Maynes v Casey

Court of Appeal (NSW)|2011-06-14|Before: Allsop P, Basten JA

272 State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; 58 CLR 479 Wilson v State of New South Wales [2010] NSWCA 333 Category: Principal judgment Parties: Lindsay Arthur MAYNES (First Applicant) Susan Linda MAYNES (Second Applicant) Samuel Ian CASEY (First Respondent) Geoffrey John CASEY (Second Respondent) Representation: Counsel:

P E King (Applicants) J A Trebeck (Respondents) Solicitors:

Judgment 1ALLSOP P : I agree with Basten JA. 2BASTEN JA : The applicants, Mr Lindsay Maynes and Mrs Susan Maynes, own a property known as "Berkeley" near Woodstock in the Shire of Cowra in western New South Wales. In 2008, the Shire Council alleged that they were in arrears in payment of rates. On 12 October 2008 the Council sought to serve the applicants with process to commence proceedings in the Local Court for the recovery of unpaid rates. Service was organised by the Council's solicitors, of which the second respondent, Mr Geoffrey Casey, was a partner. The process server was his son, Mr Samuel Casey. 3On 22 May 2009, the applicants commenced proceedings in the District Court claiming damages against the respondents. Mr Samuel Casey was sued in trespass to land, assault and for breach of privacy. Mr Geoffrey Casey was said to be vicariously liable for the trespass to land committed by Sam Casey and to have been a party to certain breaches of privacy. By judgment delivered on 23 December 2010, the proceedings in the District Court were dismissed: Maynes v Casey [2010] NSWDC 285 (Sidis DCJ). 4Having served a notice of intention to appeal, the applicants sought, by a notice of appeal filed within time on 16 March 2011, to appeal to this Court. On 1 April 2011, the respondents applied to have the appeal dismissed as incompetent, on the ground that, absent an appropriate affidavit demonstrating that the amount in issue was in excess of $100,000, it required leave. In support of their assertion that the damages claim fell well short of that figure, the respondents filed an affidavit annexing a document described as an "invoice" sent to the first respondent on 14 October 2008 claiming an amount of $19,500. The affidavit also attached a copy of the judgment, in which Sidis DCJ, against the contingency that she might be found to have erred in respect of liability, had assessed the damages payable at a maximum of $28,000. The respondents also complained that the affidavit of the applicants' solicitors, filed on 24 March 2011, merely asserted that he was "informed by the appellants and believed" that the claims had a value in excess of $100,000 and that the property on which the trespass occurred had a value in excess of that figure. 5Whilst maintaining that the appeal lay as of right, on 21 April 2011 the applicants filed a motion seeking an extension of time within which to seek leave to appeal (and leave to appeal). Further, on 3 June 2011 an affidavit of Mrs Susan Maynes was filed, asserting that she and her husband had been "humiliated and very upset" at the trespass upon their land and at the "distressing and confronting" behaviour of the respondents, after the service of the District Court process, in driving "up and down upon our land" in a manner "designed to intimidate us from proceeding with our action". Mrs Maynes annexed a "psycho-legal assessment report", dated 12 March 2010, which had apparently been prepared for the District Court proceedings. Based on the applicants' account of the events involving the respondents, the psychologist, Ms Margaret Johnson, expressed the opinion that there was "sufficient evidence to suggest that Mr and Mrs Maynes experienced shock, mental distress, fear and anguish as a result of the intrusion into their home". She stated that the "negative consequences of the incident have endured since the incident and resulted in them becoming socially isolated and fearful of further intrusions". She concluded that "although the situation did cause a degree of psychological impact, this was not sufficient to warrant a diagnosis of any psychopathology".

