Tresspass To Land Week 2 Flashcards
What are ELEMENTS of a TRESPASS TO LAND action and their AUTHORITIES
1) Title to sue / Exclusive possession - Newington v Windeyer
• Must be in occupation or in possession and have the right to exclude others from entry - Newington v Windeyer
• Tenants have exclusive possession Kelsen v Imperial Tobacco Co
2) Direct unauthorised interference with land (Subsoil or airspace) - Miller v Jackson [1977]
• Absence of express consent and Implied license - Halliday v Nevill
3) Defendant must be at fault.
• Interference was voluntary and intentional or done with a lack of due care - Mchale v Watson (1966)
What are the 4 possible REMEDIES to a TRESPASS TO PERSON action
1) Nominal Damages as trespass is actionable per se - Law v Wright [1935]
2) If damage was suffered – Compensatory Damages - Police v Greaves [1964].
3) If injury to feelings – Aggravated Damages - Watts v Leach [1973]
• Includes mental suffering, disgrace and humiliation - Watts v Leach [1973]
4) If malicious – Possible Exemplary Damages - Coleman v Watson [2007]
What the 5 DEFENSES to a TRESPASS TO PERSON ACTION and their AUTHORITIES
Defendant must prove:
1) They had valid consent to act or enter
Court must consider:
• Was a revocation of consent communicated well and reasonable time allowed for defendant to comply? - TCN v Anning
• Was the act was within the scope of given consent Mchale v Watson (1966)
Defendant must prove:
2) They acted in Self Defense
Court must consider:
• Was the the threat of imminent harm from the defendant?
• Was the force used was reasonable and proportionate to the threat in the circumstances - Criminal Code (1899) s271
Defendant must prove:
3) Defense of another
Court must consider:
• Was there Reasonable grounds to believe assault is about to occur
• If reasonable force was used in response to threat - Criminal Code (1899) s273
Defendant must prove:
4) Provocation
• There was provocation by the plaintiff
• They acted in the heat of the moment and in response to the provocation
Court must consider:
• The force used was not disproportionate to the provocation
• Force used was not intended or likely to cause death or grievous bodily harm
Defendant must prove:
5) Necessity
Court must consider:
• If there was an imminent threat of harm
• If there was a reasonable apparent necessity of taking such action as was taken
NOTE: The imminent harm must not have been the fault of the defendant
What does a valid revocation of consent require?
Revocation of consent be well communicated and reasonable time must be allowed for the person to leave - Cowell v Rosehill Racecourse Co Ltd (1937)
How is FAULT defined in a trespass action?
Interference was voluntary and intentional or done with a lack of due care - Mchale v Watson (1966)
What are the 3 possible REMEDIES to a TRESPASS TO LAND action
If successful in trespass to land – Injunctions are avaliable
• Plaintiff must convince court that damages are not an adequate remedy - Lincoln Hunt Australia Pty Ltd v Willessee (1986)
• Interlocutory injunction – stop until court determination to maintain status quo
• Mandatory - order defendant to do something
• Prohibitory - order defendant to stop doing something
When does continuing trespass occur?
Continuing trespass occurs if the defendant remains on the land or the defendant leaves goods on the land. There is a separate trespass action each day - Konskier v B Goodman Ltd [1928]
