HIS HONOUR: Mr Shannon sues the State of New South Wales in regard to an alleged trespassed to land committed by two police officers on 19 April 2011. Mr Shannon does not allege any actual damage but seeks ordinary damages, wrongful damages and exemplary damages. Evidence was given by Mr Shannon and the two police officers, Senior Constable Schaeffer and Constable Wylie of the Bulahdelah Police.
I find the following facts proved on the balance of probabilities. The premises in question are a rural property about 2.1 kilometres off the freeway at Coolongolook, New South Wales. Mr Shannon purchased the property in about 1980 but the property was sold to his parents in 1993 to pay for a property settlement for the divorce of his first wife. The premises continue to be owned by his elderly mother who lives in Port Macquarie, his father having passed away.
Mr Shannon is an invalid pensioner who supplements his income by buying and selling cattle and other farm animals but not to any substantial or profitable degree. Mr Shannon has been in continuous occupation of the premises, in effect, since 1980. Mr Shannon subsequently met and married another person who I will refer to as Helen. She had children from a previous relationship but they also then had a mutual child. In December 2010 that relationship soured and Helen moved out to live in their joint matrimonial holiday house in Forster.
Mr Shannon and Helen still remained in contact and, indeed, intimate contact up until some days prior to 14 April 2011 on which date Helen obtained an interim apprehended violence order against Mr Shannon. Whether or not the AVO was justified is not for me to decide but it had an immediate effect. First, the parties no longer communicated verbally. Helen texted Mr Shannon wanting to know his solicitor for the purpose of any property settlement. He texted her that she was not to come onto the property without a court order.
Mr Shannon then consulted with his brother and they erected the signs on the front gate to the property which are depicted in exhibit 1. The only relevant parts of the sign are the words, "No Trespassing". "Warning, admittance to this property is only by appointment or prior invitation," and "Appointments may be requested by correspondence or by telephone." However, a telephone number was not provided on the notice.
Mr Shannon says he put the sign up because he did not want Helen coming around and taking property that did not belong to her. The sign also referred to a High Court case of Plenty v Dillon [1991] HCA 5 as being authority for refusing entry except as arranged. That case found that there was no common law authority permitting the entry by police onto premises just to serve a summons to attend court.
Between 14 April 2011 and 19 April 2011 Helen had been in contact with the police at Bulahdelah in regard to the recovery of her property, bearing in mind that there was in existence an AVO.
Bulahdelah Police Station is a three‑person station which at the time was staffed by Senior Constable Schaeffer and Constables Wylie and Newton. Mr Schaeffer knew Helen and through her had met Mr Shannon because Senior Constable Schaeffer helped run a martial arts club at Coolongolook and Helen had started to bring her children to attend those classes. There were also some social occasions, such as Christmas parties and the like, that were also attended by Mr Shannon which was where he and Constable Schaeffer met.
Bulahdelah is a small village of some 1,200 people with about 2,000 in the outlying districts. Coolongolook is much, much smaller and about 30 minutes north of Bulahdelah on the freeway. The nature of things being as they were the police got to know many people within the local community on a social non‑interventional basis.
As at 19 April Helen was living in Forster which is some distance from Coolongolook. The premises at Coolongolook are relatively isolated. It is not a suburban area. The residence on the property is 250 metres from the front gate and cannot be seen from the road.
Whilst Mr Schaeffer knew Helen I am satisfied that their relationship was purely a social one relative to the martial arts club. I am also satisfied that Mr Schaeffer's attendance at Mr Shannon's premises on 19 April with Constable Wylie was simply because there was no other police officer reasonably available to accompany Constable Wylie on that day. I am satisfied that there was no hidden agenda for his attendance or that either he or Constable Wylie acted other than in a bona fide way.
In any event, arrangements were made for the police to meet Helen at the entrance to the property at about 2.30pm.I am satisfied that prior to that time and thereafter the police had made it clear to Helen that they were not there to assist her but to ensure that there was no breach of the peace or of the terms of the apprehended violence order and that their position was, in effect, a neutral one. Constable Wylie had requested Helen to arrange a suitable time with Mr Shannon for her to be there.