Legal principles 6The first issue is to whether the applicants require leave to appeal. This depends upon the operation of s 127(2) of the District Court Act 1973 (NSW), which provides: " 127 Right of appeal to Supreme Court ... (2) The following appeals lie only by leave of the Supreme Court: ... (c) an appeal from a final judgment or order, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 7This provision constitutes a statutory restriction on the right of appeal, imposed by reference to a specified amount or value: Uniform Civil Procedure Rules 2005 (NSW), r 51.22(1). Accordingly, it was necessary for the appellant, on filing the notice of appeal, to file and serve an affidavit that identified the nature of the restriction and set out "the material facts on which the appellant ... relies to show that the restriction does not apply": r 51.22(2)(b). 8The requirements of the rule will operate differentially, depending on the cause of action and the circumstances of the particular case. The present case involved three causes of action in tort, one involving a trespass to land, the second an assault caused by threatening behaviour and the third an invasion of privacy of the landowners. In each case the damages (if any) will be assessed according to the circumstances of the tortious conduct. That assessment will involve an evaluative judgment on the part of the court hearing the appeal or hearing a retrial, if the appeal succeeds. An affidavit by a solicitor expressing an opinion as to the amount of damages likely to be awarded is neither necessary, nor sufficient. What is required, in order to comply with the rule, is an affidavit setting out "material facts" which may demonstrate the likely amount of the damages: Ozpinar v Assaily [2001] NSWCA 23 at [12]-[14] (Powell JA, Sheller JA and Rolfe AJA agreeing); Kassem v Colonial Mutual General Insurance Company Ltd [2001] NSWCA 38 at [47] (Rolfe AJA, Ipp AJA agreeing); Bracks v Smyth-Kirk [2009] NSWCA 401 at [40] (McColl JA, Allsop P and Young JA agreeing). 9The authorities do not identify in detail the nature of the material facts which should be set out in the affidavit. Where damages in tort are concerned, the relevant facts, to be proved at a trial, would no doubt include evidence from the plaintiff as to the nature of his or her injuries, together with medical evidence as to their extent and likely prognoses. Usually, the material evidence will have been presented at trial and will have been the subject of findings by the trial judge. Where the appellate challenge is to the assessment made by the primary judge on the basis of that material, it will be sufficient for a solicitor's affidavit to identify the relevant findings, together with material in the evidence which is said to support a higher (or lower) figure. It will be sufficient if such material allows the Court to be satisfied that the appellant has reasonable prospects of obtaining a variation in the judgment below in an amount equal to or exceeding the statutory figure: see Cole v The Commonwealth [1961] HCA 87; 106 CLR 653 at 656 (Dixon CJ, Windeyer and Owen JJ); Ebert v The Union Trustee Co of Australia Ltd [1957] HCA 88; 98 CLR 172 at 175; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [15]-[19] (Tobias JA) and authorities there cited; Ross v IceTV [2010] NSWCA 272 at [8] (Sackville AJA, McColl and Macfarlan JJA agreeing); Pawlowska v Zajglic [2011] NSWCA 118 at [15]-[16] (Campbell JA). 10In the present case, the solicitor's affidavit filed in support of the right to appeal failed to set out relevant material facts. While the rule in that regard was not complied with, it was nevertheless open to the appellant to demonstrate, by argument, based upon the findings of fact made by the trial judge, that the variation in amount sought was reasonably supportable, without reference to other factual material. 11There remained an argument that, at least in relation to the trespass to land and the invasion to privacy, the applicants were entitled to rely on the value of the land, rather than the amount of the damages recoverable, pursuant to the second limb of the statutory definition. It was contended that the appeal involved a claim involving a question as to, or "respecting", property of the value of $100,000 or more.

