HEARING DATE: 4, 7 - 11, 15 and 16 February, and 21 March 2011

Torts - Trespass - Trespass to the person - What constitutes and defences thereto - Assault - Onus of proof of justification on defendant.

Howard v Wing [2000] TASSC 147; Miller v Sotiropoulos [1997] NSWCA 204; Underhill v Sherwell [1997] NSWCA 325; Devonport v Wilson [2009] SASC 336, applied.

Judgment Number: [2011] TASSC 20

1 These proceedings involve claims of assault and trespass made by the plaintiff against each defendant, and counterclaims of trespass made by each defendant against the plaintiff. The key claims arise from what is essentially a boundary dispute between the parties over a strip of land the width of which varies from between about one metre to about three metres.

2 The land in question is in Southport and is identified on a plan, copies of which were attached to amended statements of claim delivered to each defendant. In the course of the evidence a copy of this plan was a primary point of reference for witnesses. As discussed with counsel, I have added features, letters and other indicators to the plan, a copy of which appears at the end of this decision. References to such matters in the course of these reasons can usually be related back to this plan.

3 The strip of land runs between OR and WJ on the plan.

4 Whilst the plan refers to Monmouth Street, no such road has ever been formed. Monmouth Street was designated to be a reserved road by the registered plan which created the township of Hythe (now known as Southport) in July 1855. The land described as Monmouth Street was owned by the Crown. The plan shows the outline of a post office constructed on part of Monmouth Street many years ago. The title to this part, the post office block, was sold by the Crown and, in 1981, the plaintiff became the registered proprietor of that block. As established by an investigation conducted by the Recorder of Titles, the boundary of the post office block is O, O2, I, W.

5 The building that had been the post office was burnt down on 13 December 1996, and it has not been replaced. Its foundations and chimney remain, as do a clothes hoist, shed and a tank that were used in association with the building. The approximate positions of the foundations, clothes hoist, shed and tank are indicated on the plan. Apart from these structures, the post office block and relevant portions of the land described as Monmouth Street are vacant.

6 With expedition in mind, my focus in writing this decision is to explain my reasons to the parties. I regret that this may make it difficult for those who are not familiar with the exhibits, scene and issues, to follow some aspects of my reasons.

7 The primary claims made by the plaintiff, Alan Quarmby, are that on 17 January 2002 he was assaulted on three separate occasions by one defendant, Noel Harper, and once by the other defendant, Barrie Oakley. I will refer to each party by his surname.

8 Quarmby is a highly qualified engineer. He has a PhD and a DSc. He was 65 years of age in January 2002. At that time Harper was 62 years of age and managing a real estate business, and Oakley was 52 years of age and a papermaker with ANM.

9 It is common ground that on the day in question Quarmby, Harper and Oakley had several heated exchanges in the vicinity of the disputed strip of land. Quarmby says that in the course of a confrontation between Harper and himself, Harper shoulder bumped him on two separate occasions, on each of which he was pushed back a couple of paces. He says that on one occasion Harper raised a steel fence post driver to about shoulder height and threatened him with it. Harper denies these claims, but says that in the course of a confrontation when Quarmby refused to leave Harper's land, he on one occasion placed his hands on Quarmby's chest and pushed him back a step.

10 Immediately following the confrontation involving Harper and Quarmby, Oakley arrived at the scene. He and Quarmby then had a heated exchange and Oakley pushed Quarmby with his stomach. The circumstances of this push are in dispute. Oakley says he was threatened by Quarmby, who had raised his arms, and he, Oakley, pushed Quarmby in self-defence.

11 In his amended statements of claim against each of Harper and Oakley, Quarmby also asserts that they trespassed on his land. Harper and Oakley, in separate counterclaims, assert that Quarmby has trespassed on their land.

12 In order to deal with the various and competing claims of trespass, and deal with Harper's claim that insofar as he applied force to Quarmby, he did so in defence of his property, it is necessary to address the ownership of the land in question.

13 In 1976, Oakley and his wife, Dianne, became the registered proprietors of the block of land to the south-east of Quarmby's post office block. I will refer to this as the Oakleys' land. Prior to a rectification to which I will return, the western boundary of the Oakleys' land was from U to C.

14 In 1997, Harper became the registered proprietor of the block of land to the north-east of Quarmby's post office block. Prior to the rectification of his title, the western boundary of Harper's land ran from V to C. V was at the western end of the boundary Harper shares with his northern neighbours, Kenneth and Colleen King.

15 In very brief summary, by a final order made on 11 October 2004, the Recorder of Titles determined:

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That an error had been made when the land to the east of what was described as Monmouth Street was subdivided. That subdivision, SP8341, includes the Oakleys' land and Harper's land.

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The error was that the western boundary of the subdivision had been mistakenly drawn so as to leave a strip of land between the subdivided land and Monmouth Street, with the result that the subdivider, Barrie Wallis, retained title to that strip of land.

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That the correct boundaries to the titles of the Oakleys and Harper were as detailed in Plan No 137205.

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That the boundaries of the land comprised in the titles of the Oakleys and Harper "(formerly Lots 9 and 10 on Sealed Plan No 8341) be rectified to accord with the boundaries of the land comprised in Lots 9 and 10 on Plan No 137205 and that new folios issue in respect to these lots".

16 As determined by the Recorder, the rectified boundary runs through U2 and V2. In front of the Oakleys' land at U to U2, the strip of land that had been in contention was 1.12 metres wide, and in front of Harper's land at V to V2, that strip was 2.79 metres wide.

17 The Recorder's final order was made pursuant to the Land Titles Act in 1980, s142, and consistent with s142(16) new editions of the folios referred to, containing the requisite alterations were issued. Since then the Oakleys and Harper have owned the respective portions of the strip in front of their land. In order to achieve this, it was not necessary to alter Quarmby's title to the post office block. That title was not affected by the rectification, which simply moved the western boundary of the titles of the Oakleys and Harper so that it abutted with and was in alignment with the eastern boundary of the post office block.

18 Quarmby has never accepted the correctness of the Recorder's decision that resulted in the rectification of the titles of the Oakleys and Harper. He deferred closing his evidence on this trial in the expectation that he would be able to find a surveyor who would give evidence that supported his contentions referrable to the title to the disputed strip of land, and related matters. No such expert evidence was forthcoming. The defendant called expert evidence from two registered land surveyors, Garry Coombe and Paul Boland. Their evidence leaves me in no doubt that the Recorder's decision is correct.

19 Quarmby owns some 25 separate parcels of land in Southport and has done so since about 1981. He acknowledges having been involved in a number of disputes with neighbours about boundaries and the like. Of the disputes referred to in evidence, I mention two which have some bearing on my assessment of Quarmby's credibility. One involved a man named Pepper. It culminated in Quarmby being convicted in the Criminal Court on 5 May 2000 on two charges of assault. One conviction arose from a collision between a Land Rover driven by Quarmby and a quad bike ridden by Pepper. The other conviction arose from Quarmby pointing a rifle at Pepper. The penalty imposed on Quarmby for these convictions included an order that he be of good behaviour for a period of two years.

20 When Quarmby was first questioned in the course of this hearing about the Pepper incident, he denied being convicted of anything involving a rifle arising from it. When counsel returned to this issue the following day, Quarmby persisted with that denial. Whilst he acknowledged that one of his convictions was for driving his vehicle at Pepper, he denied having done so. Ultimately he acknowledged that his other conviction was for pointing a rifle at Pepper, but again denied that he had done so. As to this conviction he said that he had completely forgotten about it.