When police arrived at the gate they noticed that the gate was closed but unlocked and they also noted the signage. Present also were Helen and a female friend and two removalists in another vehicle.
Constable Wylie ascertained from Helen that she had not been able to contact Mr Shannon so that Mr Shannon was unaware that she would be attending that day. Constable Wylie said to her, "Well you can go and ask but if he says no, then there's nothing we can do." The officers then headed a cavalcade up the driveway to what has been referred to as the house block, and that general area can be seen in the photograph exhibit 5.
What happened thereafter is in dispute, at least as to detail and not helped by the lack of recollection of those concerned. What does not appear to be in dispute is that as the police drove up Mr Shannon appeared on his front veranda apparently speaking to someone on a telephone. That conversation continued for some minutes. Mr Shannon says that he was talking to his brother to have him as an electronic witness to what was happening. At some stage, the conversation stopped. At some stage, Constable Schaeffer returned to the police vehicle, probably to check to see if there was a property recovery order attached to the AVO, although he cannot remember why he went to the vehicle.
Having regard to Constable Wylie's evidence, I am satisfied that Constable Schaeffer did not go to the vehicle to request a warrant, as suggested by Mr Shannon. In fact, there was no property recovery order in the AVO (exhibit 6). On coming back to where Constable Wylie was talking to Mr Shannon, shortly thereafter the officers instructed the removalists to leave and then Helen and her friend,as requested by Mr Shannon. After those persons had left, Constable Wylie tried to explain why the police were present but they were told to leave by Mr Shannon and they did.
Mr Shannon maintains that he requested the police and the others to leave as soon as they got out of the police van and at least 20 other times during the course of the conversations but, contrary to those requests, the police remained at the premises for about 30 minutes. It seemed clear from his evidence that Mr Shannon suspected that there was some relationship between Helen and Constable Schaeffer. It was also suggested that the police or Helen had cut the padlock and chain off the front gate and taken it away on leaving. I am satisfied that if that occurred, it was not at the behest of, or witnessed by, the officers.
In his evidence, Mr Shannon denied that he had received any calls or missed calls from Helen on 18, 19 and even on 20 April on his mobile phone. Because S/c Schaeffer knew both of the parties and Constable Wylie did not, Schaeffer let Wylie do most of the talking, and that is corroborated by Mr Shannon himself. Constable Wylie also made a detailed COPS entry at 4pm on the same day (exhibit 8), and which is the only contemporaneous record of what occurred.
Mr Shannon gave evidence that at one stage the police came inside the gate of the house block and were standing over him and intimidating him. I do not accept that such an event occurred. Whether or not Mr Shannon felt intimidated by these officers, I cannot say, but they certainly did not present as physically intimidating from their appearance in court.
Unfortunately, other witnesses who may have thrown some light on what occurred were not called. Mr Shannon's brother, Peter Shannon, who was in court during these proceedings and who could have thrown light on any conversations that were being had, was not called, nor was another person said to have been able to overhear these conversations via the telephone, Mr Kevin Lynch, a friend of Mr Shannon. Helen and Helen's friend and the two removalists were also missing in action.
I note that the statement of claim in this matter was filed in July 2014, over three years after the event in question. Given the known problems with recollection and the passage of time, the contemporaneity of exhibit 8 is an important anchor point in determining what happened. I do not accept that the officers were continually asked to leave. I accept that they left when they were asked to go while trying to explain their position to Mr Shannon. I accept that when asked to go, they left as soon as practicable and that altogether they were on the premises for about 15 to 20 minutes.
[2]
LEGAL ISSUES
There are two problem areas in this case. The first is whether or not Mr Shannon had the capacity to sue in trespass. The second is what the officers should have done at the gate when confronted with the sign telling them to keep out.