Competency of appeal 12Counsel for the applicants contended that the conduct of the respondents was such as to warrant not merely findings of liability in favour of the applicants, but a judgment including aggravated and exemplary damages, in a figure well in excess of $100,000. He referred to cases in which such sums had been recovered, including State of New South Wales v Ibbett [2005] NSWCA 445; 65 NSWLR 168. However, the facts in that case, which involved turning a handgun on the plaintiff and other threatening conduct, bore little resemblance to the facts of the present case, as found by the trial judge, or even those asserted by the applicants. 13Further, arguably the more serious conduct alleged against the respondents was the assault, in which the second respondent was not alleged to be involved, either personally or vicariously. Further, as appeared from the evidence, the allegedly threatening conduct was directed towards Mr Maynes, rather than his wife. No attempt was made in the course of argument to distinguish various aspects of the causes of action for the purposes of assessing damages. 14At the heart of the applicants' argument in respect of an appeal as of right, lay the need to challenge findings of fact made by the primary judge. These were findings which led her Honour to the view that there had been no tortious conduct in any event. In respect of the trespass to land, the hypothetical basis of her Honour's assessment of damages could be undertaken on the assumption that the first respondent was aware of the absence of any express or implied permission to enter the land. Similarly, her Honour was in a position to assess damages payable on the basis that an implied consent was withdrawn, but that the first respondent had not left the property within a reasonable period. What her Honour did not do, and could not reasonably have done without making alternative findings of fact, was to assess the damages resulting from the assault, which she had found did not take place. The evidence of "material facts" put forward in support of the appeal as of right did not attempt to present a different factual case in relation to the alleged assault. Without such evidence it was implausible to suggest that the damages claimed could reasonably have been expected to exceed $50,000. 15The alternative approach, based on the second limb of s 127(2)(c), was not available to the appellants. Their proposed appeal did not make a claim or demand, or raise a question, with respect to "any property or civil right", other than the causes of action identified. There was no dispute as to their entitlement to the land, either directly or indirectly. The cause of action based on trespass to land may involve an intrusion upon, or damage to, the land, but in an amount which is unrelated to the value of the freehold title. Accordingly, they must bring themselves within the first limb of s 127(2)(c) to establish their right to appeal: Oertel v Crocker [1947] HCA 40; 75 CLR 261 at 265 (Latham CJ); 271-272 (Dixon J), discussed in Nanschild v Pratt [2011] NSWCA 85 at [26]-[33] (McColl JA, Campbell JA agreeing). 16It follows that the respondents' motion must be allowed and the appeal dismissed as incompetent.

Application for leave to appeal 17There is no doubt that the respondents were informed in a timely manner of the intention of the applicants to challenge the decision of the trial judge. (It is not necessary to state and consider at what point they were given notice of specific challenges which were not included in the original incompetent notice of appeal.) The respondents did not object to the application for an extension of time within which to seek leave to appeal and time should accordingly be extended. 18In order to justify a grant of leave to appeal in relation to a small claim, the applicants needed to establish: (a) that the adverse judgment in the District Court was attended by sufficient doubt to warrant reconsideration by this Court, and (b) that the case raised a matter of principle, or (c) that it was otherwise desirable, in order to maintain the regularity of the administration of justice, to grant leave to appeal. 19In assessing relevant considerations, it is necessary to deal separately with the independent causes of action.