21 The other dispute with a neighbour to which I refer, occurred as a consequence of a survey carried out in April 2003, which is subsequent to the date of the confrontations between Quarmby, Harper and Oakley on 17 January 2002. Keating is the name of the neighbour involved. The dispute is the subject of a decision of this Court, Quarmby v Keating and Qasair Investments Pty Ltd [2007] TASSC 65 and a decision of the Full Court, Quarmby v Keating [2008] TASSC 71. Those decisions found that Quarmby had not acquired title by adverse possession to a strip of land that adjoined land he owned. That strip is on land owned by a company in which Keating had an interest. Quarmby continues to dispute this outcome. Since the Full Court's decision Keating has repeatedly damaged a fence along the boundary as Quarmby asserts it should be, and Quarmby estimates that he has reinstated that fence on eight to ten occasions. While this evidence has no bearing on Quarmby's reputation as known by Harper and Oakley on and prior to 17 January 2002, it is relevant to my assessment of Quarmby's credibility.

22 For some time prior to December 2001, Harper had been aware of talk to the effect that there was a discrepancy in the western boundary of his and other lots that fronted on what was described in plans as Monmouth Street. In December 2001, Harper noticed that branches had been cut off wattle trees along the boundary between his land and Quarmby's post office block. The branches had been thrown onto Harper's land. Harper assumed, correctly, that this had been done by Quarmby. Harper was aware that Quarmby had a reputation for involvement in boundary disputes with neighbours.

23 Harper became concerned about the possibility of a boundary dispute with Quarmby. Harper went to the Lands Titles Office to enquire about the western boundary of his land. He was told that in all probability there was a discrepancy in the western boundary of his and other lots in the same subdivision. Harper approached Barrie Wallis, the original subdivider of the land, who said that if a mistake had been made he would rectify it so long as it did not cost him anything. Harper then approached the owners of the other lots involved and they, with one exception, agreed to apply to the Recorder of Titles for the rectification of the boundary. Oakley was one of those who agreed to join in the application, as did Harper's immediate neighbours to the north, Kenneth and Colleen King. A surveyor, Garry Coombe, was engaged to carry out the necessary survey work. On 16 January 2002 he surveyed the area and placed a number of survey pegs on the site. Pegs were placed along the line of M to K. Coombe was seen by Quarmby as he carried out this work and Quarmby spoke to Coombe. Quarmby returned to the site the following morning, and this is when the bulk of the events that are the subject of the parties' respective claims occurred.

24 On the basis of Coombe's survey, the western boundary of the lots owned by the Oakleys and Harper should have run along the line of M to K rather than along the line of D to B. Whilst, as at 17 January 2002, Harper and the Oakleys had decided to apply to the Recorder of Titles to have that boundary rectified, the application had not then been made. It was not lodged until 25 January 2002 and, as mentioned, it was not finally approved until 11 October 2004. Its progress was delayed by a successful application by Quarmby to this Court for an order quashing a provisional order made by the Recorder.

25 Accordingly, as at 17 January 2002, Harper and the Oakleys did not own any portion of the strip of land in dispute. Harper acknowledged this when he gave evidence, and he acknowledged that until the rectification of his title he had no entitlement to remove Quarmby from the strip. Harper described the strip as "a remainder strip", which remained part of the subdivider's title until the rectification. A plea to this effect is made in par3 of Harper's counterclaim dated 23 February 2006. Whilst Harper acknowledged that until the rectification of his title he had no entitlement to remove Quarmby from the strip, it seems that this has not always been his position. When cross-examined, he agreed that he had previously claimed to have taken actual possession of BCLK (the portion of the strip that adjoins his land) by undertaking acts thereon consistent with possession since he purchased his land. Those acts were apparently mowing the strip. He also agreed that in answer to an interrogatory dated 16 April 2010, he had said that this possession gave him the right to hold the land as against Quarmby and all other persons, except the registered proprietor.

Quarmby's claims over land to the north and south of the post office block

26 The strip is not the only area of land in relation to which Quarmby has made claims against Harper and Oakley. In pars6 - 9 of both Quarmby's first statement of claim against Harper dated 7 June 2002, and his amended statement of claim of 28 July 2006, Quarmby made claims on the basis that Harper had wrongfully or unlawfully entered Quarmby's land. The land is identified as ABJI in the amended statement of claim. It is to the north of Quarmby's post office block.

27 A similar claim is made against Oakley. In pars4 and 5 of Quarmby's first statement of claim against Oakley, dated 7 June 2002, and pars9 and 11 of his amended statement of claim of 28 July 2006, Quarmby made claims on the basis that Oakley had wrongfully or unlawfully entered Quarmby's land. The land is identified as ABJI in the amended statement of claim.

28 In par7 of Quarmby's first statement of claim against Oakley, and in pars2 - 4 and 12 of his amended statement of claim against Oakley, Quarmby made claims on the basis that Oakley had wrongly or unlawfully entered Quarmby's land. This land is identified as DEPNR and DRNP in the amended statement of claim. It is to the south of Quarmby's post office block.

29 The defendants deny Quarmby's claims to own the land to the north and south of his post office block. They say this land is owned by the Crown.

30 In answer to an interrogatory sworn on 17 September 2010, Quarmby said that the land identified as ABJI was part of Folio of the Register Volume 201428 Folio 1, that is, his title to the post office block. He did not persist with this claim when he gave evidence and I reject it.

31 In evidence Quarmby said he had a general law title to the lots to the north and south of the post office block. He denied that the Crown owned this land. However, he acknowledged that in an application to the Huon Valley Council dated 15 October 2004, in which he had sought a boundary adjustment, he asserted that the land to the north and south of his post office block was under purchase by him from the Crown. That assertion was false. The Crown has never entered into an agreement to sell this land to Quarmby.

32 When asked to produce his general law title to the lots in question, Quarmby produced conveyance 56/7057 and said, "It's got them all listed." Following a detailed examination of that conveyance, he acknowledged that the lots in question were not included in it. He then said that if you followed the chain of conveyances back to 1859 the two pieces of land north and south of the post office block were in those conveyances. He said that he had checked that they were in those conveyances but had not realised that they were not in the conveyance to him.

33 The following day, when Quarmby resumed giving evidence, he in substance said he had found the source of his general law title to the lots in question and specified a conveyance and two survey diagrams upon which he relied.

34 Some days later, by which time the defendants' lawyers had obtained copies of the specified survey diagrams, Quarmby returned to the witness box. He agreed that the survey diagrams did not relate to the lots in question. Before ultimately acknowledging that the lots had not been conveyed to him, he embarked on a convoluted explanation about why he believed they were included in land which was the subject of a contract of sale to him in 1981. In the course of this evidence Quarmby made a specious comment to the effect that earlier evidence he had given of his general law title to the lots was given off the top of his head. I find that Quarmby does not own and never has owned the land to the north and south of the post office block.

35 Quarmby's claim to own the land to the north and south of the post office block, his evidence in support of that claim, and the manner in which he gave it, impact most adversely on his credibility. In his application to the Huon Valley Council dated 15 October 2004, he acknowledged that this land was owned by the Crown. Notwithstanding that acknowledgment, before this Court he persisted with the false claim that he had a general law title to the land. In the course of submissions, Quarmby's counsel acknowledged that he could not point to any evidence that Quarmby owned the land. Counsel explained the evidence of Quarmby on the basis that Quarmby clearly believed that he had title to the land.

36 Quarmby's evidence about why a copy of a Lark and Creese survey dated 7 January 2003 was not provided by him to the Recorder of Titles in the course of her consideration of the title rectification application, also impacts adversely on his credibility. Amongst the things Quarmby said was that the Recorder had refused to allow him to present survey evidence. On a later date in the course of his evidence he said that over the previous night he had gone through his correspondence with the Recorder, and that in a letter to him the Recorder had said that she would not have any expert evidence, that he could not present survey evidence. The correspondence to which he referred was subsequent to an initial hearing before the Recorder. The overall effect of all the evidence before me is that Quarmby had an opportunity to tender that plan at the initial hearing before the Recorder but did not do so. Moreover Quarmby was not able to identify a letter that said he could not present survey evidence, although the effect of the correspondence was that further evidence would not be received.

