Implied Licence
38 The Appellant submitted that the entry of its employees occurred pursuant to an implied licence to enter. It relied in this regard on two alternatives:
· The use of the land as a tyre dump and/or as a racing track necessarily involved permission for members of the public to enter.
· Any member of the public has a right to enter a property in an attempt to lawfully communicate with the occupier, specifically to approach the occupier to ask if he or she will give an interview.
39 In rejecting this submission, her Honour made a finding that there were signs on the gate prohibiting entry. The Appellant submitted, correctly, that there was no evidence about the content of the signs. The Respondent's submission that her Honour was entitled to draw an inference to that effect should be rejected. There was no proper basis for such an inference. The possible content of the signs cannot be used to rebut the Appellant's case that there was an implied licence.
40 The Respondent had unlocked the gate at the time the truck arrived. He did not lock it after the truck entered. If the gate had been locked then the Appellant could not have contended for an implied licence. The fact that the gate was unlocked does not, however, of itself, establish what, if any, licence to enter may be implied.
41 In the absence of evidence as to the content of the signs, some form of implied licence did exist. The question is whether or not entry occurred pursuant to any such licence. In this regard the purpose or purposes of entry is a material consideration.
42 I adopt the reasoning of Brennan and Deane JJ in Barker v The Queen as quoted above and pose the issue in terms of whether "as a matter of substance and fact", the entry in the present case was beyond the scope of any implied licence to enter. In my view, in the present case, the Appellant fails on the facts in this regard.
43 Whatever may have been the scope of a permission for entry with respect to the conduct of the used tyre business or the conduct of a race track, nothing the Appellant did was referable to any such purpose. If there was an implied licence to enter for any such purpose, the Appellant did not avail itself of such a licence.
44 Some of the submissions made by the Appellant suggest that there was an implied licence of such breadth as to justify all that the Appellant did. This proposition was never put in terms. For the reasons given below, there was no such licence.
45 Mr B McClintock SC, who appeared for the Appellant, also relied on the right to enter the property for the purpose of approaching the occupier in order to ask him whether he would give an interview. He submitted that the fact that such a purpose was accompanied by another purpose, i.e. filming an interview with the occupier and other matter, does not convert the Appellant into a trespasser, as if it did not have a legitimate purpose at all. This submission depends on whether the Appellant did in fact have a purpose of seeking permission to film. I discuss this further below.
46 The Appellant's broadest submission invoked an implied licence to be inferred from the mere fact of an open gate. The Appellant's submission suggested, but did not expressly state, that there was little, if any, limit on what could be done after entry on such property, unless a limit was expressly imposed. In this case, in the absence of evidence about the content of the signs, it submitted that there was no evidence of any limit.
47 The broadcast on "A Current Affair" consisted of at least three separate segments filmed on the property. First, a segment with Ms Brown standing in front of a large volume of tyres, describing the circumstances of the property. (She is wearing the same clothes as in the next two segments.) Second, the conversation with the Respondent. Third, an interview conducted with the driver of the truck who had delivered tyres to the premises on 10 November and on earlier occasions. The overall context of surveillance and participation in the official raid was such that filming of all of these matters was plainly part of the purpose of entry.
48 The Appellant did not expressly submit in terms that entry for all or any of these purposes was within any implied licence. Nevertheless, the general submission suggested that this was so. This submission should be rejected.
49 It is sufficient to refer again to the passages from Coco v The Queen and Plenty v Dillon, which I have quoted above, to conclude that an implied licence of such breadth, arising from the failure to lock a gate, is not consistent with the history of the tort of trespass to land and the important interests which it continues to protect.
50 As emphasised in Halliday v Nevill, the existence of an implied licence is largely a question of fact. Nevertheless, as Young J said in Lincoln Hunt Australia Pty Ltd v Willesee at 460:
"… most implied invitations will be held to be for limited purposes and in such cases an entry unrelated to those purposes will be a trespass right from the moment of entry."
51 I would add that such "limited purposes" will generally only confer permission to enter "exclusively for the particular purpose", to use the terminology of Brennan and Deane JJ in Barker v The Queen at 365 for the resolution of the issue of multiple purposes.
