Gardiner v Marinov & Anor [1998] NTSC 68; 7 NTLR 181; 143 FLR 352

Halsburys Laws of England, 4th Ed, Vol13, par398.

Warrant of distress - Part payment of a sum in respect of which warrant of distress issued does not invalidate warrant -

Warrant of distress - Substantial compliance with prescribed form - Valid notwithstanding arguable defects as to form -

Torts - Trespass - Trespass to land and rights of real property - Attempt to execute warrant of distress - Whether entry by police constable into appellant's premises constituted trespass - Withdrawal of implied licence for lawful entry by appellant - No authority for bailiff to enter premises - Warrant did not provide authority to enter in face of appellant's denial of entry - Warrant could not authorise constable to enter room in circumstances - Powers and duties of a constable

Semayne's Case [1572] EngR 333; (1604) 5 Co Rep 91a; 77 ER 194, referred to.

Enever v The King [1906] HCA 3; (1906) 3 CLR 969 at 975 per Griffiths CJ., referred to.

Southam v Smout [1964] 1 QB 308 at 321 per Lord Denning MR, referred to.

Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1 at 9-10 per Brennan J., referred to.

Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, applied.

Nicholson v Avon [1991] VicRp 15; [1991] 1 VR 212 at 221-2 per Marks, referred to.

1st & 2nd Respondents: Solicitor for the Northern Territory

This appeal arises from the decision of the Local Court, sitting at Darwin on 6 August 1997, dismissing the appellant's claim against the first respondent, a Constable of Police, for trespass upon premises occupied by the appellant at room 161, Ross Smith Guest House, 49 Parap Road, Parap. The second respondent was sought to be held vicariously liable for the trespass of the first respondent. The defence admitted that Constable Marinov attended at the room in question, but denied that he wrongfully entered it, and asserted that the entry was in the performance of his duties as a member of the Northern Territory Police Service and pursuant to the Police Administration Act 1979 (NT).

The appellant was legally represented in the proceedings before the Local Court, but unrepresented on the appeal. It is provided by s19(4) of the Local Court Act 1989 (NT) that an appeal from a final order of that court may be instituted on the grounds that the decision was wrong in law or that the conduct of the proceedings was unfair. The grounds of appeal set out in the Notice of Appeal are not easy to follow, but they became clearer in the course of submissions. Some go to questions of law and some remotely suggest unfairness in the proceedings. Others go to findings of fact, which are not reviewable.

The relevant background to the Local Court action arises from proceedings initiated by the appellant as complainant under s99 of the Justices Act 1928 (NT) in which she sought an order that a Mrs Ting, who it appears held a managerial position at the Ross Smith Guest House, keep the peace towards her. That matter was set down for hearing on 9 May 1996; the appellant was not present when the matter was called on, the complaint was dismissed and she was ordered to pay the defendant $250 costs. The Court there appears to have been acting pursuant to ss63 and 77 of the Justices Act. The appellant applied the following day pursuant to s63A to set aside the dismissal and the order as to costs. Her application came before the Court on 15 May, and the endorsement on the file indicates that the order dismissing the complaint and for costs was set aside, but upon condition that the appellant pay Mrs Ting's costs of $250 (ss63A(7) & (8)), such cost to be paid within two months from that date. It also appears from the endorsements on the file that a hearing was conducted on the complaint, that it was dismissed, and a further order was made against the appellant that she pay the costs of those proceedings, this time in the sum of $710 and in respect of that she was allowed six months to pay. None of the procedures or orders made in respect of those matters is called in question.

