Plenty v Dillion (1991) 171 CLR 635

4. The starting point is the judgment of Lord Camden L.C.J. in Entick v. Carrington (1765) 19 St Tr 1029, at p 1066:

“By the laws of England, every invasion of private property, be it ever so minute, is a trespass. 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 shew by way of justification, that some positive law has empowered or excused him.”

And in Halliday v. Nevill (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.”

5. The proposition that any person who “set(s) his foot upon my ground without my licence … is liable to an action” in trespass is qualified by exceptions both at common law and by statute. The first ground relied on to authorize or excuse the entry of Constables Dillon and Will on Mr Plenty’s farm on the occasion of the attempted service of the fresh summons was the common law rule known as the third rule in Semayne’s Case (1604) 5 Co Rep 91a, at p 91b (77 ER 194, at p 195) which reads:

” In all cases when the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the (King)’s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors”.

In Blake v. Beech (1876) 1 Ex D 320, at p 330, Field J. said:

“The office of a summons is to inform the party to be charged of the offence which he has to meet, and when he has to meet it, and to require his attendance; and the current of modern authority is to shew that if parties are before a magistrate who has jurisdiction as to time and place, no summons or information is necessary”.

(See also Paley on Summary Convictions, 9th ed. (1926), p 212.) The coercive nature of a warrant of arrest has long been contrasted with the non-coercive nature of a summons. Burn, The Justice of the Peace, and Parish Officer, 17th ed. (1793), vol.IV, p 285, comments:

“In other cases, where it is left discretionary in the justices, it seemeth most agreeable to the mildness of our laws to put the party to no more inconvenience than needs must; and therefore where the case will bear it, a summons seems more apposite than a compulsory process.”


24. In his judgment, the learned trial judge said that, even if a trespass had occurred, it was “of such a trifling nature as not to found (sic) in damages”. However, 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. They entered as police officers with all the power of the State behind them, knowing that their entry was against the wish of the appellant and in circumstances likely to cause him distress. It is not to the point that the appellant was unco-operative or even unreasonable. The first and second respondents had no right to enter his land. The appellant was entitled to resist their entry. If the occupier of property has a right not to be unlawfully invaded, then, as Mr Geoffrey Samuel has pointed out in another context, the “right must be supported by an effective sanction otherwise the term will be just meaningless rhetoric”: “The Right Approach?” (1980) 96 Law Quarterly Review 12, at p 14, cited by Lord Edmund-Davies in Morris v. Beardmore, at p 461. 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 the sense of injustice which is apt to be generated by the unlawful invasion of a person’s rights, particularly when the invader is a government official. The appellant is entitled to have his right of property vindicated by a substantial award of damages.

Posted by PMA admin