Sunday, December 6, 2009

High Court Rulings on Trespass

In Robson v Hallett [1967] 2 QB 939, Lord Parker CJ said (at 951):
"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. However, the licence may be withdrawn by giving notice of its withdrawal. A person who enters or remains on property after the withdrawal of the licence is a trespasser.”

A sign at your front entrance clearly indicates that you do not give permission unless by invitation therefore entry is prohibited. Information from QLD has indicated that the police will enter through an open gate regardless of the sign, but cannot open one. Therefore, keep your gates closed. Police have also indicated that they cannot deliver a summons past a proper Trespass sign unless a felony has been committed under the Crimes Act and a warrant issued.

“The very limited nature of a constable's right to enter private property for the purpose of arrest is by itself a compelling argument for holding that, without making major changes to the law, the common law cannot logically recognise the service of a summons as a ground for entering premises against the will of the occupier. It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”

Lord Edmund-Davis in Morris v Beardmore stated: “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 the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official.”

Every Australian Parliamentary Act now states that, under that Act, public officials may enter your property for the purposes of that Act.

I firmly believe that is not true, given the previous quotes. Here are notes from the 6 major Australian High Court Trespass cases we use to define our rights in this area.

And remember, Lord Coke’s quote “Common Law doth control Acts of parliament and adjudges them when against Common Right to be void.”

HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property, the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed with costs, in the High Court.

BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”Notes from the case: “While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact…….The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.

“The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.”

GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.

“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”

“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”

“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”

In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.

Suspicion without proof is not enough for a warrant to be issued.

PLENTY v DILLON [1991] HCA 5; (1991) 171 CLR 635 F.C. 91/004 (7 March 1991)
Police entered a rural property to issue a summons. The owner told them to leave, a scuffle ensued, the owner was arrested for assault. His appeal to the High court won with costs for damages against the 2 constables.

“Common law authority tends against (allowing for entry re delivery of a summons when entry) has been forbidden by the person in possession and entitled to possession thereof.”

“Next, it is submitted that the statutory power to serve a summons, either personally or non-personally, carries with it the right to make such entry on land as is necessary to effect service…..The grounds to justify to this fail. Police entry was wrongful.”

“Serving a summons is not an ‘execution under the process of any court of justice’; it is simply the commencement of the process.”“It would be incongruous for the common law to permit entry for the purpose of arrest in a few cases only but to permit entry for the purpose of serving a summons in every case whatsoever.”

· NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady, chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.

‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”

“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”

KURU v STATE OF NSW [2008] HCA 26 (12 June 2008)
The police were called to a domestic dispute. The woman had gone to her family and after police checked by phone on her safety, the man asked them to leave several times. An altercation ensued, the man was arrested. He appealed the arrest and his appeal was upheld with costs against the police.

After the man had asked the police to leave…”there was neither statutory nor common law justification for the police remaining on the appellant’s premises.”

S 357F Crimes Act 1900 (NSW)(3) Except as provided in subsection (4), a member of the police force may not enter or remain in a swelling-house by reason only of an invitation given as referred to in subsection (2) if authority to so enter or remain is expressly refused by an occupier of the dwelling-house and the member of the police force is not so otherwise authorizes (whether under this or any other Act or at common law) to so enter or remain.

The case hinged on 3 facts:
1. an occupier of the dwelling-house had invited the police to “look around’ the flat
2. an occupier of the dwelling-house had then asked the police to leave
3. the police officer did not leave and remained on the premises for longer than it would reasonably have taken them to leave.

“Regs 8 and 9 of the Police Regulations 2000 (NSW), coupled with ss6 and 201 of the Police Act, prescribes a form of oath or affirmation to be taken by a police officer under s13 of the Police Act. The prescribed for of oath or affirmation contained a promise to ‘cause Her Majesty’ peace to be kept and preserved……s201 of the Police Act made it an offence to neglect or refuse to carry out any lawful duty as a police officer.”

COMMONWEALTH v NSW [1923] HCA 34; (1923) 33 CLR 1 (9 August 1923)
This case was not about trespass but verifies many of the ownership rights on Fee Simple land.

Remember in a previous post, I gave details of the 4 elements of ownership that are carried in a Fee Simple Title Deed.
1. tenements
2. messuages
3. corporeal hereditaments
4. incorporeal hereditaments

First we must remember that many words have different legal words or had different original meanings to our current understanding.

Therefore, the word Tenement in 1. does not mean a hovel, shacks, etc. In a narrow sense it simply means buildings, however, in the broader sense as attached to a Fee Simple Grant, it means not only the land, but everything of a permanent & solid nature attached to the land, so the buildings, the rents, the leases, etc.