The costs of $250 were due to be paid by 15 July 1996. They were not. It will be noted that there was no order as to what was to occur in default of payment, but s80 of the Justices Act provides that it shall not be necessary for an order to direct or provide for any levy of distress. The costs orders appear to have been made pursuant to s77 of the Justices Act, and it is provided in s78(b) that in a case such as this payment shall be enforced by distress or imprisonment, and see also s79. On 13 August, application was made to a Justice by the solicitor acting for Mrs Ting to issue a warrant of distress supported by a Statutory Declaration that the costs of $250 ordered to be paid had not been paid. It is not disputed that at the time the application was made for the warrant the whole of the $250 was outstanding, and the time allowed for payment had expired. The Justice must have been satisfied that default had been made in payment of the costs and a warrant of distress in the prescribed form (Form 29 Justices Regulations 1929 (NT)) was signed by the Justice as required. It does not bear any Court stamp, but none is required by law. (A copy of the warrant amongst the papers on the Court file bears what appears to be the seal of the Local Court, but it is not clear how that stamp came to be on the copy, and, in any event, it is irrelevant). As prescribed, the warrant is addressed: "To all Members of the Northern Territory Police Force and all Bailiffs of the Local Court". It recites that the appellant "was on 15 May 1996 dealt with by the Court of Summary Jurisdiction at Darwin in the Northern Territory for the offence of: apprehend violence complaint and other offences. AND IT WAS adjudged that [she] for the said offence(s) should pay the sum of $250.00" It goes on to correctly recite that default had been made in payment and commanded those to whom the warrant was addressed to make distress. The appellant argued before the Local Court that the warrant was invalid in that: (a) it did not bear the seal of any Court; (b) it did not correctly recite the circumstances giving rise to the order for payment of the sum of $250, and (c) she was not informed of the application for the warrant or given the opportunity to appear before the Justice to be heard on that question. I will deal with those matters later.

The warrant was issued on 13 August 1996. On 19 August, and without knowing that the warrant had been issued, the appellant went to the office of the Court of Summary Jurisdiction in Darwin and paid $50. In her evidence she said that she was then intending to pay that amount in respect of the order for payment of costs of $250. All the proceedings on the complaint under s99 of the Justices Act were dealt with on the one file, numbered 9606434 and the receipt for the $50 simply bore that reference. The records of that Court show that the $50 was first credited to the instalment card having to do with the order for $250, upon which there had been a notation to the effect that the warrant of distress had issued. The record noting the payment was crossed out, and the payment then credited to another instalment card having to do with the order for the payment of $710 costs. The appellant denied any knowledge of that, and she said it was her belief, during the subsequent events, that she owed but $200 in respect of the order for $250. Her evidence was that when she attended at the Court office she told the person at the counter that she wanted to pay some of the money off the $250, and denied that she was then told that a warrant of distress had been issued and denied that there was any conversation with the clerk informing her that the $50 was to be credited to the $710 costs order. No evidence was called to contradict what the appellant had to say in that regard. It is put that the $50 was tendered as an instalment in respect of the costs order for $250, and that that payment having been accepted, the warrant of distress was thereby invalidated. The fact is, however, that the time allowed by the Court for payment of the $250 had expired and there had been no application to extend that time.

On 2 September 1996 Mr Torr, a bailiff, went to the appellant's room armed with the warrant with a view to executing it, she refused him entry, there was an altercation between them, he enlisted the aid of the police by a telephone call, and Constable Marinov, together with Constable MacCarthy arrived a little later. Constable Marinov shortly thereafter entered the room which entry is said to constitute the trespass. Mr Torr again entered the room at that stage. No goods were seized, and he made a return to the warrant certifying that he had made diligent search for goods and chattels of the appellant, and that he could find no sufficient goods or chattels thereon to make a levy of the sum mentioned in the warrant, $250 plus the warrant fees of $25, a total of $275. There is no evidence that the appellant told either the bailiff or the police that she had paid $50 on account of the $250 fine. Mr Torr did not give any evidence.

