Principality of Range View - Trespass

PLENTY v. DILLON (1991) 171 CLR 635 F.C. 91/004

Trespass

COURT
High Court of Australia
Mason C.J.(1), Brennan(1), Toohey(1), Gaudron(2) and McHugh(2) JJ.
HRNG
Adelaide, 1990, August 20, 21; 1991, March 7. #DATE 7:3:1991

JUDGE1
MASON C.J., BRENNAN AND TOOHEY JJ.
Mr Plenty is the owner and occupier of a
small farm at Napperby near Port Pirie, South Australia. He and Mrs Plenty are
the parents of a girl who, at the time of the events giving rise to the
present litigation, was aged 14 years. An allegation was made in July 1978
that the child had committed an offence and, pursuant to ss.8 and 15 of the
Juvenile Courts Act 1971-1975 (S.A.), a complaint was laid against the child
alleging that she was in need of care and control. That is the procedure
which the Juvenile Courts Act prescribes for dealing with a child against whom
an allegation of an offence is made. When such a complaint is laid a justice
is authorized to issue a summons to the child to appear before a Juvenile
Court: s.61. A justice issued a summons to the child to appear. The service
of that summons was governed by s.27 of the Justices Act 1921-1975 (S.A.).
Section 27 (as it then stood) provided:
" Subject to the provisions of this or any other enactment
specially applicable to the particular case, any summons or
notice required or authorized by this Act to be served upon
any person may be served upon such person by -
(a) delivering the same to him personally; or
(b) leaving the same for him at his last or most usual
place of abode or of business with some other
person, apparently an inmate thereof or employed
thereat, and apparently not less than sixteen
years of age:
Provided that any court or justice before whom the matter
comes may refuse to act upon any non-personal service as
aforesaid, and may require the summons or notice to be
re-served, if it or he is of opinion that there is a
reasonable probability -
I. that the summons or notice has not come to the
knowledge of the person so served; and
II. that such person would have complied with or acted
upon such summons or notice if it had come to his
knowledge."

2. On 6 and 31 October 1978 the police attempted to serve the summons on the
child. On the latter occasion the police effected non-personal service of the
summons by leaving it with her father. The child did not appear. Instead of
ordering reservice of the summons, the magistrate ordered that a fresh summons
be issued. In addition, notices were issued to Mr and Mrs Plenty, pursuant to
s.29 of the Juvenile Courts Act, ordering them to attend at the hearing of the
complaint against their child.

3. Constable Dillon, accompanied by Constable Will, went to Mr Plenty's farm
in order to serve the fresh summons either personally on the child or, by
non-personal service, on the father. Their entry onto the farm for this
purpose was the occasion of an alleged trespass for which Mr Plenty brought
the present action. He joined as defendants Constables Dillon and Will, their
senior officer and the State of South Australia. It is unnecessary to trace
the full history of the matter except to say that, in the view taken of the
facts by a majority of the Full Court of the Supreme Court of South Australia,
Mr Plenty had expressly revoked any implied consent given to any police
constable to enter upon his farm in order to serve the summons or any other
document relating to the matter concerning his child. The appeal to the Full
Court proceeded on that footing and the defendants were content to argue the
present appeal on the same footing. Thus the issue for determination is
simply whether a police officer who is charged with the duty of serving a
summons is authorized, without the consent of the person in possession or
entitled to possession of land and without any implied leave or licence, to go
upon the land in order to serve the summons.

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 see Great Central Railway Co. v. Bates (1921) 3 KB 578, at p 582; Morris
v. Beardmore (1981) AC 446, at p 464. The principle applies to entry by
persons purporting to act with the authority of the Crown as well as to entry
by other persons. As Lord Denning M.R. said in Southam v. Smout (1964) 1 QB
308, at p 320, adopting a quotation from the Earl of Chatham:
"'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 - the 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.' So be it - unless he has justification
by law."
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".