In 2. Messuages is a term for dwelling house. In essence this ownership right is permission to build and live on the land.

At 3. & 4. we come to the Hereditaments. These are things capable of being inherited, including not only the land, but everything thereon.

Corporeal Hereditaments are the tangible/physical elements of that inheritance. According to Blackstone’s Commentaries on English Law 1765 (still used in the High Court of Australia today): ”This consists of substantial and permanent elements of the land – the ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includes buildings, as they use the land as their foundation. Water cannot be owned, but the land which holds it can. In its legal significance, land has an indefinite extent both upwards and downwards to the centre of the earth.”

Incorporeal Hereditaments are the intangible elements of that inheritance. This is a right issuing from the physical element of land, such as rent, incomes from an enterprise on the land. They are a right to have an idea that will become physical on the land, ie to develop a business and produce an income. An incorporeal hereditament is the things we do with our land including waste it.

Now in the case we are discussing, the dispute was between the State of NSW and the Federal Government over mining land, which the Federal Government were resuming. The State wanted full compensation.

As the dispute was about mining, many comments were made about the minerals under the surface of the ground. All of the following quotes from this case cover the facts stated in Corporeal Hereditaments, that we own all the natural elements of our land from the top of the sky to the centre of the earth.

“…..”land the property of a State” covers the whole soil from the surface to the centre and everything which is physically incorporated in it including the Royal metals.”

“The power given by s13 Land Acquisition Act is to acquire ‘land’, and prima facie that means to acquire the soil from the surface to the centre.”

“….by its definition of the word ‘land’, enables the Commonwealth to acquire interests in, or rights, powers or privileges over, land as well as land in its ordinary meaning, namely, ‘that in respect of which you have a right from the centre of the earth to the heaven above.”

“As a natural fact, gold and silver, neither more nor less than copper or tin or platinum or clay or oil, are part of the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth, which is called ‘land.’”“….trees growing on the land are, according to the received legal definition of ‘land’, regarded as part of it.,,” unless reserved to the Crown.

When resuming land…..”the full contents of the parcel of land pass; the ’land’ being measured superficially by metres and bounds and extending actually downward indefinitely and notionally upward indefinitely, is that which is ‘passing to the Commonwealth’ “ when the resumption occurs.

Many properties are now faced with Mining companies assessing the land for the minerals under the soil. Once miners had to pay full royalties for whatever they found in your land. Since the 1950’s approx, the government restricted that to the top 6 inches.

Did the government have a Letters Patent to re-enter our land in this manner and reduce our income from our land? In effect, they removed part of our Incorporeal Hereditaments – a right sold to us by the King/Queen who reserved the mineral rights, it is true, but not any royalty income via a depth in the soil. And this has led most people to believe they only purchase the top 6 inches of the soil. Not true. Absolutely not true. And clearly verified by this High Court case, which is still current in Australian law, being a CLR case – law precedent case.

1923 confirms the rights in our Fee Simple title.
When we purchase the land, the Crown guarantees that we buy that land free and clear Remember that the Abolition of Tenures Act 1660 & the Imperial Acts Application Act 1969 - SECT 36 both confirmed that we take on no debt through the purchase of the land. This case now tells us how the Commonwealth Government do resume the land free and clear also.

“…the lands have vested in the Commonwealth for an absolute and unconditionable estate in fee simple freed and discharged from all reservations, rights, royalties, conditions and obligations of any kind whatsoever to the State of NSW.”

“…and be freed and discharged from all trusts, obligations; estates, interests, contracts, licences, charges, rates, and easements, to the intent that the legal estate therein, together with all rights and powers incident to…..”

“The word ‘land’ is, and has been….defined by S5 of the Lands Acquisition Act as including ‘any estate or interest’ in land – legal or equitable – and any easement, right, power, or privilege over, in, or in connection with land…”

“No implied limitation can be placed on the fullest meaning that can be given to the word ‘property’ in s51(xxxi) and s85 of the Australian Constitution.”

“s22 Acts Interpretation Act 1901…so as to include ‘messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein’ and ‘estate’ to include ‘any estate or interest, charge, right, title, claim, demand, lien or incumbrance at law or in equity’….”

“…sec 16(1) of the Act applies: so that the land decribed in the notifications became vested in the Commonwealth ‘freed and discharged from all trusts, obligations, estates, interestes, contracts, licences, charges, rates and easements, to the intent that the legal estate therein, together with all rights and powers incident thereto or conferred by this Act, shall be vested in the Commonwealth.”