Given the limited right of appeal to this Court, it is necessary that regard now be had to what his Worship had to say in the course of his reasons leading to the dismissal of the appellant's action in the Local Court. He found that Constable Marinov entered the room against the appellant's will. His Worship held that the warrant "appears regular on its face in the ordinary form", although noting that the prescribed form was not well adapted to the circumstances of this case. He noted s68 of the Interpretation Act 1978 (NT) and reg3 Justices Regulations, which provide that strict compliance with forms is not required and substantial compliance is sufficient. He found that when the bailiff first arrived, the appellant had opened the door, gone into the corridor and attempted to lock the door from the outside, whereupon the bailiff put his hand on the door to push it open whilst the appellant continued to try and pull it shut. He prevailed; she let go, fell away from the door into the corridor and suffered injury. The bailiff then entered the room, but immediately left to make the telephone call to the police. The appellant did not give the bailiff any authority to enter her room. When the evidence between the appellant and Constable Marinov was in conflict, his Worship accepted without reservation what the constable said. The following are extracts from his evidence:

"Why did you attend?---We were tasked to attend which basically means that our police communications section despatched us to a standby at premises there, complainant was a bailiff in relation to the execution of a warrant of distress. We were tasked to standby because there had been a concern that a fracas of some description had occurred between two parties at that premises and the bailiff wanted us present as a standby to ensure that the peace and order was maintained while the warrant was executed.

What do you see your primary role in attending standbys to be?---My primary (sic role) at attendance at standbys is to maintain law and order and to stop any violence or any situation from arising.

Did you see anyone at Room 161?---I turned up with Constable MacCarthy. We pulled up the first building, I think it is, as you come into the driveway, walked in the entrance way I then saw a gentleman who I now know to be Mr Torr the bailiff and I - because I was counting down the rooms and I found him outside, I think it was Room 161. As soon as I pulled up I saw the lady seated over there and the man I'm referring to, the bailiff, standing outside Room 161.

HIS WORSHIP: The witness indicates and identifies Ms Gardiner?---Yes, Ms Gardiner. I saw the two of them there. I approached. At that point in time I stated who I was, who my partner was, that we were there in relation to a complaint. I asked if the gentleman was Mr Torr and he explained he was because he was the complainant. At that point in time I recall being shown a document, a warrant of distress. Now I can't tell you exactly how much the amount was for. A subsequent complaint against police was made and at that time I think I said about $250 was the sum off the top of my head. I'm not certain whether it was 250 or 275. It was a warrant of distress and it was addressed to constables of the Northern Territory Police and Bailiff.

Right. Would you be able to tell His Worship to the best of your recollection what it was that you said to Ms Gardiner?---It was words to the effect that this warrant authorised the gentleman to go in and take property to the value - I think I said $250, I think. I'm not certain. That's 250 or 275 dollars that was stated in the warrant. Which ever was stated in the warrant. It authorised him to take property to that value. Ms Gardiner was pretty distressed and she was a bit vocal and she was extremely aggressive to the gentleman I was speaking to. He stated he wanted to go into the premises. He wanted me to be present inside while the warrant was executed. In my mind I was assisting him (sic with) the execution of a warrant. We were executing the warrant together.

All right, Constable. Other than you - was there any other conversation with Ms Gardiner?---I could see that Ms Gardiner was pretty distressed and I didn't want her to jump in front of me and try and stop us because there's no way I was going to use force to enter the room even with the warrant. So I said words to the effect of "I'm here to protect you, I'm here to protect your property right and I'm accompanying this man inside while he executes this warrant or he gets property to the value. I'm going to record whatever's taken in my note book' and I actually went and got my notebook open saying 'I'm here to look after your interests as well' and I can (sic) remember exactly when I said, but I said at one point 'I'm here to make certain this is done lawfully and that this warrant is executed lawfully. I'm an impartial observer, I don't take any stance one way or the other in this matter'. And I can't recall exactly whether I said that straight away or immediate (sic) prior to the thing. But immediately prior to going into the room I did say to her words to the effect, I'm here to protect you, your property and rights and I'm going inside and accompany this man and I'm going to note what property's taken in my notebook to protect your property rights, or words to that effect. And I said that because I thought straight away I said that would calm her down a bit.