6. The scope of the third rule in Semayne's Case is stated in Tomlins'
Law-Dictionary, 4th ed. (1835), vol.I, tit. Execution, III. 3:
"It is laid down as a general rule in our books, that the
sheriff, in executing any judicial writ, cannot break open
the door of a dwelling-house; this privilege, which the law
allows to a man's habitation, arises from the great regard
the law has to every man's safety and quiet, and therefore
protects them from the inconveniences which must
necessarily attend an unlimited power in the sheriff and
his officers in this respect; hence, every man's house is
called his castle. 5 Co 91: 3 Inst 162: Moor, 668: Yelv.
28: Cro Eliz 908: Dalt Shar 350.
Yet in favour of executions, which are the life of the
law, and especially in cases of great necessity, or where
the safety of the king and commonwealth are concerned, this
general case has the following exceptions:
1st. That whenever the process is at the suit of the
king, the sheriff or his officer may, after request to have
the door opened, and refusal, break and enter the house
to do execution, either on the party's goods, or take his
body, as the case shall be. 5 Co 91 b."
The third rule in Semayne's Case provides justification for more than a mere
entry onto land; in terms it relates to breaking into a dwelling-house. The
justification afforded by the rule is needed only when the alleged trespass is
of that kind: see, for example, Penton v. Brown (1664) 1 Keb 698 (83 ER 193);
Southam v. Smout, at p 321 et seq. Of course, justification for breaking into
a dwelling is justification for entering on the land on which the dwelling
stands. However, the third rule in Semayne's Case affords justification for an
entry, whether by breaking into a dwelling-house or not, only when the purpose
of the person making the entry is either "to arrest ... or to do other
execution of the (King)'s process". It is not suggested that the defendant
police officers proposed to arrest Mr Plenty's daughter. They had no authority
to do so. The magistrate had power to issue a warrant for her arrest
(Juvenile Courts Act, s.61(2)), but he did not do so. So the question is
whether the police officers were engaged in "execution of the (King)'s
process".

7. The cases draw a distinction between execution of the King's process and
the execution of process sued out for a litigant's private benefit. The
distinction is based on the difference between the public interest which is
served by execution of the King's process and the private interest which is
served by execution of other process: Burdett v. Abbot (1811) 14 East 1, at p
162 (104 ER 501, at p 563); Harvey v. Harvey (1884) 26 ChD 644. It is by no
means clear that proceedings under ss.8 and 15 of the Juvenile Courts Act are
proceedings "when the King is party" (cf. Munday v. Gill (1930) 44 CLR 38, at
p 86; John L Pty. Ltd. v. Attorney-General (N.S.W.) (1987) 163 CLR 508, at pp
518-519, 523-524, 540) but, assuming that the public interest in such
proceedings makes "the King ... party" for the purposes of the third rule in
Semayne's Case, the question remains whether the service of a summons pursuant
to s.27 of the Justices Act is an "execution of the (King)'s process"? There
is a surprising dearth of authority on this question.

8. The present case is not concerned with the application of the third rule
in Semayne's Case to an arrest without warrant on a criminal charge (a problem
addressed in Lippl v. Haines (1989) 18 NSWLR 620; and see Dinan v. Brereton
(1960) SASR 101, at p 105), nor with its application to the execution of a
justice's warrant authorizing either arrest or search and seizure (a problem
addressed in Launock v. Brown (1819) 2 B and Ald 592 (106 ER 482)), nor with
its application to the carrying into effect of a court's judgment, order or
warrant. It is concerned only with the application of the third rule in
Semayne's Case to the service of a summons. It would be surprising to find
that the third rule does apply to the service of a summons, for that would
mean that the defendants in this case were authorized not only to go onto Mr
Plenty's farm but, if need be, after demand for entry, to break down the door
of his home to effect service on his daughter. We do not think that so
invasive an operation can be attributed to the third rule. We take the third
rule's reference to execution of process to relate to the enforcement of
process which is coercive in nature, that is, to the execution of process
against person or property. That is how the rule was understood in Tomlins'
Law-Dictionary: "to do execution, either on the party's goods, or take his
body, as the case shall be". The service of a summons is not an execution of
process of that nature.