[3]
RIGHT TO SUE
Trespass to land is an intentional interference with the plaintiff's exclusive possession of the land. The plaintiff must have possession of the land to the exclusion of all others. Exclusive possession is distinct from ownership, which conveys legal title to land but is not necessarily coexistent with possession of it. Possession can be immediate or constructive. Trespass to land is actionable without having to prove damage.
Mr Gollan, for the State, argued that Mr Shannon was only on the land as a licensee from his mothers and as a licensee did not have the requisite capacity to sue in trespass. Mr Woodbury for Mr Shannon conceded that a licensee, as such, cannot sue for trespass. The State relied on passages from the judgment of McHugh J in West Australia v Ward [2002] HCA 28, particularly at [501] ‑ [530]. I note that his Honour's judgment was a minority dissenting judgment in the case and thus its precedential value may not be great. Additionally, the property issues being considered by the High Court in that case were substantially different to the ones in the present case.
The difficulty of accepting McHugh J's view of 'possession' and 'occupation' as legal concepts is particularly evident at [518] and [519] where his Honour is at odds in that regard with the majority judgment in the Wik case [1996] HCA 40. The analogy of a tenant or lodger in a room in a boarding house is, with respect, confusing rather than helpful. His Honour said at [519], "That person may be a tenant or a lodger. But the bare fact of occupation ‑ even sole occupation ‑ of the room will not make the person a tenant." Ward's case involved consideration of the effect of pastoral leases granted by the government over land traditionally occupied by Aboriginal peoples. As far as I can see, the majority judgment in that case did not consider the issues raised by McHugh J in the paragraphs that I have referred to.
In the present case, whilst the land was sold to Mr Shannon's parents in 1993, the only thing that changed vis‑a‑vis his possession and occupation of the land was that the legal title vested in someone else. That someone else was not a stranger at arm's length but his parents who, I infer from the circumstances, allowed him some sort of permissive occupancy of the land indefinitely thereafter. That situation pertained until the date in question and continues to the present day. Mr Shannon is responsible for the maintenance of the property and runs cattle and other animals on it commercially.
When Mr Shannon married Helen and she commenced to live on the property, her situation was substantially different to that of her husband. She was not entering into a relationship that would have given her any legal rights over title to the land. Had the marriage lasted, she may well have had rights exercisable under the Family Provision Act or under the Family Law Act or the like in the event of the death of Mr Shannon's mother. As it is, she and Mr Shannon apparently purchased a property in Forster in joint names which was a property taken into account in subsequent divorce proceedings but the property at Coolongolook was not and on that property Mr Shannon continued to reside.
It is my view, that at the time of this incident Mr Shannon had, as a matter of fact and practicality, exclusive right to possess the property, albeit the legal title was in his mother's name. That was a right he could exercise as against the world at large. Whilst his mother may also have had such a right she was not in possession at the time, nor was she capable of exercising any control. It is unhelpful to try and categorise Mr Shannon's position in terms of a lease or licence or permissive occupancy as those terms are generally understood at law. Mr Shannon was in de facto possession and control of the land and had been since 1993 and earlier. Whilst his mother had a right to be on the land that, was a right she did not exercise, in effect passing it over to her son to control.
In the case of Newington v Windeyer (1985) 3 NSWLR 555, McHugh JA, as he then was, said, at 563, that:
"A person who is in possession of land adverse to the true owner has a legal interest in the land [..which..] enables him to exclude from the land any person who does not have a better title."
The authorities referred to by Smart AJ in Markisic v Department of Community Services &Ors [2005] NSWSC 1373 at [130] ‑ [136] also support the above proposition. In particular, at para 133, the following appears:
"'Who may sue for trespass to land? The key to the tort is to be found in its purpose. That purpose is the protection of quiet possession of land.'"
The legal treatise of Clerk &Lindsell on Torts is cited. The quote continues:
"'...a person in possession can sue although he neither is the owner nor derives title from the owner, and indeed may be in possession adverse to the owner.
