MARTIN CJ.
Procedure - Northern Territory - Judgments and orders - Enforcement - Execution
against property - Enforcement of costs order - Warrant of distress - Appellant
had no right to be notified of application for issue of warrant - No right to
be heard - Warrant of execution against goods binds property in goods of
execution debtor as from time warrant delivered to Sheriff or other enforcing
officer - Notice of application would lead to possibility of debtor acting to
avoid consequences of it being issued:
Justices Act 1929 (NT), ss63,63A(7)&(8),77,78(b),79,80 & 99
Sale of Goods Act 1972 (NT), ss5 & 29
Police Administration Act 1979 (NT)
Local Court Act 1989 (NT), s19(4)
Justices Regulations 1929 (NT), Form 29.
Harper v Carr (1797) 7 Term Rep 270, distinguished
Halsburys Laws of England, 4th Ed, Vol13, par398.
Warrant of distress - Part payment of a sum in respect of which warrant of
distress issued does not invalidate warrant -
Warrant of distress - Substantial compliance with prescribed form - Valid
notwithstanding arguable defects as to form -
Interpretation Act 1978 (NT), s68
Justices Regulations 1929 (NT), reg3.
Torts - Trespass - Trespass to land and rights of real property - Attempt to
execute warrant of distress - Whether entry by police constable into
appellant's premises constituted trespass - Withdrawal of implied licence for
lawful entry by appellant - No authority for bailiff to enter premises -
Warrant did not provide authority to enter in face of appellant's denial of
entry - Warrant could not authorise constable to enter room in circumstances -
Powers and duties of a constable
Police Administration Act 1979 (NT), s25.
Semayne's Case (1604) 5 Co Rep 91a; 77 ER 194, referred to.
Enever v The King (1906) 3 CLR 969 at 975 per Griffiths CJ., referred
to.
Southam v Smout [1964] 1 QB 308 at 321 per Lord Denning MR, referred
to.
Halliday v Neville (1984) 155 CLR 1 at 9-10 per Brennan J., referred
to.
Plenty v Dillon (1991) 171 CLR 635, applied.
Nicholson v Avon [1991] 1 VR 212 at 221-2 per Marks, referred to.
DARWIN, 25 November 1997 (hearing), 4 March 1998 (decision)
#DATE 4:3:1998
REPRESENTATION:
Counsel:
Appellant: In Person
st & 2nd Respondents: Mr G McDonald
Solicitors:
Appellant: -
1st & 2nd Respondents: Solicitor for the Northern
Territory
Order:appeal allowed.
MARTIN CJ.
This appeal arises from the decision of the Local Court, sitting at Darwin on 6
August 1997, dismissing the appellant's claim against the first respondent, a
Constable of Police, for trespass upon premises occupied by the appellant at
room 161, Ross Smith Guest House, 49 Parap Road, Parap. The second respondent
was sought to be held vicariously liable for the trespass of the first
respondent. The defence admitted that Constable Marinov attended at the room
in question, but denied that he wrongfully entered it, and asserted that the
entry was in the performance of his duties as a member of the Northern
Territory Police Service and pursuant to the Police Administration Act
1979 (NT).
The appellant was legally represented in the proceedings before the Local
Court, but unrepresented on the appeal. It is provided by s19(4) of the
Local Court Act 1989 (NT) that an appeal from a final order of that
court may be instituted on the grounds that the decision was wrong in law or
that the conduct of the proceedings was unfair. The grounds of appeal set out
in the Notice of Appeal are not easy to follow, but they became clearer in the
course of submissions. Some go to questions of law and some remotely suggest
unfairness in the proceedings. Others go to findings of fact, which are not
reviewable.
The relevant background to the Local Court action arises from proceedings
initiated by the appellant as complainant under s99 of the Justices Act
1928 (NT) in which she sought an order that a Mrs Ting, who it appears held a
managerial position at the Ross Smith Guest House, keep the peace towards her.
