LAWS1012 Lecture Notes - Lecture 5: Exxon, Implied Consent, Statutory Authority
16 May 2018
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5| Trespass to land
In this topic, we will consider the extent and limitations of the protection afforded by the tort of trespass
to land. Who is protected by this tort and who falls outside that protection? In what ways can a trespass
be committed? Does a trespasser have to be aware of the trespass? When will a person have a licence to
enter land? What is meant by land: how far does a persons interest in land extend into airspace and
underground? What types of interferences does it proscribe? Does it provide sufficient protection of
privacy in modern conditions? How has legislation altered or supplemented the common law rules? What
remedies are available against the trespasser? How are damages assessed? What if the damage caused
does not affect the value of the land? Does the action in the trespass provide a sufficient remedy against
media intrusion?
Scope of the tort:
a) Direct interferences with land; without lawful authority or justification; express and implied
licence; evocation of licence; statutory authority
• 'Trespass to land' involves the DIRECT INTERFERENCE with the plaintiff's land by the def.
• Trespass to land involves the following circumstances:
o Entry onto land without consent or license, express or implied, from the occupier, or other
lawful justification
o Remaining on land without consent/ license
o Remaining on land (after expiry of a reasonable amount of time) once consent has been
withdraw
• The possessor of land is able to unilaterally grant, deny or revoke consent. Once a person has become
a trespasser, the possessor is able to use reasonable force to remove them from their premises, so
long as force does not cause bodily harm.
o Southport Corp v Esso Petroleum Co [1954] 2 QB 182
▪ The facts: Tanker releasing oil into ocean, washes to port and causes damage
▪ The court:
This is not trespass to land
It may have been if it was dumped directly but it was not, it was merely
consequential and lacked immediacy
In order to support an action for trespass to land the act done by the
defendant must be a physical act done by him directly on to the plaintiffs
land.
o Public Transport Commission of NSW v Perry (1977) 137 CLR 107
▪ The facts: Perry had an epileptic seizure and involuntarily fell onto the railway line,
ran over by train.
▪ Sued the company
▪ The question/issue: Was she trespassing?
▪ The court:
No as there was no intention to trespass or negligence
Established: No intention or negligence means no trespass
o Halliday v Nevill
▪ Policemen arrested the plaintiff on his driveway after witnessing him drive without
a license
▪ Issue: Was the arrest unlawful? Was the police officer trespassing at the time?
▪ The outcome and reasoning:
There is an implied or tacit licence that one can use a driveway or pathway
to conduct business with the owner or move around an obstruction
Police simply came for questioning
No sign of revocation of licence due to an open driveway and walkway =
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implicit consent
Therefore no trespass
▪ The principle established:
Trespass to land comprises a direct interference without lawful authority.
The occupier may expressly or impliedly authorize entry or revoke that
authority
o TCN Channel Nine v Anning (2002) 54 NSWLR 333
▪ The facts: Channel Nine entered a property of Anning and filmed a raid by the
Environmental Protection Agency to remove hazardous tiles. Anning ordered
Channel Nine to leave the property. However, a camera man entered the back of the
property to get a money shot. They still showed three clips of the film
▪ The question:
Were the acts of the appellant authorized by the respondent?
Can damages be recovered even though the trespass wasnt the actual
damaging act?
▪ The court:
Implied consent to enter is only for those wishing to conduct business with
the plaintiff. For example, to ask the plaintiff if they could film and talking to
the plaintiff. However, in this case, they entered his land without the
purposes covered by implied licences as they went there for filming rather
than an interview
Mr Anning revoked any licences when he told them to leave – there was
reasonable time for them to leave
In terms of damages: There can be recovery for consequential damages in
the case of intentional torts when the harm is the natural and probable
consequence of the tortious act
▪ Principles established:
If licence is expressed or implied, your entry must be for that purpose.
Otherwise you are committing a trespass ab initio if you enter for a purpose
wholly alien from the purpose of the implied licence
Channel Nine argued that they had special priority to seek to interview
someone. This was false as no group has any rights over and above other
individuals
o Coco v The Queen
▪ The facts: Mr Coco was arrested and charged with some criminal offence. The
Federal Police had got a warrant to use a listening device on his property, granted
under a judge, which authorised the use of the listening device. The police dressed
up as Telstra employees, went undercover and installed the device. The police got
200 hours of recordings which are used in his prosecution.