“….S17 (of the Act)includes not only the corporeal land but every interest therein, and any easement, right, power or privilege over, in or in connection with that land.”“From Challis’s Real Property, 3rd ed., p218, it is stated with perfect accuracy (remember these are the words of a High Court Justice); ‘In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate; ….A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the right to commit unlimited waste; and for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing except the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present day confers absolute right, both of alienation by inter vivos and of devise by will.”

1923 clarifies where a Torrens Title registration affects our ownership.
“Real Property Act 1900 provides by s13, as follows: (1) All waste lands……when alienated in fee, be subject to the provisions of this Act. (2) the grants of such land shall be in duplicate, and every such grant, in addition to proper words of description, shall contain a diagram of the land thereby granted on such scale as the Governor directs, and shall be delivered to the Registrar-General, who shall register the same in manner hereinafter directed.”

“It will be observed that it is only when land in this class is ‘alienated in fee’ by the Crown that it becomes subject to the provisions of the Act………Unless there has been an alienation by Crown grant of an estate in fee simple, the Registrar-General is no authorized by the real Property Act to take any step in the direction of registration or bringing the land under the Act, or issuing a certificate of title thereto. Unless……there is nothing which the Act authorizes the Registrar-General to enter in the register-book and against which he can record any instrument, dealing, or matter affecting such land.”

“His action is a State service, not an individual service.”

1923 clarifies Compensation is a Commonwealth issue.
“s27 Land Acquisition Act 1906, it is provided that where any Crown land is acquired by compulsory process the State shall be entitled to compensation, to be estimated as if the State were the proprietor of an estate in fee Simple.”

“Clearly, since the Lands Acquisition Act 1906 was passed under the power granted in s51(xxxi) of the Constitution, any ‘property’ specified in the statute may be taken provided “just terms” are available by law. Clearly also the same results must follow in the case of land taken compulsorily under the statute as in the case of the Constitution. The Constitution suo vigore passes instanter on the transfer of the ‘Departments’ the property used in connection therewith; the statute, under constitutional authority, passes, when its conditions are satisfied, the property taken for the ‘purposes’ indicated. The result, however, must in each case be the same, because in each case the Constitution is the ultimate basis of title.” “here we deal with….a Constitution distributing property and powers between different organs of the King’s government.”

“Where any land (other than Crown land) is acquired by compulsory process, the owner of the land shall, if deprived of the land in whole or in part, be entitled to compensation under this Act (Land Acquisition Act 1906).”“17 sub-section2 says: the compensation shall be estimated as if the State were the proprietor of an estate in fee simple in the land, subject to any estate or interest which any person had in the land at the time of its acquisition by the Commonwealth.”
‘s5, Interpretations, Lands Acquisition Act 1906, the word ‘owner’ includes, with respect to the land, ‘any person who under this Act is enabled to sell or convey the land to the Commonwealth’; and ‘land’ includes any estate or interest in land (legal or equitable) and any easement, right, power or privilege over, in or in connection with land. The owners of such outside interest appear to be entitled to all costs, charges and expenses of all conveyances and assurances of the interests (s61 (1)(a)); and this right would be anomalous if such owners were not also entitled to compensation.”

Dictionary of Important Words
Legal definition of Implied – where circumstances and not words appear to create an intention.
Legal definition of Tort – A legal wrong committed upon a person or property, ie trespass, theft, etc
Legal definition of Statutory – A legislatory act, enacted and established by the will of the government of the day.Legal definition of Common Law – Not modern civil law – comes from Anglo-Saxon times – relates to government, security of person and property, deriving from ancient usages and customs – fixed and immutable rules and principles. The background to Common Law is biblical principles.
Legal definition of Interest – General term denoting property in land or chattels. Particularly any right in the nature of property, but less than the title; a partial or undivided right; a title to share.
Legal definition of Alienation – Transfer of property and possessions of lands, tenements, or other things from one person to another. Absolute conveyance of real property.
Legal definition of Inter vivos – Latin: refers to property transfers between living persons, as opposed to inheritance
Legal definition of Devise by will – A gift of real property by will, by inheritance.
Legal definition of Suo vigore – Latin: energy, vigour
Legal definition of Instanter – presently to, upon
Definition of reservations, royalties, conditions, obligations, trusts, contracts, licences, charges, rates, title, claim, demand, lien or incumbrance at law or in equity’, to the intent that the legal estate therein, together with all rights and powers, every interest therein, and any easement, power or privilege over, in or in connection with that land – all the words used to convey those elements that the Grant in Fee Simple title is free from on alienation.

This is how we purchase our land from the King/Queen, this is how the Commonwealth resume land from private ownership and the States’ control.

1 comment:


    all monopoly grants were made null by this act, it is relevant to all of the above. government monopoly on anything is unlawful. period.