 540?

MR PARKER:   I am sorry, I meant to say 547.  This is the evidence of Mr Davies.

CRENNAN J:   What is this directed to in terms of principle?

MR PARKER:   What this is directed to is demonstrating to the Court that the case presented by the applicant was that, although Mr Wilson had not identified himself, he had clearly and explicitly, before even his wife came onto the scene, said to the officers to leave.  Our contention is that that should have been enough.

CRENNAN J:   For a revocation.

MR PARKER:   Yes.  He was in fact the owner.  He in fact told them, before his wife ever came onto the scene and the question of him avoiding the question of who the owner was, he in fact told them to leave.

CRENNAN J:   This is a complaint, then, is it not, about the application of Cowell v Rosehill Racecourse to the facts of this case?

MR PARKER:   No, because the principle that I have stated it in that form, if I am right about the facts, that was not sufficient on the Court of Appeal’s approach, because the Court of Appeal adopted an extension of Cowell’s Case.  All Justice Dixon said in Cowell’s Case was that you have to give notice.  Of course notice had to be given.  But if the Court would go to paragraph 51 of the Court of Appeal’s judgment which should be found at page 115 of the application book, what happened is that the Court of Appeal adopted an additional element to the test.

CRENNAN J:   Where do we find that?

MR PARKER:   Between lines 30 and 40.  The court says:

This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it –

then two conditions are satisfied –

both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation.

CRENNAN J:   Then you have to read paragraph 52 in that context, do you not?

MR PARKER:   Yes.  The point I am seeking to make by referring to the evidence was that on the evidence he in fact told them, before the events which are referred to in paragraph 52, to leave the property.  Now, if the Court of Appeal is right and he needed to go further and identify ‑ ‑ ‑

CRENNAN J:   You have to confront, have you not, in relation to 52, irrespective of timing, that the communications from Mr Wilson to the sheriff’s officer conveyed the notion that Mrs Wilson was the owner of the property?

MR PARKER:   That is in the second phase of the first entry.  If we are right – can I emphasise, the judge’s findings, we say, in the court below made it fairly clear that this is in fact what happened, but if we are right in saying that before he even called his wife, before the question of who the owner was even arose, he said, clearly and explicitly, “Get off the property”, then from that point forward they were trespassers.

The reason why that argument could not succeed was only because the Court of Appeal, as the trial judge did, adopted the view that it was not enough to say, “Get off the property”.  That is their second requirement, at about line 40 on page 115.  There is the first requirement that they imposed because it had to come, they said, from “a person with the authority to revoke the licence”.  They seemingly approached the argument on the basis that, although he had said, “Get off the property” during the first phase of the altercation, he had not identified himself as the owner at that point.  That is the only basis, in our submission, upon which the decision could stand.

CRENNAN J:   But these were all factual matters going to the ability of a particular person to revoke.

MR PARKER:   There is a factual aspect to it, of course.  What is also involved is a legal question of whether you have to show that not only you have authority in fact, you have got to show, according to the Court of Appeal, that you have manifested that authority in some way so that the person who is confronted by you coming out and saying, “Get off the property” ‑ ‑ ‑

KIEFEL J:   I do not really understand why you say that differs from the previous authority.  You would have to manifest what you are communicating for someone to be able to understand what you are saying.

MR PARKER:   That is why they are stated as two requirements.  There is no question that you have to say something which conveys to the person who is receiving it that the licences are revoked.  It has got to be unequivocal in that sense.  But that was not in issue here, we say, because he said, “Get off the property”.  The reason why the claim failed is because he had not identified himself as the owner. 

KIEFEL J:   I think that is perhaps putting it round the other way.  The finding of the Court of Appeal was that the communications from Mr Wilson were such as to convey to the officers or to a reasonable person in their position that he did not have the authority to revoke their implied licence.  Now, what is wrong with that conclusion?

MR PARKER:   What is wrong with it is that it ignores the evidence to which I have referred which was supported by the finding at first instance.  Can I just try to make that good.  The actual instruction is on page 547, line 24.  It is clear from the context that the sheriff’s officer is talking about the first phase, that is, while the female officer was talking and before Mr Davies took over and asked about the owner, and it is repeated in a number of places, in particular page 548, line 36, and it can be seen again at page 605, line 16.  So there was just absolutely no doubt on Mr Davies’ own evidence that he was told to leave the property by Mr Wilson in quite explicit terms.  Ms Lomas gave evidence and she also referred to something similar at page 733, line 35.

Now, when the trial judge came to deal with that, he picked up on the words “Get off my property” in line 36 on page 733.  He said – and this is at application page 6, between lines 40 and 50 at about line 45 – he says, “I do not accept that he used the possessive pronoun” because he was trying to avoid being identified.  We do not challenge that finding, but the judge never suggests that he did not say, “Get off the property”.  Now, it appears that the way the judge dealt with it is at application book 9 between lines 20 and 30 where he says:

at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence.

We accept that.  That is true.  There is no challenge to that.  The question is whether that is a requirement.  That is the issue.  The trial judge proceeded on the basis that it was and, as the Court can see from page 115, so did the Court of Appeal.  They said it is not enough that you in fact have the authority.  It is not enough that you in fact say something which objectively conveys to someone that you do not want them there.  You have got to show that you are the owner, or it has got to be clear to them that you are the owner.

CRENNAN J:   That is because a licensee, or a reasonable person in the position of a licensee, has to understand that what is being said about getting off the property is coming from a person with authority to revoke the licence.  Is that not the real point?  That has been dealt with, I would have thought, in paragraph 52.  That is the point.

MR PARKER:   That is the question.

CRENNAN J:   That is the question.

MR PARKER:   You have to say, if asked, “Yes, I am the owner”.