That matter was set down for hearing on 9 May 1996; the appellant was not
present when the matter was called on, the complaint was dismissed and she was
ordered to pay the defendant $250 costs. The Court there appears to have been
acting pursuant to ss63 and 77 of the Justices Act. The appellant
applied the following day pursuant to s63A to set aside the dismissal and the
order as to costs. Her application came before the Court on 15 May, and the
endorsement on the file indicates that the order dismissing the complaint and
for costs was set aside, but upon condition that the appellant pay Mrs Ting's
costs of $250 (ss63A(7) & (8)), such cost to be paid within two months from
that date. It also appears from the endorsements on the file that a hearing
was conducted on the complaint, that it was dismissed, and a further order was
made against the appellant that she pay the costs of those proceedings, this
time in the sum of $710 and in respect of that she was allowed six months to
pay. None of the procedures or orders made in respect of those matters is
called in question.
The costs of $250 were due to be paid by 15 July 1996. They were not. It will
be noted that there was no order as to what was to occur in default of payment,
but s80 of the Justices Act provides that it shall not be necessary for
an order to direct or provide for any levy of distress. The costs orders
appear to have been made pursuant to s77 of the Justices Act, and it is
provided in s78(b) that in a case such as this payment shall be enforced by
distress or imprisonment, and see also s79. On 13 August, application was made
to a Justice by the solicitor acting for Mrs Ting to issue a warrant of
distress supported by a Statutory Declaration that the costs of $250 ordered to
be paid had not been paid. It is not disputed that at the time the application
was made for the warrant the whole of the $250 was outstanding, and the time
allowed for payment had expired. The Justice must have been satisfied that
default had been made in payment of the costs and a warrant of distress in the
prescribed form (Form 29 Justices Regulations 1929 (NT)) was signed by
the Justice as required. It does not bear any Court stamp, but none is
required by law. (A copy of the warrant amongst the papers on the Court file
bears what appears to be the seal of the Local Court, but it is not clear how
that stamp came to be on the copy, and, in any event, it is irrelevant). As
prescribed, the warrant is addressed: "To all Members of the Northern Territory
Police Force and all Bailiffs of the Local Court". It recites that the
appellant "was on 15 May 1996 dealt with by the Court of Summary
Jurisdiction at Darwin in the Northern Territory for the offence of: apprehend
violence complaint and other offences. AND IT WAS adjudged that [she] for the
said offence(s) should pay the sum of $250.00" It goes on to correctly recite
that default had been made in payment and commanded those to whom the warrant
was addressed to make distress. The appellant argued before the Local Court
that the warrant was invalid in that: (a) it did not bear the seal of any
Court; (b) it did not correctly recite the circumstances giving rise to the
order for payment of the sum of $250, and (c) she was not informed of the
application for the warrant or given the opportunity to appear before the
Justice to be heard on that question. I will deal with those matters later.
The warrant was issued on 13 August 1996. On 19 August, and without knowing
that the warrant had been issued, the appellant went to the office of the Court
of Summary Jurisdiction in Darwin and paid $50. In her evidence she said that
she was then intending to pay that amount in respect of the order for payment
of costs of $250. All the proceedings on the complaint under s99 of the
Justices Act were dealt with on the one file, numbered 9606434 and the
receipt for the $50 simply bore that reference. The records of that Court show
that the $50 was first credited to the instalment card having to do with the
order for $250, upon which there had been a notation to the effect that the
warrant of distress had issued. The record noting the payment was crossed out,
and the payment then credited to another instalment card having to do with the
order for the payment of $710 costs. The appellant denied any knowledge of
that, and she said it was her belief, during the subsequent events, that she
owed but $200 in respect of the order for $250. Her evidence was that when she
attended at the Court office she told the person at the counter that she wanted
to pay some of the money off the $250, and denied that she was then told that a
warrant of distress had been issued and denied that there was any conversation
with the clerk informing her that the $50 was to be credited to the $710 costs
order. No evidence was called to contradict what the appellant had to say in
that regard. It is put that the $50 was tendered as an instalment in respect
of the costs order for $250, and that that payment having been accepted, the
warrant of distress was thereby invalidated. The fact is, however, that the
time allowed by the Court for payment of the $250 had expired and there had
been no application to extend that time.