9. A summons to appear before a court of summary jurisdiction to answer an
information or complaint does not itself compel a defendant to appear. Its
primary purpose is to ensure that natural justice is accorded to a defendant
by giving the defendant notice of the subject of the complaint and an
opportunity to be heard. Service of a summons, unlike the execution of a
warrant of arrest, does not coerce a defendant to appear, though a failure to
appear in answer to the summons may lead to the issue of a warrant (see
Jervis' Act - the Summary Jurisdiction Act 1848 (U.K.) (11 and 12 Vict. c.43).
The essential nature of a summons as the means of according natural justice
has been established by long practice. In Reg. v. Simpson (1716) 10 Mod 378
(88 ER 771), when the validity of summary convictions was challenged on the
ground that the defendant was not present, Lord Parker C.J., speaking for the
Court of King's Bench, said (at pp 378-379 (pp 771-772)):
" The great objection against these convictions is, that
the justices of the peace have no authority to proceed
against the party, and convict him of the offence in his
absence. As to this matter we are all of opinion, that
the conviction is a good conviction, though taken in the
absence of the party. And here it is to be observed, that
the statute does not give the justices any particular
direction, or prescribe any particular form to be observed
in the convictions before them; all that the statute
requires is, that this conviction be 'by oath of one
credible witness.' So that the justices are not obliged
to the observance of any rules, unless those of natural
justice, which all men are bound to observe. One of those
rules I readily own is, that the offender should be heard
before he be condemned. But this rule must admit of this
limitation, viz. unless the party refuse to appear. For
as it would be unjust not to require the justices to summon
the party, and give him notice to appear and make his
defence, so to require more from the justices, would be to
put it in the power of the offender to elude justice, and
render his conviction impossible, by wilfully absenting
himself."
Thus Blackstone wrote (Commentaries on the Laws of England, (1769), Bk IV, Ch
20, pp 279-280):
" The process of these summary convictions, it must be
owned, is extremely speedy. Though the courts of common
law have thrown in one check upon them, by making it
necessary to summon the party accused before he is
condemned. This is now held to be an indispensable
requisite (Salk 181 2 Lord Raym 1405): though the justices
long struggled the point; forgetting that rule of natural
reason expressed by Seneca,
'Qui statuit aliquid, parte inaudita altera,
Aequom licet statuerit, haud aequus suit.'
A rule, to which all municipal laws, that are founded on
the principles of justice, have strictly conformed: the
Roman law requiring a citation at the least; and our own
common law never suffering any fact (either civil or
criminal) to be tried, till it has previously compelled an
appearance by the party concerned. After this summons, the
magistrate, in summary proceedings, may go on to examine
one or more witnesses, as the statute may require, upon
oath; and then make his conviction of the offender, in
writing: upon which he usually issues his warrant, either
to apprehend the offender, in case corporal punishment
is to be inflicted on him; or else to levy the penalty
incurred, by distress and sale of his goods."
In Burn's Justice of the Peace, 30th ed. (1869), vol.I, p 1126, the author
states:
"It was before (the Summary Jurisdiction Act 1848)
absolutely requisite in all cases, unless where the
legislature has in express terms dispensed therewith, that
the defendant should be summoned, in order that he may have
an opportunity of being heard and making his defence. (R.
v. Allington, 2 Stra 678; R. v. Benn, 6 TR 198; R. v.
Commins, 8 D and R 344; Child v. Capel, 2 C and J 579, per
Bayley, B.; R. v. Hall, 6 D and R 84; R. v. Justices of
Stafford, 5 N and M 94; 1 H and W 328; Painter v. Liverpool
Gas Company, 3 A and E 433; R. v. Martyr, 13 East, 56; 11
Co Rep 99.) This is but natural justice, and if a
magistrate should proceed against a person without
summoning or hearing him, he would be guilty of a
misdemeanour, punishable either by information or
indictment. (R. v. Allington, 2 Stra 678; R. v. Venables,
2 Ld Raym 1406; 2 Stra 630; R. v. Constable, 7 D and R
663.)"
Stephen's Commentaries on the Laws of England, 8th ed. (1880), vol.IV, ch.XI,
pp 330-331, stated the effect of the Summary Jurisdiction Act as follows:
" Where a written information has been laid before any
justice of the peace for any county or place in England or
Wales, of any offence committed within his jurisdiction,
and made punishable on summary conviction, - he is to issue
his summons to the party charged, requiring him to appear
and answer the charge: and, if the summons be disobeyed, he
may then issue a warrant to apprehend him, and bring him
before the court".
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."
In Munday v. Gill, Dixon J. (at p 86) distinguished trial on indictment from
summary proceedings by pointing, inter alia, to the bringing of the prisoner
to the bar of the court "in his own proper person" to stand trial on
indictment while, in summary proceedings, "the defendant is given a sufficient
opportunity to appear which (unless he be in custody because it is considered
that he will abscond) he may exercise or not at his choice, and, whether he
avails himself or not of his right to be present, he is dealt with by those
assigned to keep the peace, who judge both law and fact." The service of a
summons is not the execution of coercive process against either person or
property. As Lord Goddard C.J. said in R. v. Holsworthy Justices; Ex parte
Edwards (1952) 1 All ER 411, at p 412:
"Serving a summons is not an 'execution under the process
of any court of justice'; it is simply the commencement of
process."
Common law authority tends against the proposition that the third rule in
Semayne's Case applies to service of a summons on premises entry onto which
has been forbidden by the person in possession and entitled to possession
thereof. It follows that the common law gave no authority to Constables Dillon
and Will to go onto Mr Plenty's farm in an attempt to serve the fresh summons
on Mr Plenty's daughter.