52 The protection of privacy interests has long been recognised as a social value protected by the tort of trespass. Privacy is specifically referred to as such an objective in the joint judgment of Gaudron and McHugh JJ in Plenty v Dillon at 647, which I have quoted above. Their Honours refer with approval to the judgment of Lord Scarman in Morris v Beardmore [1981] AC 446 where his Lordship said at 463-464, employing terminology also used in the joint judgment of the High Court in Coco v The Queen:
"… it is not the task of judges, exercising their ingenuity in the field of implication, to go further in the invasion of fundamental rights and liberties than Parliament has expressly authorised … I have deliberately used an adjective which has an unfamiliar ring in the ears of common lawyers. I have described the right of privacy as 'fundamental'. I do so for two reasons. First, it is apt to describe the importance attached by the common law to the privacy of the home. It is still true, as was said by Lord Camden CJ in Entick v Carrington (1765) 19 State Tr. 1029, 1066, that:
'No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him.'
Secondly, the right enjoys the protection of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), which the United Kingdom has ratified and under which the United Kingdom permits to those within its jurisdiction the individual right of petition: see articles 8 and 25."
53 The traditional maxim that "an Englishman's home is his castle" is in large measure based on privacy considerations. As Lord Ellenborough said in Burdett v Abbot (1811) 14 East 1 at 155; 104 ER 501 at 560:
"the law values the private repose and security of every man in his own house, which it considers as his castle …"
54 The maxim is most frequently traced back to Semayne's Case (1604) 5 Co Rep 91a at 91b; 77 ER 194 at 195. However, it is of older vintage and was in part based on the family home as a spiritual and family locus. (See Barbara H Rosenwein, Negotiating Space: Power, Restraint and Privileges of Immunity in Early Medieval Europe, Cornell University Press, Ithaca (1999) esp at 202-207. See also David Feldman, The Law Relating to Entry, Search and Seizure, Butterworths, London (1986) esp at 7-11.)
55 The maxim does not, however, apply in the context of premises which, relevantly, constitute a place of business, as distinct from a dwelling. (See the detailed consideration of the maxim in Nevill v Halliday [1983] 2 VR 553 at 561-568 per Brooking J.)
56 As Gleeson CJ has indicated, the fact that something occurs on "private property", does not make it, relevantly, a "private act". (See ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 76 ALJR 1 at [35].) His Honour went on to say:
"[42] … An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combined to afford …
[43] … the foundation of much of what is protected, where rights of privacy, as distinct from rights of property, are acknowledged, is human dignity. This may be incongruous when applied to a corporation. The outcome of the present case would not be materially different if the respondent were an individual or a partnership, rather than a corporation. The problem for the respondent is that the activities secretly observed and filmed were not relevantly private. Of course, the premises on which those activities took place were private in a proprietorial sense. And, by virtue of its proprietary right to exclusive possession of the premises, the respondent had the capacity (subject to the possibility of trespass or other surveillance) to grant or refuse permission to anyone who wanted to observe, and record, its operations. The same can be said of any landowner, but it does not make everything that the owner does on the land a private act. Nor does an act become private simply because the owner of land would prefer that it were unobserved. The reasons for such preference might be personal, or financial. They might be good or bad. An owner of land does not have to justify refusal of entry to a member of the public, or of the press. The right to choose who may enter, and who will be excluded, is an aspect of ownership. It may mean that a person who enters without permission is a trespasser; but that does not mean that every activity observed by the trespasser is private."
57 In the present case nothing turned on the fact that the Respondent lived on the premises in a caravan. There is no suggestion of an invasion of his privacy insofar as he used the land as a dwelling. The issues in the present case have to be assessed on the basis that a trespass, if any, occurred in relation to the conduct of business activities on the premises. Privacy considerations are, accordingly, attenuated, but not irrelevant.
58 Persons conducting business on private property are entitled to do so without others intruding for purposes unrelated to the business activities they are conducting. This includes those who wish to enter with a view to publicly exposing aspects of their business.