On 2 September 1996 Mr Torr, a bailiff, went to the appellant's room armed with
the warrant with a view to executing it, she refused him entry, there was an
altercation between them, he enlisted the aid of the police by a telephone
call, and Constable Marinov, together with Constable MacCarthy arrived a little
later. Constable Marinov shortly thereafter entered the room which entry is
said to constitute the trespass. Mr Torr again entered the room at that stage.
No goods were seized, and he made a return to the warrant certifying that he
had made diligent search for goods and chattels of the appellant, and that he
could find no sufficient goods or chattels thereon to make a levy of the sum
mentioned in the warrant, $250 plus the warrant fees of $25, a total of $275.
There is no evidence that the appellant told either the bailiff or the police
that she had paid $50 on account of the $250 fine. Mr Torr did not give
any evidence.
Given the limited right of appeal to this Court, it is necessary that regard
now be had to what his Worship had to say in the course of his reasons leading
to the dismissal of the appellant's action in the Local Court. He found that
Constable Marinov entered the room against the appellant's will. His Worship
held that the warrant "appears regular on its face in the ordinary form",
although noting that the prescribed form was not well adapted to the
circumstances of this case. He noted s68 of the Interpretation Act 1978
(NT) and reg3 Justices Regulations, which provide that strict
compliance with forms is not required and substantial compliance is sufficient.
He found that when the bailiff first arrived, the appellant had opened the
door, gone into the corridor and attempted to lock the door from the outside,
whereupon the bailiff put his hand on the door to push it open whilst the
appellant continued to try and pull it shut. He prevailed; she let go, fell
away from the door into the corridor and suffered injury. The bailiff then
entered the room, but immediately left to make the telephone call to the
police. The appellant did not give the bailiff any authority to enter her
room. When the evidence between the appellant and Constable Marinov was in
conflict, his Worship accepted without reservation what the constable said.
The following are extracts from his evidence:
In examination in chief:
"Why did you attend?---We were tasked to attend which basically
means that our police communications section despatched us to a standby at
premises there, complainant was a bailiff in relation to the execution of a
warrant of distress. We were tasked to standby because there had been a
concern that a fracas of some description had occurred between two parties at
that premises and the bailiff wanted us present as a standby to ensure that the
peace and order was maintained while the warrant was executed. ... What do
you see your primary role in attending standbys to be?---My primary (sic role)
at attendance at standbys is to maintain law and order and to stop any violence
or any situation from arising. Did you see anyone at Room 161?---I turned
up with Constable MacCarthy. We pulled up the first building, I think it is,
as you come into the driveway, walked in the entrance way I then saw a
gentleman who I now know to be Mr Torr the bailiff and I - because I was
counting down the rooms and I found him outside, I think it was Room 161. As
soon as I pulled up I saw the lady seated over there and the man I'm referring
to, the bailiff, standing outside Room 161. HIS WORSHIP: The witness
indicates and identifies Ms Gardiner?---Yes, Ms Gardiner. I saw the two
of them there. I approached. At that point in time I stated who I was, who my
partner was, that we were there in relation to a complaint. I asked if the
gentleman was Mr Torr and he explained he was because he was the complainant.
At that point in time I recall being shown a document, a warrant of distress.
Now I can't tell you exactly how much the amount was for. A subsequent
complaint against police was made and at that time I think I said about $250
was the sum off the top of my head. I'm not certain whether it was 250 or 275.