10. Next, it is submitted that the statutory power to serve a summons, either
personally or non-personally, carries with it the right to make such entry on
land as is necessary to effect service. This argument, which had the support
of the courts below, would construe the statute as conferring a right to enter
private premises without consent even though the person in possession has no
connection with the matter to which the summons relates. Some statutes which
confer a power to arrest have not been construed as carrying a right to enter
on private property (see per Lord Keith of Kinkel in Clowser v. Chaplin (1981)
1 WLR 837, at p 842; (1981) 2 All ER 267, at p 270) although, in other cases,
a statutory power of arrest has been held to carry a qualified right to enter:
see Eccles v. Bourque (1975) 2 SCR 739; (1974) 50 DLR (3d) 753; Halliday v.
Nevill, at pp 15-16. But a statute which confers a power to arrest is of a
different order from a statute which prescribes the manner of service of a
summons and which confers no power on a person to do a thing that that person
is not free to do at common law. Section 27 of the Justices Act is merely
facultative, giving to the process-server an option as to the manner of
service. It confers no relevant power. The option of personal or
non-personal service for which s.27 provides relates simply to the sufficiency
of the giving of notice to a defendant after which the justices may proceed to
hear and determine the matter in the exercise of their jurisdiction. In
truth, the provisions of s.27 do nothing to create an implication that a
process-server availing himself of either of the options acquires a power to
enter upon private land without the leave or licence of the person in
possession or entitled to possession thereof.

11. The grounds advanced by the defendants to justify their entry fail.
Their entry was wrongful, and the plaintiff is entitled to judgment and an
award of some damages. The vicarious liability of the third and fourth
defendants was not argued and that question may require further consideration.
At first instance, Mohr J. said that, even if a trespass had occurred, the
trespass was "of such a trifling nature as not to found (sic) in damages."
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. As the subject of damages was not argued before us, it will be
necessary to remit the assessment of damages to the Supreme Court. Similarly,
the question of vicarious liability should be remitted. Although the plaintiff
ultimately succeeds, he failed on many of the issues litigated in the Supreme
Court and the question of costs in that Court should be dealt with by that
Court. It is desirable to remit these questions to the Full Court where,
hopefully, the parties may agree on the orders to be made but where, in any
event, the Full Court may make such orders for determining the questions
remitted as it may be advised.

12. We would allow the appeal with costs, set aside the order of the Full
Court dismissing the appeal against the dismissal of the plaintiff's claim in
trespass and in lieu thereof allow the appeal to that Court against the
dismissal of that claim. In lieu of the Full Court's order in that respect
order that the judgment for the defendants pronounced by Mohr J. be set aside
and in lieu thereof judgment be entered for the plaintiff against the first
two defendants and against such other defendants as the Supreme Court shall
determine for damages for trespass to land to be assessed and that the matter
be remitted to the Full Court of the Supreme Court of South Australia to
assess the plaintiff's damages, to determine whether the judgment be entered
against the third or fourth defendants or both of them and to determine what
costs, if any, of the proceedings in the Supreme Court the defendants or any
of them should pay to the plaintiff or to direct the manner in which these
questions shall be determined.

JUDGE2
GAUDRON AND McHUGH JJ.
The question in this appeal is whether a police
officer has the right under the law of South Australia to enter private
property for the purpose of serving a summons after the occupier of the
property has notified the officer that he or she has no permission to enter
the land.
Factual Background

2. The first and second respondents, who are police officers, went to the
appellant's farm on 5 December 1978 in order to serve a summons on his
daughter and notices on the appellant and his wife. The summons and the
notices were issued pursuant to the provisions of the Juvenile Courts Act 1971
(S.A.) ("the Act"). It was common ground in this Court that the officers did
not have any express or implied consent to go onto the appellant's land. In
earlier statements and correspondence, he had made it plain that, if the
summons was to be served, it had to be served by post. The officers found the
appellant, his wife and two other persons having a conversation in a double
garage, some distance from a dwelling-house on the farm. The garage had no
door, the opening on each side being separated by a "pillar" of galvanised
iron four feet in width. The appellant and his wife refused to accept the
summons and the notices. The first respondent placed them on the car seat in
which the appellant was sitting. As the first and second respondents were
leaving the farm, the appellant attempted to strike the first respondent with
a piece of wood. After a struggle, the appellant was arrested. He was
subsequently convicted of assaulting the first respondent in the execution of
his duty.