59 Although the law has been particularly protective of persons from intrusion on the part of the organs of government, it should be no less protective in the case of other powerful sections of society of which, in contemporary conditions, the mass media is one. Indeed, as long ago as 1883 Sir James Martin, Chief Justice of this Court - himself a former editor of the original Australian newspaper and a former Premier - said, in the context of a defamation action:
"… the freedom of the press is valuable, but there is a limit beyond which it is necessary for the sake of the public interests, that this power of examination and comment should not be allowed to go. There are various kinds of tyrannies, but there is no tyranny which would be more disastrous or intolerable than the tyranny of an unbridled press over which there was no control." ( Anderson v Fairfax (1883) 4 NSWR 183 at 216-217)
60 In a case in which a television broadcaster had intruded onto property, on which a business was conducted, for the purpose of exposing what the journalists believed to be iniquity, (Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169), Williams J said at 173-174:
"Thus the judges jealously protect the rights of all citizens against oppressive conduct by the State, and do so by application of the principles of the common law without the necessity for any statute defining the rights of the individual. Those rights which in the past have withstood the challenge of unwarranted intervention by the State will also prevail in the courts against the unwarranted intrusion of the media. It would be unthinkable that under the guise of freedom of speech the media (particularly in a situation where competition for ratings was a motivating factor) could trample on the rights of citizens which were inviolable as against the State. If a police officer could not without more enter a home or office, armed with a video camera, to search for evidence of the commission of some offence, what law could possibly justify and protect the conduct of a news reporter in doing just that. If the courts stood by and permitted such conduct (particularly where purported investigation of offences was involved) then they would be abdicating their role as the institution in society according to whose rules questions of guilt or innocence were to be determined, and permitting the replacement thereof by trial by media."
61 The media have considerable power in contemporary society. That power is enhanced by the capacity for intrusion afforded by contemporary technology. That power can be wielded for good or ill. To establish, for the first time, a wide ranging right to enter property to pursue the truth, let alone the quite different requirements of a "good story", would be to trust those who wield power to a degree that centuries of experience with searches and seizures establishes to be unwise.
62 In the present circumstances, in my opinion, there was no implied licence to film any, let alone all, of the three segments broadcast on "A Current Affair".
63 An alternative basis for reaching this conclusion is suggested in the judgment of Eichelbaum CJ in TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 in which the Chief Justice said at 732:
"Regarding the TV3 reporter, Mr Allan submitted that in accordance with the principles in Robson v Hallett [1967] 2 QB 939 (a precedent followed in a series of New Zealand cases) she was not a trespasser. The reporter was entitled, he said, to go on to the complainant's property to ascertain if she was prepared to be interviewed. The authority's findings of fact were that Mrs S knew she was a reporter, but did not know the conversation was being recorded and filmed from a secret location.
My view is that the reporter's position did not fall within the principles in Robson v Hallett. In that case it was held that in general the occupier of a dwelling gave an implied licence to any member of the public on lawful business to come through the gate and knock on the door of the house. While media reporters have no greater rights than the general public they do not have any less and usually a reporter would be entitled to go to a door to ascertain whether the occupier was willing to be interviewed … However, the concept of an implied licence raises the question of the purposes for which a licence may be implied. See, for example, Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, 460. Such a licence has been expressed as limited to lawful purposes, but it does not follow that only an entry for unlawful purposes will be outside the terms of the licence. Purposes for which it is known or understood that the occupier would not give consent will be outside the ambit of the implication.
Here no doubt the purpose of the visit was to obtain an interview if that could be achieved; but if it could not TV3 was ready to film whatever encounter ensued and record such statements as the occupier might make, without her being aware of it. The occupier would not have agreed to the reporter coming on to the premises for that purpose, and the inference is open that TV3 was aware of that. In the circumstances the reporter's entry did not fall within the terms of the normal implied licence, and for purposes of action in tort was a trespass from the outset."
64 Randerson and Neazor JJ referred to TV3 Network Services case in Attorney-General v Hewitt [2000] 2 NZLR 110 at 118 and described it as a case "… where entry was made for a purpose which it was known or understood the occupier would not give consent".
65 Mr B McClintock SC, submitted that there was no basis in the present case to draw the inference drawn by Eichelbaum CJ in TV3 Network Services, that the television reporter knew or understood that consent for a general interview would not be granted. This submission no doubt extended to the whole of the material filmed on the day i.e. Ms Brown in front of the stacks of tyres and interviewing the truck driver.
66 Whether an inference of the character drawn by Eichelbaum CJ in TV3 Network Services should be drawn depends on the whole of the circumstances. In the present case, those circumstances included, at the very least, an official raid designed to establish the commission of offences. Police or other officials, with authority to enter the property, who permit media to accompany them when executing search warrants, may cause significant problems for the administration of justice. (See e.g. R v Marylebone Magistrates Court ex parte Amdrell Ltd [1998] EWHC Admin 322; [1999] Env LR D11; Wilson v Layne (1999) 526 US 603.)