It was a warrant of distress and it was addressed to constables of the Northern
Territory Police and Bailiff. ... Right. Would you be able to tell His
Worship to the best of your recollection what it was that you said to Ms
Gardiner?---It was words to the effect that this warrant authorised the
gentleman to go in and take property to the value - I think I said $250, I
think. I'm not certain. That's 250 or 275 dollars that was stated in the
warrant. Which ever was stated in the warrant. It authorised him to take
property to that value. Ms Gardiner was pretty distressed and she was a
bit vocal and she was extremely aggressive to the gentleman I was speaking to.
He stated he wanted to go into the premises. He wanted me to be present inside
while the warrant was executed. In my mind I was assisting him (sic with) the
execution of a warrant. We were executing the warrant together. All right,
Constable. Other than you - was there any other conversation with Ms
Gardiner?---I could see that Ms Gardiner was pretty distressed and I didn't
want her to jump in front of me and try and stop us because there's no way I
was going to use force to enter the room even with the warrant. So I said
words to the effect of "I'm here to protect you, I'm here to protect your
property right and I'm accompanying this man inside while he executes this
warrant or he gets property to the value. I'm going to record whatever's taken
in my note book' and I actually went and got my notebook open saying 'I'm here
to look after your interests as well' and I can (sic) remember exactly when I
said, but I said at one point 'I'm here to make certain this is done lawfully
and that this warrant is executed lawfully. I'm an impartial observer, I don't
take any stance one way or the other in this matter'. And I can't recall
exactly whether I said that straight away or immediate (sic) prior to the
thing. But immediately prior to going into the room I did say to her words to
the effect, I'm here to protect you, your property and rights and I'm going
inside and accompany this man and I'm going to note what property's taken in my
notebook to protect your property rights, or words to that effect. And I said
that because I thought straight away I said that would calm her down a
bit. HIS WORSHIP: You were trying to placate her, were you, with those
words?---Exactly sir, 100%. MR MACDONALD: What did you consider your role to
be in the whole of this incident?---Well, I've been present during the
execution of these warrants before. Generally we stand by and watch while the
bailiffs actually execute. I have on numerous occasions assisted bailiffs to
actually get the property off the premises. ... MR MACDONALD: In any event
constable, why did you go into room 161?---Basically because the bailiff wanted
to go in and he asked me to accompany him in and he said something along the
lines - I can't recall exact words but something along the lines just to make
certain that I'm not accused of stealing anything or anything I shouldn't be
taking, which I thought was a valid reason. He walked around her. She said,
no you can't go in my room or words to that effect, 'you can't go in my room'.
I don't know who she was directing it to, but it didn't really matter, in my
mind she was saying no to both of us as far as I was concerned. And he walked
around her and I walked around her and I have to admit that I thought part of
(sic my) duty was to make certain there was no continuation of the fracas that
had occurred earlier. So I did have in the back of my mind a secondary
objective which was to minimise any injury or discomfort between the two
parties to cause no breach of the peace to occur. ... In
cross-examination: When you attended did Mr Torr ask you to execute the
warrant for him?---He wanted me to go with him. He wanted me to be part of the
actually (sic) execution. What did he say?---He said he wanted me to come in
and watch him doing it, be present at the actual execution. He didn't want any
trouble occurring. So come and watch him do it, be present for the actual
execution?---Words along those lines. ... Further cross-examination was
directed to what the witness told Sgt Hofer, who had been investigating a
complaint against him made by the appellant. MR RENOUF: I guess I need to
put to you this, that you said words to the effect of you're attending as a
witness to the bailiff's action and you said words to the effect that you said
before in order to protect you and your property I'll go into your room and
record the seizure and removal of any property. But I want to put to you that
in fact you didn't ever say I'm going to assist Mr Torr to execute the warrant
in any other sense than as a standby?---I stated that we were authorised to go
in. I explained the warrant. I then - I said he was going in to actually
remove property and I stated I was going to go in with him. I was assisting
him to execute the warrant. I had no doubt about that matter. And the way I