3. As a result of the incident, the appellant sued the respondents in the
Supreme Court of South Australia for damages for assault and trespass. The
trial judge gave judgment for the respondents. His judgment was upheld by the
Full Court. This appeal concerns only the question whether the respondents
are liable for trespass to the appellant's land.
The common law right of entry

4. The policy of the law is to protect the possession of property and the
privacy and security of its occupier: Semayne's Case (1604) 5 Co Rep 91a, at
p 91b (77 ER 194, at p 195); Entick v. Carrington (1765) 2 Wils KB 275, at p
291 (95 ER 807, at p 817); Southam v. Smout (1964) 1 QB 308, at p 320; Eccles
v. Bourque (1975) 2 SCR. 739, at pp 742-743; (1974) 50 DLR (3d) 753, at p 755;
Morris v. Beardmore (1981) AC 446, at p 464. A person who enters the property
of another must justify that entry by showing that he or she either entered
with the consent of the occupier or otherwise had lawful authority to enter
the premises: Entick, at p 291 (p 817 of ER); Morris v. Beardmore, at p 464;
Southam v. Smout, at p 320; Halliday v. Nevill (1984) 155 CLR 1, at p 10.
Except in the cases provided for by the common law and by statute, constables
of police and those acting under the Crown have no special rights to enter
land: Halliday, at p 10. Consent to an entry is implied if the person enters
for a lawful purpose. In Robson v. Hallett (1967) 2 QB 939, Lord Parker C.J.
said (at p 951):
"the occupier of any dwelling-house gives implied licence to
any member of the public coming on his lawful business to
come through the gate, up the steps, and knock on the door
of the house."
This implied licence extends to the driveway of a dwelling-house: Halliday.
However, the licence may be withdrawn by giving notice of its withdrawal. A
person who enters or remains on property after the withdrawal of the licence
is a trespasser. In Davis v. Lisle (1936) 2 KB 434, police officers who had
lawfully entered a garage for the purpose of making enquiries were held to
have become trespassers by remaining in the garage after they were told by the
proprietor to "get outside".

5. The common law has a number of exceptions to the general rule that a
person is a trespasser unless that person enters premises with the consent,
express or implied, of the occupier. Thus, a constable or citizen can enter
premises for the purpose of making an arrest if a felony has been committed
and the felon has been followed to the premises. A constable or citizen can
also enter premises to prevent the commission of a felony, and a constable can
enter premises to arrest an offender running away from an affray. Moreover, a
constable or citizen can enter premises to prevent a murder occurring. In
these cases there is power not only to enter premises but, where necessary, to
break into the premises. However, it is a condition of any lawful breaking of
premises that the person seeking entry has demanded and been refused entry by
the occupier. See Swales v. Cox (1981) QB 849, at p 853. Furthermore, a
constable, holding a warrant to arrest, may enter premises forcibly, if
necessary, for the purpose of executing the warrant provided that the
constable has first signified "the cause of his coming, and ... (made) request
to open doors": Semayne's Case, at p 91b (p 195 of ER); Burdett v. Abbot
(1811) 14 East 1, at pp 158, 162-163 (104 ER 501, at pp 561, 563); Lippl v.
Haines (1989) 18 NSWLR 620, at p 631. But no public official, police
constable or citizen has any right at common law to enter a dwelling-house
merely because he or she suspects that something is wrong: Great Central
Railway Co. v. Bates (1921) 3 KB 578, at pp 581-582. Nor, except in the
instances to which we have referred, can any person enter premises, without a
warrant, to apprehend a fugitive who may be on the premises: Lippl v. Haines,
at p 636. Another exception to the general rule that a person who enters
premises without the express or implied consent of the occupier is a
trespasser is the rule that the sheriff can enter premises, by force if
necessary, for the purpose of executing process in cases where the Sovereign
is a party to the action: see the third resolution in Semayne's Case, at p
91b (p 195 of ER). Moreover, if the door of premises is open the sheriff may
enter "and do execut(ion) at the suit of any subject, either of the body, or
of the goods" (at p 92a (p 197 of ER)). But the right to execute at the suit
of a subject does not extend to breaking open the outer doors of a
dwelling-house: Semayne's Case, at pp 92a, 92b (pp 197, 198 of ER); Burdett v.
Abbot, at pp 154-155 (p 560 of ER); Southam v. Smout, at pp 322-323, 326, 329;
Tomlins' Law-Dictionary, 4th ed. (1835), vol.1, tit. Execution, III. 3. It
has been held, however, that, for the purpose of executing process at the suit
of any subject, the sheriff may break open a barn or outhouse which is not
part of a dwelling-house: Penton v. Brown (1664) 1 Keb. 698 (83 ER 1193).