Possession means generally the occupation or physical control of land. The degree of physical control necessary to constitute possession may vary from one case to another, for 'by possession is meant possession of that character of which the thing is capable'.'"
I find that Mr Shannon was, as a matter of fact and practicality, the only person who could be approached for permission to enter the land and as such I am more than satisfied that he has standing to sue in trespass.
[4]
PERMISSION TO ENTER
In TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 the Court held that not locking a gate did not imply a licence to enter and film. Further, in Halliday v Nevill [1984] HCA 80, the Court said, at [6]:
"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."
The State relies on both the common law right of entry to prevent a breach of the peace as well as the statutory right set out in s 9 of the Law Enforcement (Powers and Responsibilities) Act ("LEPRA"). Section 4 of LEPRA provides that unless otherwise provided or by implication the Act does not limit the common law as to constables obligations, and in particular, the common law powers of a constable to deal with breaches of the peace.
Section 9 of LEPRA is headed "Powers to enter in emergencies," and, relevantly, provides that a police officer may enter premises if it is believed on reasonable grounds that a breach of the peace is likely to be committed and it is necessary to enter the premises immediately to prevent a breach of the peace. There has to be then a belief based on reasonable grounds plus a necessity to enter immediately for s 9 to be operative.
It is important to look at what the evidence is at that point of time when the trespass occurred because what happened thereafter was merely a continuation of the tort.
Constable Schaeffer said that he thought the sign was there to prevent entry to the premises by Helen, given that there was a current AVO. Constable Wylie thought that the sign related to coal seam gas issues which were a prevalent concern to local landowners in the area at the time.
Mr Woodbury argues, and, in my view, correctly, that an issue of convenience cannot translate into a licence to enter premises against specific notice. Further, no matter what, or to whom, the officers thought the signs on the gate applied, the meaning of the ordinary language used was such as to indicate that entry by all visitors was forbidden unless authorised.(cfHalliday v Nevill) .
At the point of entry to Mr Shannon's property, the officers knew that Helen had been unable to contact Mr Shannon for permission to be there. No attempt was made at that point by police to contact Mr Shannon, and whilst it was correct to advise Helen that if asked to leave they would all have to leave, that did not overcome the injunction specified in the notice on the gate that no‑one was to enter without permission, unless it had been previously obtained.
It may be the case the Mr Shannon was being obstructive about being contactable by Helen, and it may be that Helen had travelled a substantial distance from Forster to the premises together with some removalists, but neither of those conditions could, in any way, overcome the signed express refusal of entry to anyone unless prior permission had been obtained.
There was some suggestion that Helen might have had a right to enter because at that stage she and Mr Shannon were still married and she had been living on the property at least up until December 2010. I doubt that she had such a right. She must have known the property belonged to Mr Shannon's mother and she had voluntarily left the marital situation four months earlier to reside elsewhere. Indeed, one wonders why any possessions that she retained at the Coolongolook property had not already been removed in the intervening period when the couple's relationship was more amicable. What she should have done in the AVO proceedings was to obtain a property recovery order, but, unfortunately, that did not occur.
At the time of entry by the officers, I am satisfied that whilst a breach of the peace might have occurred if Helen had gone into the premises alone, there was no immediate necessity to enter the premises to prevent a breach of the peace in the circumstances, nor was there any common law justification or implied licence for them to enter. The fact that there was an interim AVO in place is, in my view, irrelevant. Neither it, nor the hearsay information it contained, could operate to provide a licence to enter the premises over a specific prohibition.
As to what constitutes a breach of the peace, it is perhaps sufficient to say that it involves any act that causes or may lead to violence or the fear of violence by one person against another or to the public generally.
It may be argued that it was reasonable for the officers to go onto the premises because if Helen had gone on by herself then there was the likelihood of an altercation of some kind. But that did not occur. The officers entered at the head of a convoy, as it were, without waiting to see what actually happened. There was no reason why they could not have waited at the gate.