37 Quarmby's evidence in relation to the above matters demonstrates his inability to accept or acknowledge that which does not suit him. Further illustrations of this are the evidence he gave in relation to Pepper and Keating, and his evidence referable to the Recorder's decision on the rectification application. He could not accept that her decision was correct, and could not accept that her decision dealt with the disputed strip, when plainly it did. Quarmby's counsel submits that Quarmby's difficulty in accepting these matters reflects more on his state of mind than on his credibility. In my view this submission is too generous to Quarmby. The view that I have formed from this and other evidence is that on occasions Quarmby will not accept or acknowledge the truth or the reality of a situation that does not suit him, and that he will resort to obfuscation and prevarication to avoid doing so.

38 The confrontations between the parties on 17 January 2002 occurred at about 8.30am. The gist of Quarmby's evidence is that he was at the site measuring from point 2 to V, the western end of the boundary between Harper and the Kings. When standing near point 2, Harper approached and asked Quarmby what he was doing. Quarmby replied that he was taking measurements. Harper said to Quarmby that he was on Harper's ground and told Quarmby to get off. They argued about whose ground it was, where the boundary was and where the boundary fence should be. Each indicated the line upon which he proposed putting a fence. Harper said that the ground had been his since he began mowing it four years previously. Harper became most aggressive and threatening and called Quarmby a fucking cunt and a pommy cunt. Throughout their exchange Harper was saying "get off my land" and Quarmby was saying it was not Harper's land. This exchange concluded when Harper "shoulder charged" Quarmby by taking a couple of paces towards Quarmby and used his left shoulder to bump Quarmby's right shoulder. The charge caused Quarmby to step back a few paces. Following the charge Harper walked away up to his home. This is the substance of Quarmby's evidence in relation to his first allegation of assault against Harper.

39 Quarmby said that shortly after the above, Harper returned to the area in front of Harper's land in his motor vehicle towing a trailer. The trailer had fencing gear in it. Harper stopped about four metres north of the shed and the clothes hoist. As Harper unloaded the trailer, Quarmby walked to a position between the clothes hoist and shed but slightly to the north of the clothes hoist. Harper again abused Quarmby. The abuse included calling him a fucking pommy cunt. Harper told Quarmby to get off his land and then shoulder charged Quarmby in the same way as previously. This caused Quarmby to step back a couple of paces. When this occurred Quarmby was on the flat just north of the clothes hoist. This is the substance of Quarmby's evidence in relation to his second allegation of assault against Harper.

40 Quarmby said that, having taken a couple of steps back following Harper's second shoulder charge, he stepped forward, whereupon Harper picked up a steel fence post driver and raised it to shoulder height in a threat to strike Quarmby. As Harper did so, he said to Quarmby, "You're on probation for two years, if you do anything I'll get you in prison." This is the substance of Quarmby's third allegation of assault against Harper, an allegation of an assault by a threatening gesture.

41 Quarmby said that following the above threat Oakley arrived on the scene. At this time Quarmby was standing back up the bank. He had followed Harper there as Harper carried fencing material up the bank. Quarmby was "still embroiled with Harper yelling". Oakley had walked to Quarmby from the direction of his home down the strip or over Harper's land. Oakley was very abusive and aggressive and shouted at Quarmby such things as, "Get out of here, I'll fix you." Oakley called Quarmby a pommy cunt, a fucking pommy cunt and a few variations along the same theme. Oakley said, "You're on probation for two years, if you do anything we'll get you in prison." Oakley walked towards Quarmby and, using his protruding stomach, pushed Quarmby "violently back down the bank". Quarmby said, "I went backwards over the bank and landed on my right ankle." He did not fall over but remained upright. He did not feel ankle pain at that point but did so subsequently. When cross-examined, Quarmby said he had not walked towards Oakley as he, Quarmby, was still embroiled with Harper yelling when Oakley approached. Quarmby said that he was not actually looking at Oakley when Oakley pushed him, although he saw Oakley coming and to his certain knowledge Oakley pushed him with his stomach and no other part of his body. He said that before pushing him, Oakley had taken a couple of steps towards him and that in consequence he was knocked down the bank. He was not sure where Oakley was when he first saw him, but Oakley had certainly moved to point Y and assaulted him at the precise position of point 2. This is the substance of Quarmby's allegation of assault against Oakley.

42 The following is the gist of Harper's evidence in relation to these matters. On 17 January 2002, Harper saw Quarmby as Harper was walking down the driveway of his home with the intention of constructing a fence along the western boundary of the strip, as pegged the previous day by Coombe. When Harper first saw Quarmby he was kneeling at V, the western end of the boundary between Harper and the Kings. Harper asked Quarmby what he was doing and Quarmby replied that he was taking measurements. In the course of their conversation both he and Quarmby indicated that they intended constructing a boundary fence, but along different lines. They argued and their voices became raised. Harper said, "I gave it away and I walked up my driveway and loaded up my trailer." Harper denied any physical contact with Quarmby during this episode. He also said that at no time did he or Quarmby use bad language. This is the substance of Harper's evidence about the period that is the subject of Quarmby's first allegation of assault against Harper.

43 After loading fencing gear onto his trailer, Harper drove from his land and parked on the Crown land in front of his block. His evidence as to where his vehicle and trailer finally came to a halt is much the same as Quarmby's. Harper said that by the time he drove back to the scene Quarmby had moved from point V, which is to the immediate north of Harper's driveway, to the southern side of that driveway. Harper described Quarmby's then position by reference to a number of features in the photographs and the plan, one of which is point Z. Harper said that he unloaded equipment from his trailer and carried it up the slope to where he was intending to construct a fence.

44 Quarmby was in the general vicinity of where Harper was unloading the equipment. Harper unloaded a steel fence post driver, placed it on the ground near a wattle tree on his property and returned to the trailer for some pickets. He then noticed that the post driver had been thrown back towards the trailer. He assumed this was done by Quarmby, as he was the only person in the vicinity. Neither Harper nor Quarmby said anything about the throwing of the post driver. Harper picked it up, walked back to where Quarmby was and put it down.

45 Harper and Quarmby resumed arguing about the land. Harper told Quarmby that if he thought he had a claim on the land, then he should take it to court, and Quarmby replied that he would not be doing that. Harper told Quarmby he was a thief who tried to take the land of others and that if he thought he could take Harper's land, he had another thing coming. Harper told Quarmby that it would be an offence to take Harper's land, which would breach Quarmby's good behaviour bond. Harper said at this point he was standing at point Z. Point Z is and was on Harper's land. The then western boundary of Harper's land ran through J and B, and Z is about two metres east of that boundary.

46 Harper said that he and Quarmby argued loudly, but again neither used bad language. Their argument was more vigorous and louder than their first exchange. Harper said words to the effect of "this is going nowhere you'd better get off my property". Quarmby folded his arms across his chest and said "no". Harper said in a louder voice "get off my property" and when Quarmby did not move, Harper placed his hands on Quarmby's chest (Quarmby having unfolded his arms) and Harper pushed Quarmby who took a step backwards onto the strip. Prior to pushing Quarmby, Harper had positioned himself on the upper side of Quarmby at point Z. This is the substance of Harper's evidence about the incident which I conclude is the basis for Quarmby's second allegation of assault against Harper.

47 Harper's evidence about what he did with the fence post driver is as outlined above. He denies Quarmby's allegation that he threatened Quarmby with it and says that he at no time did so.

48 Harper said that after he had pushed Quarmby their argument ceased, Quarmby walked south along the strip and Harper started working on the fence.