HIS WORSHIP: You were trying to placate her, were you, with those words?---Exactly sir, 100%.

MR MACDONALD: What did you consider your role to be in the whole of this incident?---Well, I've been present during the execution of these warrants before. Generally we stand by and watch while the bailiffs actually execute. I have on numerous occasions assisted bailiffs to actually get the property off the premises.

MR MACDONALD: In any event constable, why did you go into room 161?---Basically because the bailiff wanted to go in and he asked me to accompany him in and he said something along the lines - I can't recall exact words but something along the lines just to make certain that I'm not accused of stealing anything or anything I shouldn't be taking, which I thought was a valid reason. He walked around her. She said, no you can't go in my room or words to that effect, 'you can't go in my room'. I don't know who she was directing it to, but it didn't really matter, in my mind she was saying no to both of us as far as I was concerned. And he walked around her and I walked around her and I have to admit that I thought part of (sic my) duty was to make certain there was no continuation of the fracas that had occurred earlier. So I did have in the back of my mind a secondary objective which was to minimise any injury or discomfort between the two parties to cause no breach of the peace to occur.

When you attended did Mr Torr ask you to execute the warrant for him?---He wanted me to go with him. He wanted me to be part of the actually (sic) execution.

What did he say?---He said he wanted me to come in and watch him doing it, be present at the actual execution. He didn't want any trouble occurring.

So come and watch him do it, be present for the actual execution?---Words along those lines.

Further cross-examination was directed to what the witness told Sgt Hofer, who had been investigating a complaint against him made by the appellant.

MR RENOUF: I guess I need to put to you this, that you said words to the effect of you're attending as a witness to the bailiff's action and you said words to the effect that you said before in order to protect you and your property I'll go into your room and record the seizure and removal of any property. But I want to put to you that in fact you didn't ever say I'm going to assist Mr Torr to execute the warrant in any other sense than as a standby?---I stated that we were authorised to go in. I explained the warrant. I then - I said he was going in to actually remove property and I stated I was going to go in with him. I was assisting him to execute the warrant. I had no doubt about that matter. And the way I said it I thought it was pretty blatant.

I guess I put it to you that you didn't say it quite like that when you reported on the incident to Mr Hofer, you emphasised the witness being there, the being there to prevent a breach of the peace, to record any items that were taken, those were the kinds of things that you told Mr Hofer in your assessment of your role. At that time you were not emphasising the fact that you were in any way assisting Mr Torr execute the warrant other than by standing by to keep the peace?---I think that the questions that were being asked in the complaint against police were in relation to my failing to provide my name when she asked me on the second occasion and she was distressed at that time and she was pretty upset and she was getting upset with me. I thought that was the nature of the complaint and that's what I was dealing with.

MR RENOUF: In your discussions with Mr Torr, prior to your entry to the room did anything he said cause you to believe that he had attempted to enter the room before you got there?---I don't know if he'd gone in or tried to go in. All I know is there's been some sort of fracas involving the doorway there and two parties had been involved in some sort of push and shove match in the doorway. I don't know what it was, I wasn't there. I can't comment on that, sir.

Just to clarify something I have asked before but just formally you - I put it to you that at no time did Torr ask you to execute the warrant with him?---He did, he asked me to go in with him to be present during the thing. He wanted that person to be present.

To go in and be present but not to do the job that he was supposed to be doing, that he had a job to do?---I was supposed to be there to help him.

HIS WORSHIP To help him, that's your evidence?---And I was doing that by keeping my notebook open recording what was going on and by allaying any type of aggression that would occur between the two parties which as far as I (sic am) concerned I achieved. There are two aspects, there's the standby - - -

Don't go on just answer the questions and that'll be enough."