Another difficulty is that even with the interim AVO in place, Helen had, in my view, no right to go onto the premises in the face of the clear notice. To do so would be the civil wrong of trespass on her part, and if the situation subsequently deteriorated it would have been because she had gone onto the premises unlawfully under civil law to begin with.
I am satisfied on the balance of probabilities that Mr Shannon has established the tort of trespass.
[5]
DAMAGES
I have been referred to a number of District Court cases in regard to the issue of damages. They are: McCarthy v NSW [2013] NSWDC 247 and Curren&Ors v Walsh &Ors (Balla DCJ, December 2002, 25277/97, unreported).
The parties' submissions as to damages are substantially variant. The State suggest $3,000 to $5,000 would be an appropriate compensation. Mr Shannon suggests, as I understand Mr Woodbury's submissions, a figure of $40,000 to $50,000, although he also said that this was not a case for large damages.
On the issue of damages I am satisfied of the following:
1. there was no mala fides on the part of the police officers;
2. the officers left as soon as they were asked to go;
3. the officers did not stand over, threaten or intimidate Mr Shannon. I accept their evidence, particularly Constable Wylie's, over that of Mr Shannon who, in my view, had a number of credit issues as to what actually occurred at the house;
4. the officers were instrumental in getting Helen and the removalists to leave;
5. the incident lasted about 20 minutes;
6. the statement of claim was not issued until over three years after the event which, in my view, is indicative of the degree to which Mr Shannon was affected by what happened on 19 April 2011;
7. I do not accept that Mr Shannon was humiliated or suffered damage to his reputation;
8. I do not accept that the officers' actions involved conscious wrongdoing and showed contumelious disregard of Mr Shannon's rights and feelings;
9. I do not accept that their actions were reprehensible, high handed, outrageous or insulting;
10. I accept that there is a need for police officers to be properly trained in this vexed area of entry onto private property.
In Plenty v Dillon [1991] HCA 5, Mason CJ, Brennan and Toohey JJ, said, in regard to damages, at [11]:
"But this is an action in trespass not in case and the plaintiff is entitled to some damages in vindication of his right to exclude the defendants from his farm."
In the judgment of Gaudron and McHugh JJ, at [24], they said:
"Once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages. In addition, we would unhesitatingly reject the suggestion that this trespass was of a trifling nature. The first and second respondents deliberately entered the appellant's land against his express wish. True it is that the entry itself caused no damage to the appellant's land. But the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff's right to the exclusive use and occupation of his or her land. Although the first and second respondents were acting honestly in the supposed execution of their duty, their entry was attended by circumstances of aggravation."
The circumstances of aggravation in the case of Plenty v Dillon was that the officers had previously been to the premises and had been that they were not welcome to come onto the premises and, yet, returned later to serve a fresh summons and a notice to appear. That is not the case here. The officers entered as a result of a misunderstanding and left, I am satisfied, within a reasonable time of being asked to go. They did not, I am satisfied, linger on against the wishes of Mr Shannon.
When one looks at the whole of the circumstances at what actually occurred and the surrounding circumstances leading up to that event, I am not satisfied that Mr Shannon has suffered significant damage by virtue of the trespass to his land by the officers. However, I would accept that the trespass by Helen, who is not a party to these proceedings, may have been a more aggravating circumstance to him.
The facts and circumstances of the present case are, in my view, far less serious than those referred to in the cases of McCarthy and of Curren. In the far more serious case of Adams v Kennedy [2000] NSWCA 152, the Court said "any damages awarded must not be out of all proportion in the circumstances".
Mr Shannon claims damages and exemplary damages, and has abandoned the claim for aggravated damages.
Having regard to the above, the appropriate damages, in my view, are the sum of $3,000 by way of general damages, and $5,000 by way of exemplary damages.
There will therefore be a verdict and judgment for the plaintiff in the sum of $8,000. The defendant is to pay the plaintiff's costs.
I grant liberty to either party to apply on seven days notice if any other costs order is sought.
[6]
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Decision last updated: 12 May 2015