Plenty To Learn From Trespassing Case

By Andrew Goode, Partner, Mellor Olsson.

I suspect many rural residents have seen notices on farmgates trying to keep unwanted visitors – often miners - from entering farmland. These signs refer to a High Court case of Plenty v Dillon.

I had reason to review that case for a proposed seminar to valuers recently, and thought a summary of its principles would be of interest to readers.

Plenty v Dillon involved a High Court appeal where Mr Plenty, the owner and occupier of a farm near Port Pirie, challenged the right of Mr Dillon and others to enter his land to serve a summons, without his consent.

Mr Plenty succeeded on the appeal - the entry by Mr Dillon and others was held to be wrongful, and he was awarded judgment against the defendants, and damages. 

The common law rule is that a person is a trespasser, unless that person enters land with the consent, expressed or implied, of the occupier. It is important to note however, that sometimes a person has a right to enter land without the occupier’s consent, if they fall within certain exceptions to the common law rule or where allowed by government legislation.

Two of the appeal judges - Gaudron and McHugh JJ - noted that in certain cases a police officer, or even a citizen, can enter and even break into premises, without the occupier’s consent.

The Court noted there were a number of government statutes that confer power to enter land or premises without the consent of an occupier. However, as they stated, “The presumption is that, in the absence of express provision to the contrary, the legislation did not intend to authorise what would otherwise be a tortious [ie trespass] conduct.”

In this case none of the exceptions applied, and a trespass occurred.

Interestingly, those two Judges had substantially different views to the Supreme Court trial Judge who had said that even if a trespass had occurred, it was “such a trifling nature as to not be found in damages”.

They noted that once a person obtained a verdict in an action of trespass he or she was entitled to an award of damages, and considered the trespass was not of a “trifling nature”, particularly as the defendants had entered Mr Plenty’s land against his express wish.

“If the Courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as a sense of injustice which is apt to be generated by the unlawful invasion of a person’s right, particularly when the invader is a government official.” The judges said. The Appellant [Mr Plenty] is entitled to have his right of property vindicated by a substantial award of damages.”

The other three Judges also provided some interesting quotes from past cases, including the following, from an old English case:

“The poorest man may, in his cottage, bid defiance to all the forces of the crown.  It may be frail – its roof may shake – the wind may blow through it – a storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.”

This was a speech by the Earl of Chatham in 1763 to the House of Commons which was referred to with approval in a later English case. I wonder if the Earl would have been so confident in the 1520s during the reign of Henry VIII?

Plenty v Dillon represents an example of judges upholding the rights of the citizen against the government, which is a vital part of a real democracy.

While I would not suggest that our legal system is perfect, at least we know that if we do get before a Court, it will deliver a judgment without fear of whether it sits well with the government.

There are many countries where you would be concerned as to their independence.

To read the full copy of this judgement, please click here.

For more information contact: 

Andrew Goode, Partner 

Mellor Olsson 

08 8414 3411

agoode@mellorolsson.com.au 

or visit www.mellorolsson.com.au

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