(a) trespass 20The applicants accepted that, absent evidence to the contrary, a person having legitimate business with the owner or occupier of premises will have an implied right to enter and remain on the premises until asked to leave. As expressed in Halliday v Nevill [1984] HCA 80; 155 CLR 1 at 7 (by Gibbs CJ, Mason, Wilson and Deane JJ): "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 occupier will not however be heard to say that while he or she had neither done nor said anything to negate or revoke any such licence, it should not be implied because subjectively he or she had not intended to give it ...." 21That principle was common ground: the question, one of fact, was whether the implication had been negated by one of three courses of conduct undertaken by the applicants. These were, chronologically: (a) the publication in 2006 in a local newspaper of a letter prepared by the applicants; (b) correspondence between the applicants and Cowra Shire Council, and (c) the positioning of a sign at a point where a public roadway commenced to cross their property. 22The principal letter, published in the Cowra Guardian on 28 June 2006, pre-dated the supposed trespass on the applicants' land by more than two years. The correspondence was set out by her Honour at [88]-[90]. Her Honour did not accept that the respondents had read the correspondence, nor did she accept that the letter indicated that the applicants were attempting to give notice that they were withdrawing an implied right of entry onto their property to any Council officer, or other person: [114]-[116]. On what basis those findings should be overturned was not explained. 23The second matter upon which reliance was placed was more closely contemporaneous with the events of October 2008. On 11 August 2008, the applicants wrote to the Council, setting out their views as to the legal entitlement of Council officers to enter property without permission. Her Honour set out the text of the letter at [95]. There does not appear to have been any suggestion that the first respondent was aware of the correspondence or that it alerted him to any requirement to obtain express permission before entering the property: at [106]. The second respondent, as a partner of the firm which had acted on occasion for the Council, was not shown to have any knowledge of the correspondence and denied the proposition that the correspondence itself effected a withdrawal of any implied consent to enter: at [104]-[105]. The trial judge accepted the evidence of the second respondent: at [117]-[118]. There is no reasonable prospect of challenging these factual findings. 24The third and primary basis relied on by the applicants, as conduct withdrawing any implied consent, was the erection of a sign near a cattle grid where the road crossed the southern boundary of the applicants' property. (The wording of the sign identified legal authority, including the decision of the High Court in New South Wales v Ibbett [2006] HCA 57; 229 CLR 638, referring to a report which appeared in mid-2007, the sign presumably being erected at some point thereafter.) The trial judge found that the sign was positioned too far from the cattle grid to be visible at a time when the first respondent was negotiating the grid in the dark, the sign not being illuminated and, even if visible, its contents other than the word "STOP" not being legible. Her Honour therefore concluded that the sign was "ineffective to communicate to the first defendant that implied consent to enter the property was withdrawn": at [113]. 25The objective circumstances supported the first respondent's denial of seeing the sign, despite the fact that he was looking for signs in order to locate the applicants' property: at [13]. There was no plausible basis upon which that finding of fact could be challenged. Nor did the applicants contend that any finding of liability in their favour depended on a conclusion that the first respondent should, exercising reasonable care and attention, have seen the sign. 26In the result, the findings of fact were inconsistent with any awareness on the part of the respondents that the authority or licence implied by law, permitting the first respondent to drive up to the applicants' home in order to communicate with them, had been withdrawn. 27The primary basis upon which the applicants sought to challenge the conclusion in respect of liability for trespass to land was a legal argument to the effect that if owners of property take reasonable steps to notify potential visitors that they have no implied permission to come onto the property, then lack of subjective awareness on the part of the visitor is irrelevant. 28This legal proposition was said to derive from a number of cases, including Halliday , cited above and Plenty v Dillon [1991] HCA 5; 171 CLR 635. However, while the passages relied upon all support the principle that an implied permission can be withdrawn by notice, none stated that the mere publication of a notice, unbeknownst to the visitor, was sufficient to render that person a trespasser. For example, Plenty had been argued both in the Full Court of the Supreme Court of South Australia and in the High Court on the footing that there had been an express revocation of any implied consent: at p 638. There was no occasion to discuss how revocation might occur. The only authority referred to by the applicants which was squarely in point was against them. In Wilson v State of New South Wales [2010] NSWCA 333, Hodgson JA, McColl and Young JJA agreeing, set out the principle in respect of a withdrawal of an implied licence to enter premises in the following terms at [51]: "Thus, in my opinion, the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence." 29On the facts found by the trial judge, there was a clear revocation of the implied licence only at about the time the applicants came to understand that the purpose that brought Mr Casey onto their land was to serve them with court process. A question then arose as to whether Mr Casey left within a reasonable time of the revocation being communicated: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; 56 CLR 605 at 631 (Dixon J). Whether or not that occurred depended upon a combination of factual findings as to the precise events which occurred on the land on 12 October and an evaluative judgment as to what constituted a reasonable time in all the circumstances. The evidence of the applicants (and in particular of Mr Maynes) as to what occurred when Mr Casey arrived differed in a number of significant respects from Mr Casey's evidence. Her Honour noted the disparity in the accounts and preferred the evidence of Mr Casey: at [179]-[180]. She concluded at [181]: "I was not therefore satisfied that, although he did not leave the property immediately his authority to be there was withdrawn, he remained on the property for longer than was reasonably practicable." 30The assessment of the timing was critically dependent upon the findings of fact. Even if another view could have been formed as to the immediacy of Mr Casey's withdrawal from the land, unless her Honour's findings with respect to the assault allegation were to be overturned, the quantum of damages would be small and no wider purpose would be served by granting leave to appeal in that respect. Indeed, to do so would be entirely contrary to the purpose underlying the requirement of leave, namely to limit the delay, expense and inconvenience caused by litigation in this Court in cases having limited financial consequences.