6. A number of statutes also confer power to enter land or premises without
the consent of the occupier. But the presumption is that, in the absence of
express provision to the contrary, the legislature did not intend to authorise
what would otherwise be tortious conduct: Morris v. Beardmore, per Lord
Diplock at p 455. Thus, in Colet v. The Queen (1981) 1 SCR 2, the Supreme
Court of Canada held that legislation which authorised the issue of a warrant
for "the seizure of any firearm" in the possession, custody or control of a
person did not authorise entry onto and the searching of the premises of the
person named in the warrant. In Clowser v. Chaplin (1981) 1 WLR 837; (1981) 2
All ER 267, the House of Lords held that a legislative power, authorising a
constable to arrest without warrant a person who had refused to provide a
specimen of breath, did not authorise him to enter private premises, without
the permission of the occupier, for the purpose of making the arrest.

7. Although the respondents had no express or implied consent to enter the
appellant's land, they contended that they were authorised to do so by the
third resolution in Semayne's Case or s.27 of the Justices Act 1921 (S.A.) or
both.
Semayne's Case

8. In Semayne's Case, the judges of England resolved that, while "the house
of every one is to him as his castle and fortress, as well for his defence
against injury and violence, as for his repose" (at p 91b (p 195 of ER)),
there were cases where the sheriff might enter private property without the
consent of the occupier. The third resolution of the judges provided (at p
91b (pp 195-196 of ER)):
"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; and that appears well by the stat. of
Westm 1 c 17 (which is but an affirmance of the common
law) as hereafter appears, for the law without a default in
the owner abhors the destruction or breaking of any house
(which is for the habitation and safety of man) by which
great damage and inconvenience might ensue to the party,
when no default is in him; for perhaps he did not know
of the process, of which, if he had notice, it is to be
presumed that he would obey it ..."

9. The respondents submitted that the service of the summons and the notices
in the present case constituted the execution of process for the purposes of
the third resolution in Semayne's Case. Consequently, so it was contended, no
trespass had occurred notwithstanding the refusal of the appellant to allow
the first and second respondents to enter his land.

10. In terms, the third resolution in Semayne's Case does not deal with the
question of entry onto land; it deals with the right to "break the party's
house". However, by necessary implication, the right to break the house
carries with it the right to enter the land on which the house is situated.
Nevertheless, nothing in the third resolution supports the entry of the first
and second respondents onto the appellant's land in the present case, for the
service of the summons and notices was not the "execution of the (King)'s
process".

11. First, the Sovereign is not a party to the present proceedings. In Munday
v. Gill (1930) 44 CLR 38, Dixon J. pointed out (at p 86):
"There is, however, a great distinction in history,
in substance and in present practice between summary
proceedings and trial upon indictment. Proceedings upon
indictment, presentment, or ex officio information are pleas
of the Crown. A prosecution for an offence punishable
summarily is a proceeding between subject and subject."
The summons addressed to the appellant's daughter was the product of a
complaint laid by an assistant police prosecutor. The notices ordering the
appellant and his wife to attend the hearing were issued by a special
magistrate in accordance with the power conferred on him by s.29 of the Act.
In John L Pty. Ltd. v. Attorney-General (N.S.W.) (1987) 163 CLR 508, Mason
C.J., Deane and Dawson JJ. said (at pp 518-519) that the fact that an officer
of the Department of Consumer Affairs had laid an information and that the
proceedings were taken and prosecuted by him with the authority of the Acting
Minister for Consumer Affairs did not make them proceedings "to which the
Crown was a party in any accepted meaning of the words 'Crown' and 'party'".