His Worship held that the entry by Constable Marinov and the bailiff together was separate to that made earlier by the bailiff alone. He inferred from all of the evidence that the door to the room "was never successfully locked or indeed closed" after the appellant came out of it in response to the initial call by the bailiff. The appellant's evidence was that the door was open when Constable Marinov and the bailiff went into the room. His Worship came to his views about his acceptance of the evidence of Constable Marinov and his rejection of that of the appellant "having studied them in the witness box today". His Worship's finding include the following:

"If the only reason for the entry of Marinov was to protect this lady, in my opinion there's no doubt that trespass is made out. But his whole object and what he was doing in there was to do what was authorised by right to be done by all members of the Northern Territory Police Force of which he is a member and that is to see to the execution of the warrant of distress. That's the essence of his evidence. I accept him on that. I don't see anything necessarily inconsistent between that what he said of Hofer. You can have more than one purpose. But in any event a secondary purpose of placating or keeping the peace really went to assisting the first purpose which was to assist and help in the execution of the warrant."

It is not open to the appellant to appeal against his Worship's findings of fact, none of those findings being tainted by error of law. There was evidence to support each such finding. In so far as there was a conflict of evidence between the appellant and Constable Marinov, his Worship made findings based upon his view of the credibility of the witnesses and those findings must stand. The appellant suggests in grounds of appeal numbered 4, 12 and 13, for example, that his Worship erred in his assessment by taking into account matters personal to her and in his findings about her conduct in the course of the events in question. In so far as it was thereby suggested that the proceedings were unfair, I reject it. His Worship was doing no more than to record his observations and the facts as he found them to be on the evidence. Some of those findings went to the basis for his preferring the evidence of Constable Marinov to that of the appellant. That was a function particularly within the province of the Magistrate, and it can not be unfair for him to have carried out his responsibilities in that regard as much as the appellant might disagree with him.

One of the grounds of appeal states that the Magistrate "did not apply due process of law". If it was intended to raise a ground of appeal separate from any of the other twenty grounds of appeal, then it is not particularised and must be dismissed. Similarly, in relation to the ground that asserts that the Magistrate "did not apply the law in the matter of misapplication of law" and "did not apply the law in the matter of disrepair of documents". A further ground of appeal complains that his Worship failed to call Mr Torr as a witness. He had no power to do so (In re Enoch & Zaretzky, Bock & Co's Arbitration [1910] 1 KB 327).

The substance of the appellant's complaints as conveyed in numerous grounds of appeal may be summarised as follows:

• the warrant was invalid, and accordingly did not authorise the first respondent to do anything;

• if the warrant was valid, it did not authorise him to enter her room. The resolution to that question depends partly upon the findings of fact made by his Worship.

In my opinion, the warrant was properly obtained by application supported by the Statutory Declaration. The time for payment of the $250 had expired, and it had not been paid. The appellant must be taken to have known that. There was another order for payment of costs of $710, in respect of which the time for payment had not expired. No authority was put forward upon which to found the proposition that part payment of a sum in respect of which a warrant of distress has issued invalidates the warrant, and my researches have not disclosed any. The subject is not mentioned in Mather on Sheriff and Execution Law, 3rd Ed, (Wigan and Meston (eds), Stevens & Sons, London, 1935), but I note that at p55 it is said that so long as a judgment exists it protects those who seize property under an execution founded on it, and further, that a Sheriff is fully protected if he executes a writ according to its tenor. It may be that a judgment debtor has a remedy if goods are seized and sold by way of execution of a warrant issued in respect of a sum greater than that properly due to the creditor, but that is not the case here.