said it I thought it was pretty blatant. I guess I put it to you that you
didn't say it quite like that when you reported on the incident to Mr Hofer,
you emphasised the witness being there, the being there to prevent a breach of
the peace, to record any items that were taken, those were the kinds of things
that you told Mr Hofer in your assessment of your role. At that time you were
not emphasising the fact that you were in any way assisting Mr Torr execute the
warrant other than by standing by to keep the peace?---I think that the
questions that were being asked in the complaint against police were in
relation to my failing to provide my name when she asked me on the second
occasion and she was distressed at that time and she was pretty upset and she
was getting upset with me. I thought that was the nature of the complaint and
that's what I was dealing with. ... MR RENOUF: In your discussions with
Mr Torr, prior to your entry to the room did anything he said cause you to
believe that he had attempted to enter the room before you got there?---I don't
know if he'd gone in or tried to go in. All I know is there's been some sort
of fracas involving the doorway there and two parties had been involved in some
sort of push and shove match in the doorway. I don't know what it was, I
wasn't there. I can't comment on that, sir. ... Just to clarify something
I have asked before but just formally you - I put it to you that at no time did
Torr ask you to execute the warrant with him?---He did, he asked me to go in
with him to be present during the thing. He wanted that person to be
present. To go in and be present but not to do the job that he was supposed
to be doing, that he had a job to do?---I was supposed to be there to help
him. HIS WORSHIP To help him, that's your evidence?---And I was doing that
by keeping my notebook open recording what was going on and by allaying any
type of aggression that would occur between the two parties which as far as I
(sic am) concerned I achieved. There are two aspects, there's the standby - -
- Don't go on just answer the questions and that'll be
enough."
His Worship held that the entry by Constable Marinov and the bailiff together
was separate to that made earlier by the bailiff alone. He inferred from all
of the evidence that the door to the room "was never successfully locked or
indeed closed" after the appellant came out of it in response to the initial
call by the bailiff. The appellant's evidence was that the door was open when
Constable Marinov and the bailiff went into the room. His Worship came to his
views about his acceptance of the evidence of Constable Marinov and his
rejection of that of the appellant "having studied them in the witness box
today". His Worship's finding include the following:
It is not open to the appellant to appeal against his Worship's findings of
fact, none of those findings being tainted by error of law. There was evidence
to support each such finding. In so far as there was a conflict of evidence
between the appellant and Constable Marinov, his Worship made findings based
upon his view of the credibility of the witnesses and those findings must
stand. The appellant suggests in grounds of appeal numbered 4, 12 and 13, for
example, that his Worship erred in his assessment by taking into account
matters personal to her and in his findings about her conduct in the course of
the events in question. In so far as it was thereby suggested that the
proceedings were unfair, I reject it. His Worship was doing no more than to
record his observations and the facts as he found them to be on the evidence.
Some of those findings went to the basis for his preferring the evidence of
Constable Marinov to that of the appellant. That was a function particularly
within the province of the Magistrate, and it can not be unfair for him to have
carried out his responsibilities in that regard as much as the appellant might
disagree with him.
One of the grounds of appeal states that the Magistrate "did not apply due
process of law". If it was intended to raise a ground of appeal separate from
any of the other twenty grounds of appeal, then it is not particularised and
must be dismissed. Similarly, in relation to the ground that asserts that the
Magistrate "did not apply the law in the matter of misapplication of law" and
"did not apply the law in the matter of disrepair of documents". A further
ground of appeal complains that his Worship failed to call Mr Torr as a
witness. He had no power to do so (In re Enoch & Zaretzky, Bock &
Co's Arbitration [1910] 1 KB 327).
The substance of the appellant's complaints as conveyed in numerous grounds of
appeal may be summarised as follows:
the warrant was invalid, and accordingly did not authorise the first respondent
to do anything;
if the warrant was valid, it did not authorise him to enter her room. The
resolution to that question depends partly upon the findings of fact made by
his Worship.