49 The next thing Harper observed was Oakley walking down the strip towards Quarmby from the direction of his home. They met on the strip in front of Harper's land just to the north of the tank. Their voices were raised. Oakley used colourful language that included the words fuck, cunt and pommy and other abusive language. Harper saw Quarmby "raise his arms in an attitude of surrender with his hands above his shoulders ... but before he had completed that action" Oakley, who was standing fairly close to Quarmby, pushed him with his stomach. The push caused Quarmby to take a step, or it might have been two steps, backwards. That was the end of the incident. Harper went back to work and when he next looked around, Quarmby had gone.

50 The gist of Oakley's evidence in relation to these matters is as follows. He had arranged to assist Harper to fence the boundary in dispute. Consistent with that arrangement, on the morning of 17 January 2002, he was in front of his home ready to go and help Harper. He heard Harper and Quarmby arguing. Oakley walked onto the strip at about R and then along it to somewhere north of C and south of J. From his identification of his position by reference to photograph B, I conclude that at this time he was some metres north of the tank. He could see Quarmby and Harper, they were on Harper's land, slightly north east of J. They were arguing about ownership of the land. He heard Harper tell Quarmby to get off his land about three or four times. By the time Oakley got there they had ceased arguing. Harper, having told Quarmby to get off his land, nudged or pushed him with his open hands when he did not do so. When pushed Quarmby took a step back onto the strip. Oakley did not hear Quarmby or Harper use foul language

51 Oakley said that after being pushed by Harper, Quarmby was on the strip in the vicinity of J. Quarmby then turned towards Oakley, who walked down towards Quarmby. They argued about the ownership of the strip. Oakley swore at Quarmby and abused him, calling him a stinking pommy cunt two or three times. They moved towards each other but had virtually stopped about two steps apart when Quarmby raised his hands to just about above his head. Oakley thinks his own arms were crossed at this time. When Quarmby raised his arms Oakley thought he was going to be hit so he "belly-butted" Quarmby, "bashed him" with his belly.

52 When cross-examined about why he thought he was going to be hit, Oakley said: "Well when somebody's standing in front of you, reasonably close in front of you, and they put [their] hands up like that there's gotta be something come out of it ... I thought he was going to hit me and with my bad back and my bad knees I moved first and belly-butted [him]". Oakley said that he was not prepared to walk backwards on uneven ground because of his bad back and knees. He said that what he did was warranted as he had been in a heated argument with Quarmby when he put his hands in the air. He accepted that the manner in which Quarmby raised his hands could have meant "I surrender" but made it plain that this is not how he interpreted Quarmby's actions.

53 Oakley said Quarmby had never previously shown him violence or argued with him, and that although he was aware that Quarmby had behaved violently towards Pepper, had rammed Pepper's four-wheel motor bike, and had "gut shot Pepper with a 22 rifle", this was not something he thought about that morning.

54 At the outset of his evidence, Oakley described himself as being "shocking awful with dates and names", and he repeated this self-assessment several times in the course of his evidence. Insofar it recognises that he has a most unreliable recall of the chronology of events, it is plainly correct. He maintained in his evidence that prior to the confrontation on 17 January 2002, Coombe had completed and submitted his survey plan, the plan had been seen by Oakley, the rectification application to the Recorder of Titles had been lodged, and he had attended a meeting referable to that application with his wife, the Harpers, Coombe, Wallis and Quarmby. He, in effect, said that the rectification application had been approved prior to the confrontation. This evidence is totally incorrect. These events did not occur prior to the confrontation, they occurred after it. Had the chronology of any event been in issue I would not have relied on Oakley's evidence on that issue. As it happens, the chronology of the events on the day in question, of which Oakley can give evidence, is not really in issue, and there is no question that Oakley's confrontation with Quarmby was the last of those events.

55 When cross-examined on the basis that he had simply lost his temper with Quarmby and gone forward and bumped him, Oakley replied, "I definitely went forward and bumped ... Quarmby but lose my temper - I don't think I did that."

56 Quarmby's brother-in-law, Tom Hoyle, was present. He was standing near the roadway end of Harper's driveway. He is now in England and for this reason, coupled with poor health, he did not give evidence. There is no suggestion that Hoyle became involved in any of the incidents that are the subject of this litigation. When giving evidence Oakley acknowledged seeing Hoyle following his exchange with Quarmby. After giving that acknowledgment, the following ensued:

"MR O'FARRELL SC: ... And did you have occasion to speak to Mr Hoyle?......No.

Right.....Or did I?

That's Mr Hoyle?......Yes, I think I actually did. Yes, sorry, but I did.

Can you recall ... what you said to him?......I said, 'What are you doing here you pommy bastard, why don't you go back to England where you'd come from'.

Yeah......And Mr Hoyle returned at what's a name and said, 'Oh', he said, 'and where do you think you came from'. I said, 'I'm not a bloody pom', I said, 'I'm kraut', and that was the end of the discussion."

57 Hoyle had done nothing whatsoever to warrant Oakley's abuse. That Oakley spoke to Hoyle in this way does him no credit. However, somewhat paradoxically, from this and other aspects of Oakley's evidence I formed the impression that Oakley was essentially an honest witness. As his conversation with Hoyle put him in a bad light, I was favourably impressed by him volunteering evidence of it. Nonetheless, the evidence leaves me in no doubt that Oakley did lose his temper that morning. I reject his evidence to the contrary. I also reject Oakley's denial that he is an aggressive person. The evidence already referred to, and the manner in which Oakley gave evidence, in particular the loud and belligerent manner in which he responded "No" to the proposition that he was an aggressive person, cause me to conclude otherwise.

How the assault allegations were developed in the course of the pleadings

58 Before returning to the four alleged assaults I will refer to the pleadings, as the way in which the nature, sequence and place of the alleged assaults developed in the course of the pleadings is of relevance.

59 Quarmby instituted proceedings against Oakley in a writ dated 20 March 2002, and against Harper in a writ dated 27 March 2002. Each writ contained an endorsement in which Quarmby claimed "damages and other expenses occasioned as a result of the defendant's trespass on the plaintiff's land ... on 17 January 2002 ...". Neither writ referred to an assault.

60 Quarmby's initial statement of claim against Harper, dated 7 June 2002, included pleas that on 17 January 2002 Harper:

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wrongfully entered Quarmby's land and "by physical assault attempted to forcefully dispossess [Quarmby] of part of [his] land"; and

•

wrongfully entered Quarmby's land with a motor vehicle and trailer.

61 In response to a request for particulars of the above, Quarmby pleaded that the physical assault occurred on a strip of his land five metres wide and 42 metres long, lying on the east side of his land and being part of that land, and that he was assaulted by Harper:

•

"twice shoulder charging [him] in the chest causing him to stagger backwards"; and

•

"raising a steel post driver over his head and threatening to strike [him] with it."

62 Prior to 15 February 2006, Quarmby delivered an amended statement of claim. It includes pleas that on or about 17 January 2002, Harper unlawfully entered Quarmby's land "and moved to the general vicinity of the point marked X" on the plan, and that at this time and place Harper:

•

"physically assaulted [Quarmby] by twice charging [him] and causing [him] to stagger backwards"; and

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"assaulted [Quarmby] by raising a steel post driver over his head and threatening to strike [him] with it".

63 Harper's defence and counterclaim, dated 23 February 2006, includes a plea that on 17 January 2002, Quarmby unlawfully entered Harper's land and moved to the general vicinity of the point marked Z, and when Quarmby refused to leave Harper's property, and was asked a second time to do so, Harper "placed both his palms against [Quarmby's] chest and pushed him with sufficient force so that he took a step backwards which placed him into the land marked BCLK".

64 In Quarmby's defence of 28 July 2006 to Harper's counterclaim, Quarmby denies the above allegation, and says he was standing at a point slightly west of K when he was approached by Harper and told to "get off". He refused to do so and thereupon Harper "charged at [Quarmby] and bumped [Quarmby] with his shoulder on two occasions causing [Quarmby] to stagger backwards".