12. Secondly, the service of a summons is not the execution of process for
the purpose of the third resolution. In the third resolution in Semayne's
Case, the judges, in referring to the execution of the King's process, were
referring to the sorts of execution to which Sir Edward Coke referred in his
Reports: final executions which ended the suit or those executions which
tended to some end in the suit such as the writ of capias ad satisfaciendum by
which a debtor was imprisoned until satisfaction was made for the debt costs
and damages: see the discussion in Tomlins' Law-Dictionary under the heading
"Execution". The reference to execution of process in the third resolution in
Semayne's Case is a reference to the seizure of the body or goods of the
defendant and not to the service of process. This can be seen from the use of
the term "execution" in the fourth resolution in that case where it clearly
refers to seizure and not service. The judges resolved (at p 92a (p 197 of
ER)):
"In all cases when the door is open the sheriff may
enter the house, and do execut(ion) at the suit of any
subject, either of the body, or of the goods; and so may the
lord in such case enter the house and distrain for his rent
or service".
It is highly unlikely that the judges were using the term "execution" in the
third resolution in a sense different from that used in the fourth resolution.
This was obviously the view of the authors of the fourth edition of Tomlins'
Law-Dictionary who stated (s.III.3) under the heading "Execution":
"whenever the process is at the suit of the king, the
sheriff or his officer may, after request to have the
door opened, and refusal, break and enter the house to do
execution, either on the party's goods, or take his body, as
the case shall be. 5 Co 91 b."

13. In R. v. Holsworthy Justices; Ex parte Edwards (1952) 1 All ER 411, at p
412, the Divisional Court had to consider the meaning of the phrase "any
execution under the process of any court of justice" in s.46 of the Offences
against the Person Act 1861 (U.K.) (24 and 25 Vict. c.100) which ousted the
jurisdiction of justices to hear and determine a charge of assault. Lord
Goddard C.J., with whose judgment Byrne and Parker JJ. agreed, said (at p
412):
"Serving a summons is not an 'execution under the process
of any court of justice'; it is simply the commencement of
process."

14. For the two reasons set out above, the service of the summons and notices
was not the execution of process within the meaning of the third resolution of
Semayne's Case.

15. Furthermore, neither principle nor policy justifies the extension of the
law expressed in that resolution to cover the case of service of a summons and
a fortiori the case of the service of a notice. In principle, there is a
fundamental difference between the arrest of a person or execution of process
and the service of a summons. In the case of an arrest or execution against
the body of a person, the object of the arrest or execution is to ensure that
the defendant will meet his or her obligation or answer the charge. In the
case of an execution against the goods of a person, the object is to satisfy a
judgment already given. The object of serving a summons is different. It is
to notify the defendant of the charge and to give him or her an opportunity to
defend the charge: see Burn's Justice of the Peace, 30th ed. (1869), vol.I, p
1126; Reg. v. Simpson (1716) 10 Mod 378 (88 ER 771); Blake v. Beech (1876) 1
Ex D 320; Munday v. Gill, at p 86. Service of a summons is the first step
towards achieving procedural fairness in the litigation. It fulfils a basic
requirement of the rules of natural justice. But it is not concerned to
compel the attendance of the defendant to answer the charge. If the defendant
fails to appear at court on the return date, the magistrate or justice may
issue a warrant for the apprehension of the defendant but is not required to
do so. He or she may proceed to hear the charge even though the defendant
does not appear.

16. Thus, the object of serving a summons is different from the object of an
arrest or an execution against the goods or body of a person. There is no
logical basis for extending a rule whose object is to ensure the satisfaction
of a judgment or obligation or the attendance of a person before a court to
the case of the service of a document whose object is the provision of
information. The very limited nature of a constable's right to enter private
property for the purpose of arrest is by itself a compelling argument for
holding that, without making major changes to the law, the common law cannot
logically recognise the service of a summons as a ground for entering premises
against the will of the occupier. It would be incongruous for the common law
to permit entry for the purpose of arrest in a few cases only but to permit
entry for the purpose of serving a summons in every case whatsoever.

17. Furthermore, nothing in the policy which underpins the third resolution
in Semayne's Case suggests that the achievement of its goal will be
facilitated or promoted by extending the third resolution to cover the case of
the service of a summons. The policy behind the third resolution is that the
public interest in securing the Crown revenues and apprehending alleged
offenders is greater than any consequential interference to the private rights
of the occupiers of property. Serving a summons does not facilitate or
promote this policy. The object of the service is not to bring the defendant
before the court or to secure the revenues of the Crown but to apprise the
defendant of the nature of the case which is alleged against him or her.
Whether or not the defendant appears in answer to the summons is a matter
entirely for that person.