67 Suffice it to say, for present purposes, that such a context would lead, in the normal case, to an understanding on the part of the media that the person who is the subject of a regulatory raid would not give consent to filming. There may be exceptional cases in which such consent would be forthcoming but, in the absence of any basis for believing that the instant case might be such, the law should act on the basis of the normal case. There was no evidence to prevent the inference in the present case, that the Appellant understood at the time of entry that a request for consent to record each of the three matters recorded would have been denied. To overcome that inference, the Appellant would have had to call evidence, which it did not.
68 Accordingly, the general licence for which the Appellant contended, even if, contrary to the view I have expressed above, it constituted a "lawful purpose", would not avail the Appellant in the present case.
69 Alternatively, the Appellant relied on an implied permission to enter in order to ask the occupier for permission to film. Such a licence will be implied. (See Robson v Hallett [1967] 2 QB 939; Halliday v Nevill; and TV3 Network Services Ltd at 723.) The issues in such a case, to repeat part of the extract from the judgment of Brennan and Deane JJ in Barker v The Queen quoted above, are:
"… identification of the limits of the actual permission, the definition of the actual entry and the determination of whether that entry was within the scope of that permission."
70 Mr McClintock submitted that Ms Brown did request permission to film. Indeed, he submitted that her "first contact" with the Respondent was in the form of a request for permission. If there had been any such request, then it would be open to infer that entry occurred, in part, for that purpose. However, I do not see any evidence of any request for permission, let alone that the "first contact" was of that character.
71 Mr McClintock appears to rely in this regard on the evidence in chief given by the Respondent as to his recollection of the commencement of his conversation with Ms Brown. In his evidence in chief he gave two versions of this conversation. The first is recorded in the transcript in the following way:
"We're from A Current Affair … we're here to do a story … (not transcribable) … the tyres."
72 It appears, however, that her Honour did take a note of the passage that the court reporter could not transcribe, because in her judgment she recounts the conversation in the following way:
"We are from A Current Affair, we are here to do a story relative to the tyres."
73 A few questions later the Respondent repeated the nature of this conversation in the following terms:
"I'm Tara Brown from A Current Affair and we want to do a story on the tyres."
74 The conversation of which this is the Appellant's recollection is, it appears, fully recorded on the video recording. That videotape shows Ms Brown answering questions from the Respondent. On the videotape, nothing appears relating to "a story on the tyres". Perhaps it was part of the recording which had a voice over. I am not satisfied that anything of this character was said at all.
75 Even if something like this had been said, it could not have been construed as a request for permission. The Respondent's version of the conversation, "We are here to do a story" appears to me to be an assertion, rather than any kind of request. There may be circumstances in which such terminology can be construed as a request for permission. In the present circumstances it cannot be so construed. The cameras were rolling at the very point of time that it is alleged something of this character had been said. Furthermore, the entirety of the context in which the Appellant had been preparing the programme for several weeks; the close involvement with the regulatory officials conducting the investigation; the entry in the context of an official raid and the actual content of the broadcast programme, strongly suggest that no request for permission was in contemplation. In the absence of any evidence on the part of the Appellant, the proper inference is that its employees did not intend to ask permission.
76 In my opinion, the Appellant cannot rely on an implied licence to approach the Respondent for the purpose of requesting his authority to film or conduct an interview on the premises.
77 The case most closely analogous to the present case is the decision in Brunner v Williams [1975] Crim LR 250. (More fully reported in 73 Knights LGR 266 esp at 272-273.) In that case an inspector was acknowledged to have a right to approach the front door to seek permission to check a coal delivery. He did not exercise any such right. He went down a side passage to the rear of the premises to ask those delivering the sacks of coal not to unload them, because that may have made subsequent inspection futile. He was found to be a trespasser.
78 In my opinion, the same result should occur in the present case. The implied licence was limited to a particular purpose, namely, to enter the land to request permission to film. The Appellant did not enter the land for that purpose, or for purposes which included that purpose. It entered the land for the purposes of filming the raid, recording the Respondent's use of the land, conducting such interviews as it could with a view to broadcasting a programme. It was wholly outside any implied licence.