CRENNAN J:   That is not quite right, is it?  If you have created the impression and conveyed to the licensee, or a reasonable person in the licensee’s position, that you are not the owner at some point, that has to be taken into account.

MR PARKER:   But paragraph 52 is talking at a time after he had already told them leave.

CRENNAN J:   Yes, I understand that is what you are saying.

MR PARKER:   That is the point, in essence.  The other point we want to make is, this is an area where the law really is not settled.  In fact, it has not been determined.  The Court will see that no authority is cited for the proposition that you have got to show not only that the licence has been revoked by someone who actually has authority, but that the person who receives the notification appreciates that the authority exists.  Now, there is no authority cited for that.  There is no case which ‑ ‑ ‑

CRENNAN J:   It seems in a way obvious, though, does it not, that the revoker, the person purporting to revoke would have to be in a position to do so?

MR PARKER:   There are two ways of looking at it.  One way is to say that all that matters is whether, in fact, you have authority and, in fact, you say something which revokes them and in that case, if the person does not leave and takes the risk, then if you have got the authority in fact, then they are a trespasser.  The other is the view taken by the Court of Appeal that you have got to go further and if called upon to do so, explain why you have got the authority.  Now, that is the question which is posed and we submit that if one looks at trespass generally – because we are in the area of general principle here.  Trespass is an intentional tort.  The question is whether you are, in fact, on a point on the earth’s surface which happens not to belong to you, it happens to belong to someone else and that other person has not given you leave and licence to be there.  So that there are lots of cases which say it does not matter whether you honestly believe you are not trespassing.  You might believe that you own the land next door and you might walk on it in that belief, but that does not protect you from trespass because it is an intentional tort.  There is no negligent element to it. 

That is why we say what the Court of Appeal has done by introducing this element, it is something which, if we were dealing with the negligence, might seem reasonable, but if we are dealing with a tort and with principles of contract law which have operated similarly on a no fault basis, if I can put it that way, or rather a non‑religion basis usually, then we say there is room for a result which says no, the only question is whether, in fact, the licence is revoked by someone who, in fact, has authority.  We do not have any other requirement.

CRENNAN J:   Would apparent occupation be enough?

MR PARKER:   We would say that it might be and that would be the converse case.  If somebody who was apparently in occupation and told you to get off but did not, in fact, have authority to do so whether you were a trespasser, well, that is the converse question.  That does not have to be considered here immediately and it is a nice question.  There is no authority on either of these questions.  Can I just emphasise one of the cases that has been referred to – where this has been referred to here.  We have said that the Court has considered the issues in this general area four times.  This particular question has not been considered, not by this Court, not by the Court of Appeal beforehand. 

Among the authorities referred to was a case called Davis v Lisle. This is an English Court of Appeal decision. I hope the Court has a copy of that. It is in the Kings Bench reports, [1936] 2 KB 434. Can I hand copies to the Court and I do apologise for this. This is a case that was cited with approval by Justices Gummow and McHugh in their judgment in Plenty v Dillon.  What it involves is a case where – if the Court will go to page 435 – the appellant was a member of a firm which had a garage in London – interestingly therefore not necessarily the sole owner – and what happened was the police came onto the premises in pursuit of a truck which had been parked outside which they were suspicious about and started asking questions.  If the Court would go to the bottom of page 435 at about point 8 on the page:

The appellant then entered the garage from the street, pushing past P.C. Rose and saying:  “What’s this?  What do you want here?”; to which P.C. Rose replied:  “My colleague is a police constable.  May we see the person in charge of this vehicle?”  The appellant then in abusive and obscene language –

another point similar to this case –

said:  “Get outside – you can’t come here without a search warrant.”  The respondent was in the act of producing his warrant card when the appellant rushed at him –

Now, if the Court of Appeal is right here, then on the principle that they stated, the police would have been entitled to say, especially as this man comes in off the street, “Well who are you?  What is your authority to tell us to do anything?  And we are going to stay here and investigate until we are told by someone who is the owner to get off.”  When one sees that, one sees the potential width of the principle the Court of Appeal’s decision stands for, because if there is a licence to enter which lasts until it is revoked, then the person who enters can stay until presumably he is told or she is told by someone who actually has apparent or ostensible authority to get off and presumably is entitled to say when first challenged and told to leave, “No.  I would like to see somebody.  What is your authority for telling me that?  How do I know you are the owner?” 

So for that reason, in our submission, there is a point, in this case, of importance because that question has never been decided by this Court nor, it appears, by any other court, at least in recent times.  We submit that to adopt the Court of Appeal’s approach is out of line with the general approach that one has in trespass cases and it is also arguably out of line with the sort of authority which we can see in this particular case.  Now, there is one other point I should mention.  It is not just the first phase ‑ ‑ ‑

CRENNAN J:   I think you are just about out of time, but, yes.

MR PARKER:   Thank you, your Honour.  All I wanted to say was, of course, there are two entries and by the time of the second entry, of course, it was blatantly obvious that Mr Wilson did not want the particular officers on the property, yet the Court of Appeal held that the implied licence continued for the purpose of arrest and that is only consistent with a view that again, because he had not actually said, “Well I am the owner”, then they were entitled to, in effect, stay there until and unless he said he was.  Those are our submissions, if the Court pleases.

CRENNAN J:   This application concerns well‑settled principles which apply to the revocation of a licence to enter land and this application raises no new question.  The appeal proposed would not enjoy sufficient prospects of success to warrant a grant of special leave.  Further, the interests of justice do not require such a grant.

Special leave to appeal is refused with costs.

I should have indicated, Mr Bodor, we did not require your assistance.

MR BODOR:   Thank you, your Honours.

CRENNAN J:   Thank you.

AT 2.58 PM THE MATTER WAS CONCLUDED