65 Quarmby's initial statement of claim against Oakley dated 7 June 2002, includes a claim of "violent physical assault" that occurred on 17 January 2002. In his particulars of that assault dated 4 July 2002, Quarmby said that he was "violently assaulted by ... [Oakley] charging at [him] and knocking him down a steep bank causing severe injury to [his] right ankle".

66 An amended statement of claim delivered by Quarmby to Oakley prior to 15 February 2006, contains a plea that on 17 January 2002, Oakley unlawfully entered Quarmby's land and "moved to the general vicinity of the point marked Y", and at that place Oakley "physically assaulted [him] by charging at [him] and knocking him over down a steep bank".

67 In his defence to that amended statement of claim, Oakley denied the assault as alleged by Quarmby and pleaded that they "were both standing approximately 18 inches apart on the strip of land marked BCLK and were involved in a heated argument. [Quarmby] raised his hands and [Oakley], fearing he was about to be hit, stepped closer to [Quarmby] which resulted in [Oakley's] stomach, which was large and protruding, coming into contact with [Quarmby's] stomach causing him to step backwards".

68 Quarmby personally prepared his pleadings that preceded the amended statements of claim he delivered prior to 15 February 2006. In evidence, Quarmby said that those amended statements of claim were prepared "with precision" by his lawyer, and that he was involved when the letters X and Y were inserted on the plans attached to those statements of claim.

Inconsistencies as to where the assaults occurred and whether they were separate

69 Whilst I would ordinarily not place much significance on inconsistencies between pleadings and evidence about the position where an assault was alleged to have occurred, I do so in this case as at the time of the alleged assaults, the parties were acutely conscious of, and in dispute about the boundaries of their land.

70 In the particulars to Quarmby's initial statement of claim against Harper, Quarmby asserted that when Harper twice shoulder charged him and threatened him with a post driver, Harper was on "a strip of [Quarmby's] land five metres wide and 42 metres long lying on the eastside of [his] land and being part of that land". In his amended statement of claim against Harper, Quarmby asserts that the place where these incidents occurred was in "the general vicinity of the point marked X". In his defence, dated 28 July 2006, to Harper's counterclaim, Quarmby asserts that the two shoulder bumps occurred when he was standing at a point slightly west of point K. In evidence Quarmby said that the first assault by charging occurred near point 2 (a position more than six metres south of point K), and that the second assault by charging, and the post driver threat, occurred at a position between the clothes hoist and the shed, but slightly north of the clothes hoist. Quarmby agreed that the latter position is about ten metres down from point 2. It is even further from point K. Each of these three positions is also markedly different to point X, which is well south of the shed and clothes hoist, and is also well within Quarmby's undisputed title to the post office block. I mention that I have not overlooked that early in the course of his evidence Quarmby said that point B was the same as point 2. This was an obvious error.

71 A different aspect of the inconsistencies relates to the assaults alleged by Quarmby against Harper. In the particulars to his initial statement of claim, and in his amended statement of claim, Quarmby asserted that the three assaults occurred in the same place. Moreover, in his defence to Harper's counterclaim, Quarmby asserts that the two shoulder bumps occurred when he was standing at a point slightly west of point K. In this position he says that, having been told to "get off", he was charged by Harper who "bumped him with his shoulder on two occasions causing [him] to stagger backwards". This is an allegation of one incident involving two bumps, and is inconsistent with his evidence of two shoulder charges at separate and distinct times and places.

72 In the endorsement on his writ against Oakley, Quarmby made no mention of an assault. In his initial statement of claim against Oakley, Quarmby pleaded that he had been physically assaulted by Oakley, and in particulars of that plea he said that when Oakley was on the strip he "violently assaulted" Quarmby by "charging at [him] and knocking him down a steep bank causing severe injury to [his] right ankle." In his amended statement of claim against Oakley, Quarmby asserts that this assault occurred in "the general vicinity of the point marked Y" and it involved Oakley "charging at [Quarmby] and knocking him over down a steep bank". A particular of his injuries is an injury to his right ankle.

73 In evidence, Quarmby placed the position of Oakley's assault at south of point 2. Point 2 is well north of Y. He described the assault as a violent push with the stomach and agreed that he had not been knocked over by the assault. In his evidence Harper said that this incident occurred on the strip north of the tank, and Oakley said it occurred in the vicinity of J. I find that the land in the vicinity of these various positions, that is, point 2, on the strip north of the tank, and J, slopes down to the west, but at no point would I categorise it as being a steep bank. Accordingly, Quarmby's plea that he was knocked over down a steep bank is not correct. This error, and the other inconsistencies referred to, do Quarmby's credit no service.

74 Toby Quarmby ("Toby"), the son of Quarmby, is the final witness whose evidence I will address in any detail. Dianne Oakley, the wife of Oakley, and Colleen King and Kenneth King, the owners of the block to the north of Harper, also gave evidence. I will refer to their evidence in the course of my findings.

75 At the time of the key events in issue, Toby was 17 years of age. Although no witness, including Quarmby, gave evidence of seeing Toby at the scene, I am satisfied that he was present at the time of some of the relevant events. Toby said that when he arrived at the scene, Harper's car and trailer were parked in front of Harper's block. Accordingly Toby was not in a position to give evidence about the first shoulder charge incident, which Quarmby says occurred before Harper drove his vehicle and trailer to that area.

76 Toby said that when he first saw Harper and his father they were in the vicinity of K and B and that after he, Toby, had changed his position, Harper and his father were about two metres north of X and about three metres below the line of J to C. This is a significantly different position from where Quarmby says the second shoulder charge occurred. It is also a significantly different position from where Harper says he pushed Quarmby.

77 The only physical contact that Toby saw between his father and Harper was Harper pushing Quarmby as Harper moved towards a fence post. He described the push as "a shove to get through", and said that it caused Quarmby to step to the right and a little backwards. He said that at the time Harper was holding a bar about seven to eight feet in length and one inch in diameter. Toby did not see Harper threaten Quarmby with this bar or a steel fence post driver. Toby's description of this bar bears no resemblance to the steel fence post driver described by other witnesses.

78 Insofar as Toby describes what he saw as a push or a shove, not a shoulder charge, this evidence tends to support Harper's evidence that his physical contact with Quarmby was a push. However, it does not really assist in relation to the nature of that physical contact or the position where it occurred. This is because neither Quarmby nor Harper, or any other witness, suggests that at the time of the physical contact they observed, Harper was holding any implement, let alone a bar seven to eight feet in length.

79 Toby said that following the only physical contact that he saw between his father and Harper, Oakley arrived from the direction of his home. His father walked towards Oakley, and they met just on the south side of the shed. Oakley was abusing his father and they were arguing about the boundary. When cross-examined he said they met between Y and L, to the south of the water tank, and he marked this position on photograph I. He marked a similar position on the second plan in P6. At one point he said that they walked down towards Y. He said that when they met, Oakley was higher up the slope than Quarmby. They were very close and Oakley pushed Quarmby. Toby saw the motion of Oakley going forward and he saw Oakley's hand on Quarmby's arm as Oakley pushed forward. The push caused Quarmby to fall backwards down the embankment, turn sideways and roll. Quarmby ended up lying on the ground at the bottom of the bank. Quarmby could not walk very much, he was significantly unable to move, and Toby and Hoyle had to help Quarmby to Hoyle's car.