▪ The issue:
Could the evidence be used or was it illegally obtained?
Invasion of Privacy Act (1971) Qld: Does not allow the recording or
monitoring of conversation through device but this is allowed if a permit
was granted
Was the permit valid to enter onto the land and use the listening device?
▪ The court:
Although statutory authority allows for the device to be used, s 43 of the act
does not confer power on a judge to allow tortious acts to plant that device
Every unauthorized entry upon private property is a trespass. The right of a
person in possession or entitled to possession of premises to exclude others
from those presmises is a fundamental common law right. The judge cannot
authorize the action unless legislation expressly, with necessary implication,
abrogates this fundamental common law right
▪ The principle established:
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Statutory authority to engage in what otherwise would be tortious conduct
must be clearly expressed in unmistakable and unambiguous language
o Kuru v New South Wales (2008) 236 CLR 1
▪ The facts: The police go into a flat in response to a noisy argument. The wife had left
the house, so the husband told the police her phone number and asked them to
leave. The police refused to leave and Kuru later made contact with an officer. The
officers punched him back, sprayed him with capsicum spray and locked him in a
confined room with nothing but undies
▪ The issue:
Was there lawful justification for the trespass?
Therefore was there false imprisonment, battery or assault?
▪ The court:
▪ The entrant must leave a land as soon as it is reasonably possible and once the
implied licence to enter is removed
▪ It is trespass as the police refused to leave and stayed longer than permissible
▪ The principle established:
The entrant must leave a land as soon as it is reasonably possible, once the
implied licence to enter is removed
(b) Title to sue. Trespass to land as a wrong to possession, not ownership as such
o Newington v Windeter (1985) 3 NSWLR 555
▪ The facts: The plaintiff had acss to an adjoining land which they did not own but had
used constantly for private events and had maintained the land and paid rates for it.
The defendant owned two blocks of land adjoining the western boundary of The
Grove. The defendant replaced the fence, which ran along the western boundary of
The Grove and effectively prevented access from that direction with one that
contained two gates giving access from her land to the Grove.
▪ The issue:
Did the plaintiff have the title to maintain an action of trespass and deny the
defendant any right to use the Grove?
▪ The court:
The respondents are not the owners of the registered title of The Grove, but
that fact does not prevent them maintaining an action of trespass against the
appellant
A person who is in possession of land adverse to the true owner has a legal
interest in the land even though the twelve year limitation period has not
expired
As long as a person does not abandon their possession for less than 12
years, allowed them to exclude any person from the land who does not have
a better title
Justice McHugh says they have paid rates on land, excluded other people
coming onto the land, they have held functions there, cultivated a garden.
They have undertaken things acting as if they possess the land. They have a
greater possessory title than Newington
▪ Principles established:
Actual possession, not ownership of such, confers title to sue in trespass and
the plaintiff must prove actual possession of the land at the date of trespass
Possession is a question offact
o Rodrigues v Ufton (1984) 20 VLR 539
▪ The facts: There wasa dispute between neighbours who own adjoining properties.
They are having a boundary dispute. The defendant moves the fence to a position
where he thinks the boundary should be. The plaintiff says this encroaches on her
land.
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Document Summary
In this topic, we will consider the extent and limitations of the protection afforded by the tort of trespass to land. Scope of the tort: direct interferences with land; without lawful authority or justification; express and implied licence; evocation of licence; statutory authority. It may have been if it was dumped directly but it was not, it was merely. Sued the company: the question/issue: was she trespassing, the court: No as there was no intention to trespass or negligence. Established: no intention or negligence means no trespass: halliday v nevill, policemen arrested the plaintiff on his driveway after witnessing him drive without a license. Was the police officer trespassing at the time: the outcome and reasoning: There is an implied or tacit licence that one can use a driveway or pathway to conduct business with the owner or move around an obstruction. No sign of revocation of licence due to an open driveway and walkway = implicit consent.