Contrary to her submission, the appellant had no right to be notified of the application made by Ms Ting for the issue of the warrant and to heard. Nothing in the statute requires that; it simply requires that an application be made for the warrant. It would be odd if a Justice had authority to issue a warrant without application supported by evidence of default in payment. A warrant of execution against goods binds the property in the goods of the execution debtor as from the time the warrant is delivered to the Sheriff (which expression includes any officer charged with the enforcement of the warrant): Sale of Goods Act 1972 (NT) ss5 & 29. Notice of application for a warrant would surely lead to the possibility of a debtor so acting as to avoid the consequences of its being issued. The appellant relied upon ancient authorities to support her argument that she was entitled to notice for the application. Referring to the power of a churchwarden to take distress for a poor rate, she relied upon the authority that the granting of such a warrant by a Magistrate first required that the party be summoned in order to hear what the defendant had to say in his defence (Harper v Carr (1797) 7 Term Rep 270, referred to in The English and Empire Digest, vol 18, p390, par1403.

"The churchwardens and four overseers of each parish were to maintain and set to work children whose parents were unable to maintain them, to purchase stocks of material on which they were to set the poor to work; and to relieve the impotent. For these purposes they were to raise money by a rate; and power was given to the justices to rate a richer parish in aid of a poorer parish. Provision was made for the erection of cottages for the maintenance of the impotent poor. Parents were made liable to maintain their impotent children, and children their impotent parents - a liability extended in 1601 to grandparents and grandchildren. ... Begging was prohibited and all beggars were made punishable as rogues. The justices were empowered to levy a further rate for the maintenance of hospitals, almshouses, the relief of poor prisoners in the King's Bench and Marshalsea, and other charitable purposes." (William Holdsworth, A History of English Law, Vol IV, p.397, Sweet and Maxwell 1966).

The distinction between cases to do with enforcement of payment of rates by distress and this matter lies in the fact that generally, in England, the payment of rates is enforceable by distress and not by action. No distress proceedings may be taken unless there has been a demand and neglect or refusal to pay, followed by a complaint before a Justice and an application for a summons requiring the person named to appear and show why the rate has not been paid. If no valid objection is raised, the Court issues a distress warrant (see generally Halsburys Laws of England 4th Ed, Vol 13, par398). Here the question of the liability of the appellant was settled by the order as to costs.

His Worship did not err in holding that the warrant was valid notwithstanding the arguable defects as to form. It substantially complied with the prescribed form. It sufficiently identified the proceedings, and was accurate as to the amount which the appellant had been ordered to pay. In all other respects it complied.

The nub of the appellant's complaint is and always has been that the first respondent had no authority to enter her room. As Brennan J. put it in Halliday v Neville [1984] HCA 80; (1984) 155 CLR 1 at p9:

"This case is about privacy in the home, .... . It is about lawfulness of police entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings."

His Honour commented at p10 that it was still as true as it was in 1765 that by the laws of England every invasion of private property, be it ever so minute, is a trespass and if any man set his foot upon property without licence of the occupier, then he is liable to an action even though the damage be nothing. His Honour referred to the words of Lord Camden LCJ in Entick v Carrington (1765) 19 St Tr 1029 at 1066: "...If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him."

The appellant's submissions were primarily directed to whether the entry into her room by the constable was authorised by the warrant. It will be recalled that the warrant was addressed to all members of the Northern Territory Police Force as well as the bailiffs. Examination of the powers of a Sheriff or bailiff as to entry to enforce civil process usually begins with the resolutions in Semayne's Case [1572] EngR 333; (1604) 5 Co Rep 91a; 77 ER 194. This is not a case involving entry at the suit of the Sovereign to which particular rules apply. This is a case at the "suit of a subject" - the execution of a warrant of distress issued on application of a person to whom the appellant had been ordered to pay costs. In such a case, according to the fourth resolution in Semayne's Case at p92b (ER p197-198), where the door is open a person authorised to execute the warrant may enter and do execution (per Lord Denning MR in Southam v Smout [1964] 1 QB 308 at 321). For a case in which a bailiff was held to have acted outside his authority by forcing his way into the house to levy on a judgment debt see Broughton v Wilkerson (1880) 44 JP 781, D.C. The same issues arose in Vaughan v McKenzie [1969] 1 QB 557 where, after reviewing a number of the cases, it was held that an officer executing civil process might not lawfully enter a dwelling house of an execution debtor if the debtor physically resisted his entry, even if the door was unfastened. All of those cases have to do with circumstances where some degree of force was used by the person attempting the execution. They turned on the point that the distress sought to be executed did not authorise entry into the premises because the implied license of the occupier for lawful entry had been withdrawn either by the locking of the outer doors or windows or by physical resistance. Those are but examples of notice of withdrawal of the implied license and what the appellant said to the bailiff and the constable on this occasion is another. She made it plain to them they were not to go into her room, and that was sufficient (Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635). It was not suggested that the bailiff had any authority to enter the room, and the warrant did not achieve that end in the face of the appellant's denial of entry. The open door does not prevail over the express words of dissent.