80 Toby's description of what happened to his father after Oakley pushed him bears little resemblance to the evidence of other witnesses to this incident, including that of Quarmby. No other witness says Quarmby fell to the ground, let alone turned sideways rolled and ended up lying on the ground at the bottom of a bank. Similarly, no other witness says Quarmby could not walk very much and was significantly unable to move. Toby's evidence that he assisted Quarmby to Hoyle's car is not supported by the evidence of any other witness. Had Quarmby been significantly unable to move and had he been helped to Hoyle's car by Toby, it is inevitable that Toby would have been seen, and highly likely that Quarmby himself would have recalled that Toby had been there.

81 I refer to one other matter about which Toby gave evidence. He said that he heard Harper telling his father to "fuck off". His evidence to the effect that Harper swore at Quarmby finds no support in the evidence from other witnesses, besides Quarmby, and I reject it. I conclude that both Toby and Quarmby have mistakenly attributed language used by Oakley to Harper.

Findings on Quarmby's assault allegations against Harper

82 Where there is a conflict between the evidence of Harper and Quarmby, except where otherwise stated, I accept the evidence of Harper over that of Quarmby. I do so because I did not discern any good reason for rejecting Harper's evidence, and no good reason for my doing so has been advanced. On the other hand, I have very real doubts about the reliability and veracity of Quarmby's evidence.

83 I reject Quarmby's first allegation of assault against Harper, that is, his allegation that at the outset of their confrontation, before Harper had driven his vehicle and trailer to the area in front of his block, Harper shoulder charged Quarmby. I reject this allegation because Quarmby's evidence of this incident is directly contradicted by Harper, and there is no independent support for Quarmby's evidence. In rejecting the allegation, I am also influenced by the fact that at no time in the course of his pleadings did Quarmby clearly distinguish between the place and time of the two alleged shoulder charges. For example, in his amended statement of claim he alleged that when in the vicinity of point X, Harper twice charged him, causing him to stagger backwards. The thrust of the pleadings is that there was one incident in which he was shoulder charged twice.

84 Quarmby's second allegation of assault against Harper is of a shoulder charge which occurred after Harper had driven his vehicle and trailer to the front of his block and begun unloading the trailer. By this time Quarmby said he had moved to a position between the clothes hoist and shed, but slightly north of the clothes hoist. I reject Quarmby's evidence of this shoulder charge as it is directly contradicted by Harper, and there is no independent support for it. Whilst I reject Quarmby's evidence, I find that at about this time Harper did apply force to Quarmby when he was on Harper's lot, at about point Z. This occurred after Harper had twice told Quarmby to get off his property, when Harper placed his hands on Quarmby's chest and pushed him, causing him to take a step backwards. In broad terms, Oakley's evidence of this incident is consistent with that of Harper's. He said that when Quarmby and Harper were on Harper's land, slightly north east of J, Harper, having told Quarmby to get off his land, nudged or pushed Quarmby with his open hands, when he did not do so.

85 It seems from the evidence of Diane Oakley that she was in the vicinity when this incident occurred. Her attention had been drawn by the sound of Harper and Quarmby arguing. As she moved to a position, which obscured her view of them, she saw them in a position which, on her evidence, was well on Harper's land. Amongst the things she heard was Harper twice telling Quarmby to leave his property.

86 Harper admits pushing Quarmby. I have found that this application of force occurred when both Quarmby and Harper were on Harper's land after Harper had twice told Quarmby to get off his land. I further find that this was a lawful application of force. It was no more than Harper reasonably considered to be necessary in order to remove Quarmby, who was trespassing on Harper's land. The force Harper used was not intended to cause, and was not likely to cause, death or grievous bodily harm. See the Criminal Code, s41. Accordingly, insofar as this application of force might be encompassed by Quarmby's second allegation of assault, it cannot sustain that allegation.

The third assault and the throwing of the steel fence post driver

87 Quarmby's third allegation of assault against Harper is an allegation of an assault by a threatening gesture. Quarmby says that after he took a couple of steps backwards following Harper's second shoulder charge, he, Quarmby, stepped forward, whereupon Harper picked up the steel fence post driver and raised it to shoulder height in a threat to strike Quarmby.

88 Harper denies threatening Quarmby with the post driver. His evidence is that having unloaded fencing equipment from his trailer, that included a post driver, he carried the post driver up the slope and placed it near a wattle tree on his property. As he was returning to his trailer, the post driver hurtled past him. He looked around and Quarmby was the only person in the vicinity. He assumed that Quarmby had thrown the post driver, but nothing was said between them about this incident. Harper picked up the post driver and took it back to where it had been. Quarmby denies throwing the post driver and says that he never touched it.

89 On the morning of this confrontation Colleen King was in the lounge room of her home when her attention was attracted by raised voices. She looked out the window towards the driveway leading from Harper's home and saw a post driver go down the driveway. It appeared to have been thrown. She did not see who threw it. After it came to rest she saw Harper pick it up and go back up the driveway in the direction from which the implement had come.

90 That morning Kenneth King was in the front garden of his home when his attention was drawn to the raised voices of Quarmby and Harper, who were arguing. He saw Harper unloading implements from his trailer, one of which was a post driver that was on the ground. He saw Quarmby pick up the post driver and throw it down the strip. Harper went down, picked it up and returned it. Kenneth King did not see Harper threaten Quarmby with the post driver.

91 I reject Quarmby's evidence that Harper threatened him with the post driver. Harper denies this assertion, and no witness, including Toby, has given any evidence that lends support to Quarmby's claim.

92 Harper's evidence to the effect that Quarmby threw the post driver towards the trailer is substantially supported by the evidence of the Kings, and I accept it. In so finding, I reject Quarmby's evidence that he did not throw or touch the post driver. This finding is another matter which bears on my assessment of Quarmby's credibility.

93 By his amended statement of claim, Quarmby alleged that Oakley assaulted him by charging him and knocking him over down a steep bank, causing injury to his right ankle. Save for the evidence of Toby, no witness, including Quarmby, asserted that he was knocked over. I have rejected Toby's evidence in this regard.

94 Quarmby said that following the Harper incidents, he was standing back up the bank having followed Harper there as he carried fencing material up the bank. Quarmby was "still embroiled with Harper yelling" when Oakley walked to Quarmby from the direction of his home. Oakley was very abusive and aggressive, and shouted at Quarmby such things as, "Get out of here, I'll fix you." Oakley called Quarmby a pommy cunt, a fucking pommy cunt, and a few variations along the same theme, and also warned Quarmby that, as he was on probation, if he did anything he would go to prison. Oakley walked towards Quarmby and, using his protruding stomach, pushed Quarmby violently back down the bank. When cross-examined, Quarmby said he had not walked towards Oakley as he was still embroiled with Harper. He said he was not actually looking at Oakley but saw him coming, and that Oakley took a couple of steps towards him and pushed him.

95 Toby said that following the physical contact that he saw between his father and Harper, Oakley arrived from the direction of his home. His father walked up towards Oakley and they met just on the south side of the shed. At one point he also said that they walked down together towards Y. Oakley was abusing his father and they were arguing about the boundary. Oakley was higher up the slope than Quarmby. They were very close and Oakley pushed Quarmby. Toby saw the motion of Oakley going forward and he saw Oakley's hand on Quarmby's arm as Oakley pushed forward. The push caused Quarmby to fall backwards down the embankment. Following the push, Quarmby needed help to get to Hoyle's car.

96 Oakley said that after Quarmby was pushed back onto the strip by Harper, Quarmby turned towards Oakley, who was walking down the strip. They argued about the ownership of the strip. Oakley swore at Quarmby and abused him, calling him a stinking pommy cunt two or three times. They had virtually stopped moving towards each other when about two steps apart. Quarmby raised his hands to just about above his head. This caused Oakley to think that Quarmby was going to hit him, so he "belly-butted" Quarmby, "bashed him" with his belly. Quarmby took about two steps backwards and walked off in the direction of Harper's trailer. Oakley insisted that what he did was warranted as he had been in a heated argument with Quarmby who had raised his hands and caused Oakley to think that he was going to be hit. Oakley acknowledged that he had moved forward in order to belly-butt Quarmby. Oakley said he thought he still had his arms folded at the time of the belly-butt.

