Trespass to land

Trespass to land

elements
1. 1) locus standi
  1. must have exclusive possession of land eg ownership/leasehold New south wales v Ibbett
2. 2) interference with the land
  1. interference
    1. without authority
      1. plenty v dillion
    2. entry for impermissible purpose
      1. halliday v neville
      2. TCN channel 9 pty ltd v anning
    3. rufusal to leave: kuru v new south wales
    4. contact with the land
      1. setting foot on land : plenty
      2. throwing objects onto land: konskier v goodman
  2. with the land
    1. anything attatched to land eg. grass plants trees, gravel or buildings
    2. airspace ' to such a height that is necessary for the ordinary use and enjoyment of his land and the structures upon it' Baron of Bernstein v skyviews
      1. aircrafts flying = no tresspass
    3. subsoil will be tresspass in absence of stat authority : stoneman v lyons
3. 3) interference was intentional or negligent
  1. must intend/been negligent nickells v Melbourne corporation
    1. do not need to prove D intended
4. interference was direct
  1. act must directly bring about the contact with the plaintiffs land southport corp v esso petroleum co ltd
  2. tree branches no trespass
defences
1. a licence or lawful justification to enter (consent)
2. members of the public have implied licence to enter an unobstructed front yard and walk up the path or driveway to the front door for a legitimate purpose; Halliday v Nevil
  1. does not count if there is a sign saying not to enter or locked gate
  2. can be withdrawn
  3. TV does not have right to have cameras rolling TCN channel 9 pty ltd v Anning
  4. business premises; normally implies authority to all members of the public to enter the premisis to discuss business. Lincoln hunt australia pty ltd v willesee
3. stat provisions only give power to enter premises where the provision expressly confers apower or where a power of entry is impliedly necessary in order to give functionality to the provision plent v dillion
remedies
1. aggraved damages ; protect privacy to land even though no damage done; plenty v dillion
2. exemplary damages; concious wrongdoing new south wales v ibbett
3. ejectment of trespasser; a person who remains on the premises after occupier has asked to leave becomes trespasser once reasonable time has lapsed; cowell v rosehill racecourse co.
  1. the occupier or authorised rep is entitled to use force reasonably necessary to remove trespasser; Horkin v North melbourne football club social club; pull push or carry cannot use force to deliberatly cause harm. cullen v Rice
    1. if threatened by D/ resist removal they can use any force reasonably require to defend
4. nominal nsw v ibbett
5. compensatory; natural and probable losses; hogan v AG wright pty ltd
6. injunction

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	Created by tiffany nicholas almost 11 years ago