Plenty v Dillon [1991] HCA 5 (7 March 1991)
(1991) 171 CLR 635
HIGH COURT OF AUSTRALIA.
Mason C.J. Brennan, Toohey, Gaudron and McHugh JJ.
JUSTICES MASON, BRENNAN AND TOOHEY at [4] and [5] said:-
“4. The starting point is the judgment of Lord Camden L.C.J.
in Entick v. Carrington [1765] EWHC J98; (1765) 19 St Tr 1029, at p 1066:
"By the laws of England, every invasion of private property,
be it ever so minute, is a trespass.
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 shew by way of justification,
that some positive law has empowered or excused him."
And see Great Central Railway Co. v. Bates (1921) 3 KB 578, at p 582;
Morris v. Beardmore (1981) AC 446, at p 464.
The principle applies to entry by persons purporting to act with the authority of the Crown as well as to entry by other persons.
As Lord Denning M.R. said in Southam v. Smout (1964) 1 QB 308, at p 320,
adopting a quotation from the Earl of Chatham:
"'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 - the 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.'
So be it - unless he has justification by law."
And in Halliday v. Nevill [1984] HCA 80; (1984) 155 CLR 1, Brennan J. said (at p 10):
"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." ”
“5. The proposition that any person who
"set(s) his foot upon my ground without my licence ... is liable to an action"
in trespass is qualified by exceptions both at common law and by statute. ”
Plenty v Dillon [1991] HCA 5.
JUSTICES GAUDRON AND McHUGH at [1] and [4] said:-
“1. The question in this appeal is whether a police officer
has the right under the law of South Australia
to enter private property for the purpose of serving a summons
after the occupier of the property has notified the officer
that he or she has no permission to enter the land.”
“4. The common law right of entry.
The policy of the law is to protect the possession of property
and the privacy and security of its occupier:
Semayne's Case [1572] EngR 333;
(1604) 5 Co Rep 91a, at p 91b [1572] EngR 333; (77 ER 194, at p 195);
Entick v. Carrington (1765) 2 Wils KB 275, at p 291
[1765] EWHC J98; (95 ER 807, at p 817);
Southam v. Smout (1964) 1 QB 308, at p 320;
Eccles v. Bourque (1975) 2 SCR. 739, at pp 742-743;
(1974) 50 DLR (3d) 753, at p 755;
Morris v. Beardmore (1981) AC 446, at p 464.
A person who enters the property of another must justify that entry
by showing that he or she either entered with the consent of the occupier
or otherwise had lawful authority to enter the premises:
Entick, at p 291 (p 817 of ER);
Morris v. Beardmore, at p 464;
Southam v. Smout, at p 320;
Halliday v. Nevill [1984] HCA 80; (1984) 155 CLR 1, at p 10.
Except in the cases provided for by the common law and by statute,
constables of police and those acting under the Crown
have no special rights to enter land: Halliday, at p 10.
Consent to an entry is implied if the person enters for a lawful purpose.
In Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J. said (at p 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: Halliday.
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.
In Davis v. Lisle (1936) 2 KB 434, police officers who had lawfully entered a garage for the purpose of making enquiries were held to have become trespassers by remaining in the garage after they were told by the proprietor to "get outside". ”
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