97 Harper's evidence is that after he had pushed Quarmby, he saw Quarmby walk up the strip as Oakley was walking down it. They met on the strip just north of the tank. Their voices were raised and they were arguing about who owned what. They were standing fairly close together as they argued, and Oakley was abusing Quarmby and using colourful language. Quarmby "raised his arms in an attitude of surrender with his hands above his shoulders ... but before he had completed that action" Oakley pushed Quarmby with his stomach. The push caused Quarmby to take a step or two backwards but remain on the strip. That was the end of the incident.

98 Colleen King said that after seeing what she did of the post driver being thrown, she walked to the scene from her residence. She there saw Oakley and Quarmby in heated discussion. Oakley had his arms folded. He was abusing Quarmby. They were face to face. Her initial description of what then occurred was that Quarmby was standing with his hands up slightly above head height, and Oakley took a step towards Quarmby and bumped him with his stomach. This caused Quarmby to take a couple of steps back, but he did not fall over. Quarmby walked away back down across the Crown land. As to the sequence of Quarmby raising his hands in the air and the stomach bump, she said: "It just seemed like it happened one after the other, there was no, no deal, I've got no recollection of the time in between". At a later point in her evidence she said that Quarmby put his arms up in the air just as Oakley went to go towards him, and she agreed that at the moment that Oakley started to move towards Quarmby, his arms went up. She said that Oakley's arms were still folded at the time of the bump.

99 Kenneth King said that after he saw the post driver thrown, he saw Oakley standing further up the strip, not moving, with his arms folded observing what was going on. Oakley and Quarmby were arguing and Oakley was using a lot of colourful and foul language. He initially said that Quarmby approached Oakley with his arms in the air, and he demonstrated how Oakley thrust his stomach into Quarmby. He said that this caused Quarmby to stagger back a little. He said he could not really say what the timing was between Quarmby raising his arms and the stomach butt, or what the sequence was. Later in his evidence, he said that Quarmby and Harper were yelling and shouting, and that as Quarmby approached Oakley with his arms in the air, Oakley just nudged Quarmby, who took a few steps backwards. When cross-examined he said when he first saw Oakley he was standing and not moving, observing what was going on. Quarmby was approaching Oakley and eventually they were face to face. He was reasonably sure that Oakley did not step forward, but thrust his stomach forward with sufficient force to cause Quarmby to stagger backwards a few paces.

100 As already mentioned, in his defence to Quarmby's amended statement of claim, Oakley's plea was that they were both standing approximately 18 inches apart ... in a heated argument ... when [Quarmby] raised his hands and [Oakley] fearing he was about to be hit, stepped closer to [Quarmby] which resulted in [Oakley's] stomach ... coming into contact with [Quarmby's] stomach causing him to step backwards". Unfortunately, notwithstanding this plea, the proposition that Quarmby had raised his hands immediately prior to Oakley belly-butting him was not raised with Quarmby in the course of his evidence. Similarly, it was not raised with Toby. Oakley, Harper and the Kings gave evidence that Quarmby's hands were raised at the time of the belly-butt. This evidence from them was not challenged, but embraced, in the course of their cross examination. I accordingly have no hesitation in accepting it.

101 It being admitted by Oakley that he belly-butted Quarmby, the issue that falls to be determined is whether he did so in self-defence. A matter that I have not found of any assistance one way or the other in relation to this issue is the curious means by which Oakley applied force to Quarmby. To my mind, a belly-butt is a most unusual means of self-defence; however, to my mind, it is an equally unusual means of aggression. That Oakley applied force in this way may in part be because he is a much bigger man than Quarmby. At the time of the incident Oakley weighed between 130 and 150 kg and he was just short of 6 feet tall. Quarmby is somewhat shorter and is considerably less bulky.

102 The Criminal Code, s46, provides that a person is justified in using, in the defence of himself, such force as, in the circumstances as he believes them to be, it is reasonable to use. Accordingly, the issue of whether Oakley was acting in self-defence is to be determined from the standpoint of his belief, not Quarmby's intention when he raised his arms. Nonetheless, an objective consideration of Quarmby's conduct and attitude leading up to this incident may assist the assessment of whether Oakley believed that the circumstances warranted that he act in self-defence.

103 The attendance of Quarmby at the strip, which culminated in the key events under consideration, was not his first visit to the strip that morning. His interest in the strip had been piqued the previous day when he saw Garry Coombe surveying land in the vicinity of the strip. Quarmby spoke to Coombe who told Quarmby he was doing a check survey of Monmouth Street for Harper, as Harper was concerned that the original subdivider, Wallis, had not provided Harper with access to Monmouth Street. In response to Coombe's advice that he was just checking, Quarmby said: "Okay, don't start coming on my ground with your pegs".

104 Early the following morning, Quarmby checked the area where he had seen Coombe and saw some survey pegs. He returned home to get his measuring tape and then went to a shack where Tom Hoyle was staying. Quarmby's son, Toby, was also at Tom Hoyle's shack. Quarmby asked Tom Hoyle to accompany him to the strip, and told his son Toby to keep away and not come and poke his nose in. When cross-examined, Quarmby acknowledged that he had expected the possibility that when he returned to the strip to take measurements, he would attract the attention of Oakley, that Oakley would confront him, and that there could be trouble with Oakley. As to the proposition that he went to the strip to confront Oakley, Quarmby said: "Oh no, I wasn't confronting them I was going to make measurements - if they came out they were confronting me". Quarmby agreed that he did not take Tom Hoyle along to help take measurements: "He was there as a witness".

105 Quarmby had an inflated view about his entitlement to the strip. As I have found, he did not have title to it. Nonetheless, he was just as entitled to be on the strip as Harper and Oakley. I find that when Quarmby returned to the strip that morning, his belief was that he had a superior entitlement to Harper and Oakley over the strip. I also find that Quarmby anticipated that his presence at the strip would provoke a confrontation with Oakley. More significantly, I find that Quarmby's state of mind was that if his presence at the strip attracted attention, he would not diffuse the situation by leaving, but would stand his ground. It was in part for this reason that Quarmby considered it prudent to have his brother-in-law present as a witness. Consistent with this state of mind, when Quarmby was approached by Harper, a confrontation developed and escalated to the point that, notwithstanding that Harper had on several occasions told Quarmby to leave his land, Quarmby had refused to do so. When Harper ultimately pushed Quarmby from his land back onto the strip, Quarmby did not depart, but stepped forward, and when Oakley arrived on the scene, again, Quarmby did not back off. He did not walk away to the west across the Crown land towards Hoyle and his vehicle, or even stay put. I find that Quarmby walked along the strip to meet Oakley. On any objective view, Quarmby was going to confront Oakley, who was similarly intent on confronting Quarmby. Oakley had seen and heard the latter part of Quarmby's clash with Harper, and had seen Quarmby then move towards Oakley, notwithstanding the torrent of abuse that Quarmby was receiving from Oakley. This is the background against which Oakley's belief about what Quarmby had in mind when he raised his arms is to be assessed.

106 I find that immediately prior to Oakley moving forward and belly-butting Quarmby, they had both virtually stopped moving towards each other. They were face-to-face and fairly close. They were arguing heatedly and Oakley was abusing Quarmby. I find that when Quarmby raised his arms, Oakley moved forward about a step and belly-butted Quarmby. I have no direct evidence of what Quarmby had in mind when he raised his arms. As mentioned, Quarmby gave no evidence referable to raising his arms.