Accepting the evidence of the constable, his Worship found that:

"... his whole object and what he was doing in there was to do what he was authorised by right to be done by all members of the Northern Territory Police Force ... that is to see to the execution of the warrant of distress. ... in any event a secondary purpose of placating or keeping the peace really went to assisting the first purpose which was to assist to help in the execution of the warrant."

The warrant could not, as a matter of law, authorise the constable to enter the room in the circumstances. His Worship erred.

It is necessary to go into a little detail in relation to the powers and duties of a constable. A constable has all the powers and privileges as are by any law in force in the Territory, conferred or imposed upon him. (Police Administration Act 1979 (NT), s25). The powers at common law include those necessarily incident to the discharge of a constable's functions as a peace officer or conservator of the peace, per Griffiths CJ. in Enever v The King [1906] HCA 3; (1906) 3 CLR 969 at p975. See also Halsburys Laws of England, Vol 36, 4th Ed, p320. The oath taken, or affirmation made by members of the Territory Police Force include an undertaking "to see and cause Her Majesty's peace to be kept and preserved" as required by the schedule to the Police Administration Act.

In the performance of the duties to prevent a breach of the peace, police officers may enter upon private premises. See the authorities cited by Marks J. in Nicholson v Avon [1991] VicRp 15; [1991] 1 VR 212 (special leave to appeal to the High Court refused). His Honour's review of the law commences at p221. Included therein at p222, is what fell from Lord Hewart CJ. in Thomas v Sawkis [1935] 2 KB 249 at p255:

"It is elementary that a good defence to an action for trespass is to show that the act complained of was done by authority of law, or by leave and licence."

See also Justice Avery at p256 and Justice Lawrence at p257. Reference might also be made to Panos v Hayes (1987) 44 SASR 148 where like issues are considered by Legoe J. There is no reason to think that those duties and powers do not operate in the Territory. The evidence of Constable Marinov was that he was aware that:

"... a fracas of some description had occurred between two parties at that premises and the bailiff was thus present as a standby to ensure that the peace and order was maintained while the warrant was executed".

I have no doubt, upon consideration of the evidence, that the constable acted in the way he thought best in the circumstances. It is certainly not shown that he knew that entry into the room would be unlawful. His Worship's findings, not challenged upon appeal by the first respondent, are that the entry into the room was based upon the belief that it was authorised by the warrant. However, it was not. Once in the room, the constable's intention was to assist in the execution by taking notes about any property seized. Nowhere does he say that he apprehended that the appellant would try and physically interfere with the bailiff or otherwise commit a breach of the peace in the room. Any breach or threatened breach of the peace outside the room could have been dealt with there. Entry into the room was not required in the discharge of the constable's duty to keep the peace.

The appeal must be allowed. The order dismissing the plaintiff's claim is set aside and in lieu thereof order that judgment be entered in favour of the appellant for trespass against the first respondent. The question of the vicarious responsibility of the second respondent and the assessment of damages must be dealt with. I will hear the parties as to the further orders which ought to be made, but I am presently minded to remit the proceedings to the Local Court to determine those other issues.