18. Failure to make an arrest or issue execution may frustrate the
administration of justice. But failure to serve a summons does not mean that
the administration of justice is frustrated. When the defendant deliberately
refuses to accept or evades service of the summons, judgment against him or
her may still be entered. The defendant cannot complain in those
circumstances that the rules of procedural fairness have been breached. Nor
can he or she complain if execution subsequently issues. Of course, in most
cases, a justice prefers to have a defendant, who evades service, apprehended
and brought before the court by warrant. He or she will prefer to do so not
merely for the purpose of ensuring that the defendant does not evade the
penalties imposed by law but because of the deep reluctance of those trained
in the common law system to permit a charge to be heard against a person in
his or her absence. Nevertheless, in such cases it is the warrant and not the
summons which secures the defendant's presence.

19. At this late stage in the development of the common law, it seems
impossible to declare that, for the purpose of serving a summons, a constable
has a common law right of entry upon private property without the consent of
the occupier. The general policy of the law is against government officials
having rights of entry on private property without the permission of the
occupier, and nothing concerned with the service of a summons gives any ground
for creating a new exception to the general rule that entry on property
without the express or implied consent of the occupier is a trespass.

20. The contention that the respondents are not liable for trespass to the
appellant's land because of the third resolution in Semayne's Case must be
rejected.
Justices Act 1921 (S.A.), s.27

21. Section 27 of the Justices Act provides in part:
"Subject to the provisions of this or any other
enactment specially applicable to the particular case, any
summons or notice required or authorized by this Act to be
served upon any person may be served upon such person by -
(a) delivering the same to him personally; or
(b) leaving the same for him at his last or most usual
place of abode or of business with some other
person, apparently an inmate thereof or employed
thereat, and apparently not less than sixteen
years of age".
In terms, s.27 has nothing to say about the right to enter property. In Morris
v. Beardmore, Lord Diplock said (at p 455) that the presumption is "that in
the absence of express provision to the contrary Parliament did not intend to
authorise tortious conduct". If service of a summons could only be effected by
entry on premises without the permission of the occupier, it would follow by
necessary implication that Parliament intended to authorise what would
otherwise be a trespass to property. But a summons can be served on a person
without entering the property where he or she happens to be at the time of
proposed service. Of course, inability to enter private property for the
purpose of serving a summons may result in considerable inconvenience to a
constable wishing to serve the defendant. But inconvenience in carrying out
an object authorised by legislation is not a ground for eroding fundamental
common law rights. As Woodhouse J. said in Transport Ministry v. Payn (1977) 2
NZLR 50, at p 64, where the New Zealand Court of Appeal had to deal with a
similar problem:
"I am unable to accept the view that it is open to the
courts to remedy a 'flaw in the working of the Act' by
adding to or supplementing its provisions ... Nor am I able
to think that in a matter of this importance Parliament can
have taken it for granted that basic rights of citizens were
inferentially being overriden."
In our opinion, s.27 of the Justices Act did not authorise the entry of the
first and second respondents onto the appellant's property after they were
informed that they did not have his consent to enter.
The appeal should be allowed

22. The purported justification for the first and second respondents' entry
onto the appellant's land has failed. The first and second respondents were
trespassers. Judgment in favour of the respondents should be set aside and
judgment entered for the appellant against all respondents on the claim of
trespass, since the parties seemed to have accepted that the third and fourth
respondents were vicariously responsible for the acts of the first and second
respondents in entering the appellant's land.

23. The matter must be remitted to the Supreme Court for the purpose of
assessing the appellant's damages.

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.

25. Subject to the above, we agree with the orders proposed by Mason C.J.,
Brennan and Toohey JJ.

ORDER
Appeal allowed with costs.

Set aside the order of the Full Court of the Supreme Court of South
Australia so far as it dismisses the appeal against the dismissal of the
plaintiff's claim in trespass to land. In lieu thereof order that the appeal
to that Court be allowed in part and that the judgment of Mohr J. dismissing
te plaintiff's claim in trespass to land be set aside and in lieu thereof
judgment for damages to be assessed be entered for the plaintiff against the
first and second defendants and such other defendants as the Supreme Court may
hold to beliable in trespass to land.

Remit the matter to the Full Court of the Supreme Court of South Australia
to:
(a) determine whether judgment for damages for trespass to
land should be entered against the third and fourth
defendants or either of them;
(b) assess the plaintiff's damages against the first and
second defendants and against such other defendants as
the Supreme Court shall determine; and
(c) determine what costs, if any, of the proceedings in the
Supreme Court, including the Full Court, the defendants
or any of them should pay to the plaintiff;
or to direct the manner in which these questions shall be determined.