(b) assault 31Mr Maynes gave evidence that he retreated backwards when he felt that Mr Casey was about to make contact with him. Mr Casey denied that he had been aggressive and stated that he came no closer than a distance of two metres from Mr Maynes: at [183]. Again, the conflict in the evidence was a matter to be resolved by the trial judge, which she did by accepting the account given by Mr Casey: at [185]. Her Honour also concluded that "this evidence did not establish that [Mr Casey] intentionally created the apprehension in [Mr Maynes] that he intended to commit an act of violence that involved physical contact with [Mr Maynes]": at [184]. 32The applicants' complained that her Honour had not considered whether Mr Casey had been reckless in his behaviour, even if he had not intended to create an apprehension that he might use force against Mr Maynes. While there may be doubt about what was to be inferred from an absence of behaviour that "intentionally or otherwise" indicated an intention to assault, such language was at least consistent with a finding that any apprehension on the part of Mr Maynes was not, in all the circumstances, a reasonable response. Accepting that there may be doubts as to the precise formulation of the intention required for an assault (as discussed, for example, in Hall v Fonceca [1983] WAR 309 at 313-314 (Smith and Kennedy JJ)), there were, again, findings of fact which stood between the first applicant and any realistic possibility of recovering damages for such a tort.

(c) breach of privacy 33The conduct of the respondents which was said to give rise to a claim for damages for breach of privacy was set out by the primary judge at [33]-[61]. On four occasions in late May and early June, one or both of the respondents drove onto the road through the applicants' property and took photographs or film of the property. Each of the incidents occurred after the respondents had been served with the statement of claim issued by the applicants in the District Court. The asserted purpose of the visits was to obtain evidence to respond to the allegations in the statement of claim. 34The absence from the common law of an established tort for unjustified invasion of privacy has been noted on more than one occasion. The judgments in the High Court in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor [1937] HCA 45; 58 CLR 479 were once thought to stand in the way of the development of such a tort. That view has been held to be wrong: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199 at [108], Gummow and Hayne JJ, Gaudron J agreeing. The applicants relied on these remarks and on Giller v Procopets [2008] VSCA 236; 24 VR 1 (Maxwell P, Ashley and Neave JJA). Giller was a case in which the Victorian Court of Appeal considered a claim for damages for breach of confidence, arising out of the release of a videotape of sexual activities between a couple, since estranged. In particular, the Court considered whether damages could be awarded for emotional distress, falling short of psychiatric injury, caused by the breach of confidence. 35These cases may well lay the basis for development of liability for unjustified intrusion on personal privacy, whether or not involving breach of confidence: cf John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484 at [124]. The difficulty faced by the applicants lay in the findings of fact made by the trial judge in the following passages: "194 I accepted that the [respondents] went legitimately to Bullfrog Road, a public road, for the purpose of investigating the serious claims made against them by the plaintiffs. Their investigation necessarily involved inspection of the access road leading to the house paddock. 195 I did not consider their conduct in undertaking these investigations to be an undue or serious invasion of any right to privacy possessed by the plaintiffs or to be highly offensive to a reasonable person of ordinary sensibility." 36The applicants have failed to demonstrate any plausible basis upon which such findings of fact could be challenged. The case therefore provides an inappropriate vehicle to consider any possible developments of the law with respect to intentional invasion of privacy.

Conclusions 37For these reasons, the application for leave to appeal should be dismissed. The following orders should be made: (1) Dismiss the appeal filed on 16 March 2011 as incompetent. (2) Grant the applicants an extension of time within which to seek leave to appeal until 21 April 2011. (3) Refuse the application for leave to appeal from the judgment of the District Court delivered on 23 December 2010. (4) Order the applicants to pay the respondents' costs of the motions as to competency, extension of time and seeking leave to appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2014

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