107 What then was Oakley to think when Quarmby raised his arms? Quarmby had done nothing to indicate that he was likely to raise his arms as a sign of surrender or non-violence. On balance, I consider that it is likely that in the circumstances known to Oakley, when he saw Quarmby raise his arms, he thought Quarmby was about to strike at him. I am satisfied that it was this movement by Quarmby which prompted the belly-butt. In so finding, I am influenced by my conclusion that it was not until Quarmby raised his arms that Oakley resorted to force, notwithstanding that prior to this Oakley had behaved in a most abusive and aggressive manner towards Quarmby. Accordingly, I am satisfied that, as Oakley asserts, he belly-butted Quarmby in self-defence. I am also satisfied that the amount of force used by Oakley when he belly-butted Quarmby was no more than was sufficient to cause him to take about two steps backwards. I am in no doubt that this amount of force was reasonable in the face of the threat that Oakley perceived he faced.

108 In my approach to the onus and standard of proof to be applied referable to the parties' respective claims, I have kept in mind the Evidence Act 2001, s140, and the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170 - 171 (citations omitted):

"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...'.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading."

109 I have rejected Quarmby's second allegation of assault against Harper, and his allegation of assault against Oakley, on the basis that in each instance the force that was applied was lawfully justified. In a criminal trial it is well-established that the prosecution bears the onus of disproving a lawful excuse for the application of force such as self-defence and defence of premises. The situation is otherwise on a civil trial for trespass to the person. On such a trial the plaintiff bears the onus of establishing the application of force and any consequential injury, but the onus on issues which in broad terms may be said to justify the force applied, lies on the defendant. See for example: McClelland v Symons [1951] VicLawRp 21; [1951] VLR 157, Sholl J at 162 and Pearce v Hallett [1969] SASR 423, Bray CJ at 428, the onus of establishing self-defence is on the defendant; Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218, McHugh J at 310 - 311, the onus of proving consent is on the defendant; McHale v Watson [1964] HCA 64; (1964) 111 CLR 384, Windeyer J at 388, and Venning v Chin (1974) 10 SASR 299, Bray CJ at 312, it is for the defendant to establish that the force was applied without intent and without negligence. However, in Platt v Nutt (1988) 12 NSWLR 231, Kirby P at 235 - 240, set out persuasive reasons for holding that on an action for trespass to the person, the plaintiff retained the onus of proving that the conduct that caused the injury was either intentional or negligent. His Honour's views in this regard were expressed to be preferred by the Court of Appeal in Armellin v Ljubic [2009] ACTCA 22, par[27]. Whatever the situation may be in relation to the onus as to issues of intent and negligence, the law remains clear that as to the issue of self-defence, and by extrapolation, the issue of defence of premises, the onus is on the defendant. See Howard v Wing [2000] TASSC 147, Crawford J (as he then was) par[38], Miller v Sotiropoulos [1997] NSWCA 204, Powell JA, agreed with by Mason P and Meagher JA, Underhill v Sherwell [1997] NSWCA 325, Beazley JA, agreed with by Meagher and Sheller JJA, and Devonport v Wilson [2009] SASC 336, Duggan J at pars[16] - [19].

Quarmby's claims against Harper - amended statement of claim dated 28 July 2006

110 Paragraphs 2 - 4. The causes of action covered by these paragraphs are the three allegations of assault that have been dealt with. They are dismissed.

111 Paragraph 5 details claims on the basis that Quarmby owned the land marked ABJI and BCLK, which he did not, and does not. The claims do not amount to a cause of action. They are dismissed.

112 Paragraphs 6 - 10 are claims of trespass made on the basis that Quarmby owned ABJI. The claims are dismissed.

113 All the claims made by Quarmby against Harper in his amended statement of claim are dismissed.

Quarmby's claim against Oakley - amended statement of claim dated 28 July 2006

114 Paragraphs 2 - 4 and 12 are claims of trespass made on the basis that Quarmby owned the areas of land marked DEPNR and DRNP. He did not own, and does not own this land. The claims are dismissed.

115 Paragraphs 5 - 8. Insofar as these paragraphs plead causes of action, they allege that Oakley assaulted Quarmby and at the time Oakley was trespassing on the post office block in the general vicinity of Y. The claims made in these paragraphs are dismissed.

116 Paragraphs 9 - 11 are claims of trespass made on the basis that Quarmby owned the area of land marked ABJI. These claims are dismissed.

117 Paragraphs 13 and 14. Whilst these paragraphs plead an assault which is alleged to have occurred on 24 March 2002, the particulars of the plea are incapable of substantiating an assault, and no evidence was called in support of the allegation. Such claims as might be derived from these paragraphs are dismissed.

118 All the claims made by Quarmby against Oakley in his amended statement of claim are dismissed.

Claims made in Harper's counterclaim against Quarmby

119 In pars1 - 4, Harper alleges that on 17 January 2002, Quarmby trespassed on Harper's land in the general vicinity of the point marked Z. In the course of my findings in relation to Quarmby's second assault allegation against Harper, I found that this claim of trespass was established. This trespass is the justification for Harper pushing Quarmby. This claim is sustained.

120 By pars5 - 7, Harper alleges that on 17 January 2002 and 8 December 2003, Quarmby trespassed on the portion of the strip marked BCLK. On those dates Harper had no interest in the strip that entitled him to bring a claim for trespass against Quarmby in respect of this conduct. These claims are dismissed.

121 By par9, Harper alleges that on 7 November 2004, Quarmby unlawfully entered the portion of the strip marked BCLK and used a tractor and pile-driver to drive a steel railway iron into the ground at Q. In par10 of his initial defence to this claim, Quarmby admitted that he used a tractor and pile-driver on that date to drive a steel railway iron into the ground at point B, but otherwise denied the allegation. In either event, the point where the iron was driven into the ground was east of the then rectified boundary of Harper's land, which runs through K. Accordingly, this conduct must have involved a trespass by Quarmby, and the claim is sustained.

122 By par10, Harper asserts that on 4 December 2004, Quarmby unlawfully entered the portion of the strip marked BCLK and removed marker pegs on its western boundary. That boundary is between L and K. By par11 of his initial defence to this claim, Quarmby denied the allegation of unlawful entry, but said that he did remove items along the line between L and K. This removal could have been done without Quarmby trespassing on land owned by Harper. In the absence of evidence that it was done on or from land owned by Harper, this claim is dismissed.

123 By par11, Harper asserts that on 6 December 2004, Quarmby unlawfully entered the portion of the strip marked BCLK and removed a galvanised pipe fence post that he had concreted in on the western side of the strip. By par12 of his initial defence to this claim, Quarmby denied the allegation of unlawful entry, but admitted that on that date he removed a post which was along the line of L to K. This could have been done without Quarmby trespassing on land owned by Harper. In the absence of evidence that it was done on or from land owned by Harper, this claim is dismissed.

124 In respect of the two claims of trespass that Harper has established against Quarmby, it is ordered that Quarmby pay Harper damages totalling $400.

125 By par3(b), Oakley alleges that subsequent to 17 January 2002, Quarmby trespassed on the land marked CDML and erected a fence on the line marked CD. By his defence, Quarmby denies that his entry was unlawful, but admits erecting the fence. In the absence of evidence that the fence was erected subsequent to the rectification of the Oakley's title, Oakley had no title to this land. The claim is dismissed.

126 By par3(c), Oakley alleges that on 8 December 2003, Quarmby trespassed on the land marked CDML. As Oakley was not then the owner of this land, this claim cannot be sustained. It is dismissed.

127 Harper seeks an injunction preventing Quarmby from entering the land marked BCLK. Oakley seeks an injunction preventing Quarmby from entering the land marked CDML. I am satisfied that Harper and Oakley are entitled to injunctive relief, but am inclined to the view that the injunctions should be expressed to relate to the land contained in Harper's title as rectified, and the Oakleys' title as rectified. I will hear the parties as to this.