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QLD Does Trespass Invalidate Notice Served?

Discussion in 'Property Law Forum' started by gordonc, 10 September 2016.

  1. gordonc

    gordonc Well-Known Member

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  2. Rod

    Rod Well-Known Member

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    Unlikely it was trespass.
     
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  3. gordonc

    gordonc Well-Known Member

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    Thank you Rod,

    I have found High Court case which says that an arrest is invalid when police were trespassing. As this guy is not even a police officer but a low life process server, I think that the notices served while trespassing would be invalid, especially (in my case) where there were express notices not to trespass and he jumped the fence.

    Halliday v Nevill [1984] HCA 80 @ paragraph 17:

    http://www.austlii.edu.au/au/cases/cth/HCA/1984/80.html
     
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  4. Rod

    Rod Well-Known Member

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    You haven't explained the circumstances around the entry onto your private property by the process server. Only once that is established as trespass would you then consider whether of service is legal or not.

    I do not know if trespass invalidates the serving. Someone with more knowledge than me may be able to answer your question.
     
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  5. gordonc

    gordonc Well-Known Member

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    Thanks Rod,

    I don't need to explain the circumstance of trespass as I already know that it is trespass and the premise of the question was based on that fact.
     
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  6. Tim W

    Tim W Lawyer

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    Am I correct in thinking that you mean the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)?

    And no, the Process Server may not have been trespassing.
    You don't get to evade operation of law (such as being served with a summons, order, or claim)
    by trying to make out that the person serving it is trespassing.
     
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  7. gordonc

    gordonc Well-Known Member

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    Am I correct in thinking that you mean the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)?

    Yes.

    I am interested in what you say as there are a number of High Court authorities that say otherwise.

    The Halliday v Neville for example, I provided above is one at paragraph 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. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it."

    And in the non-event of the above, it is trespass even if you are a police officer.

    In my case there was no implied licence in the first place by the gates being locked with prominent no entry signs, and if somehow there was an implied licence it had been expressly revoked in writing to the trespasser.

    Other authorities include:

    • Plenty v Dillon Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635 (7 March 1991) and
    • Kuru v NSW government Kuru v State of New South Wales [2008] HCA 26 (12 June 2008)

    Both these matters involve the overreaching authority of police officers and substantial 6 figure damages were upheld by the High Court.

    In a case summary on Plenty by; Lawyer - Andrew Goode, Partner, Mellor Olsson
    Plenty To Learn From Trespassing Case

    “If the Courts of common law do not uphold the rights of individuals by granting effective remedies, they invite anarchy, for nothing breeds social disorder as quickly as a sense of injustice which is apt to be generated by the unlawful invasion of a person’s right, particularly when the invader is a government official.” The judges said. The Appellant [Mr Plenty] is entitled to have his right of property vindicated by a substantial award of damages.”

    The other three Judges also provided some interesting quotes from past cases, including the following, from an old English case:

    “The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail – its roof may shake – the wind may blow through it – a storm may enter – the rain may enter – but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.”
     
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  8. gordonc

    gordonc Well-Known Member

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    More from Plenty:

    And in Halliday v. Nevill [1984] HCA 80; (1984) 155 CLR 1, Brennan J. said (at p 10):

    "The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law."
     
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  9. Rod

    Rod Well-Known Member

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    Let's follow through with your assertion it was trespass.

    • You have a pending court action.
    • Plaintiff in case files paperwork saying you have been served.
    • You either:
    1. ignore service and don't go to court and potentially have the case decided without you being present OR
    2. you tell court you were not properly served.
    • Option 2. Court looks at evidence of service, listens to your story and then uses their discretionary powers to accept evidence regardless of how service was performed OR accepts your story and tells Plaintiff re-do service. If I was the plaintiff I'd have another set of papers on hand to serve on you at court. Case is rescheduled OR alternative means of service are done. There are multiple ways service can be completed that don't involve handing you an envelope.
    All you have managed to do is delay the inevitable. Unless there is some unstated reason whereby time is a factor, the only other reason you can have for avoiding service is to frustrate the other party, and as lawyers are officers of the court none here are likely to help you evade a court ordered process. BTW, the process worker is just doing his job.

    I don't disagree with the cases above describing trespass but as far as your court case is concerned the best they might do is help delay it. You MAY have a case against the process server, but don't bet on it. In Kuru v NSW government the State Supreme Court said no trespass, and in the appeal to the High Court, one High Court judge said no trespass. It is potentially risky and costly running a trespass case.
     
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  10. Tim W

    Tim W Lawyer

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    Which are, on their facts, of limited relevance to you.

    For example, Kuru is about police powers more generally,
    and about whether or not new facts (or new offences) arising during the licensed entry
    give rise to a separate power to remain.

    By comparison, the relevance of Plenty depends in part,
    on whether or not this was a "private" notice - from, say, the landlord
    (even if given in accordance with the above act),
    or from "the Crown" - such as if it was a court order.
    Your matter seems to be about a civilian, and a civil matter,
    which, again, tends to make Plenty less relevant.

    It's also helpful to contemplate that an occupier's right to revoke a licence
    does not operate to contradict an authority to enter arising at law from elsewhere
    (because the latter does not involve a licence from the occupier).
    If it did, then a search warrant would never have effect,
    not would a power to enter land held by, say, a firefighter,
    or even a meter reader.

    Nor will it operate to enable contempt of court.
     
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