In my opinion, the warrant was properly obtained by application supported by
the Statutory Declaration. The time for payment of the $250 had expired, and
it had not been paid. The appellant must be taken to have known that. There
was another order for payment of costs of $710, in respect of which the time
for payment had not expired. No authority was put forward upon which to found
the proposition that part payment of a sum in respect of which a warrant of
distress has issued invalidates the warrant, and my researches have not
disclosed any. The subject is not mentioned in Mather on Sheriff and
Execution Law, 3rd Ed, (Wigan and Meston (eds), Stevens &
Sons, London, 1935), but I note that at p55 it is said that so long as a
judgment exists it protects those who seize property under an execution founded
on it, and further, that a Sheriff is fully protected if he executes a writ
according to its tenor. It may be that a judgment debtor has a remedy if goods
are seized and sold by way of execution of a warrant issued in respect of a sum
greater than that properly due to the creditor, but that is not the case
here.
Contrary to her submission, the appellant had no right to be notified of the
application made by Ms Ting for the issue of the warrant and to heard. Nothing
in the statute requires that; it simply requires that an application be made
for the warrant. It would be odd if a Justice had authority to issue a warrant
without application supported by evidence of default in payment. A warrant of
execution against goods binds the property in the goods of the execution debtor
as from the time the warrant is delivered to the Sheriff (which expression
includes any officer charged with the enforcement of the warrant): Sale of
Goods Act 1972 (NT) ss5 & 29. Notice of application for a warrant
would surely lead to the possibility of a debtor so acting as to avoid the
consequences of its being issued. The appellant relied upon ancient
authorities to support her argument that she was entitled to notice for the
application. Referring to the power of a churchwarden to take distress for a
poor rate, she relied upon the authority that the granting of such a warrant by
a Magistrate first required that the party be summoned in order to hear what
the defendant had to say in his defence (Harper v Carr (1797) 7 Term Rep
270, referred to in The English and Empire Digest, vol 18, p390,
par1403.
The distinction between cases to do with enforcement of payment of rates by
distress and this matter lies in the fact that generally, in England, the
payment of rates is enforceable by distress and not by action. No distress
proceedings may be taken unless there has been a demand and neglect or refusal
to pay, followed by a complaint before a Justice and an application for a
summons requiring the person named to appear and show why the rate has not been
paid. If no valid objection is raised, the Court issues a distress warrant
(see generally Halsburys Laws of England 4th Ed, Vol 13,
par398). Here the question of the liability of the appellant was settled by
the order as to costs.
His Worship did not err in holding that the warrant was valid notwithstanding
the arguable defects as to form. It substantially complied with the prescribed
form. It sufficiently identified the proceedings, and was accurate as to the
amount which the appellant had been ordered to pay. In all other respects it
complied.
The nub of the appellant's complaint is and always has been that the first
respondent had no authority to enter her room. As Brennan J. put it in
Halliday v Neville (1984) 155 CLR 1 at p9:
His Honour commented at p10 that it was still as true as it was in 1765 that by
the laws of England every invasion of private property, be it ever so minute,
is a trespass and if any man set his foot upon property without licence of the
occupier, then he is liable to an action even though the damage be nothing.
His Honour referred to the words of Lord Camden LCJ in Entick v
Carrington (1765) 19 St Tr 1029 at 1066: "...If he admits the fact, he is
bound to shew by way of justification, that some positive law has empowered or
excused him."
The appellant's submissions were primarily directed to whether the entry into
her room by the constable was authorised by the warrant. It will be recalled
that the warrant was addressed to all members of the Northern Territory Police
Force as well as the bailiffs. Examination of the powers of a Sheriff or
bailiff as to entry to enforce civil process usually begins with the
resolutions in Semayne's Case (1604) 5 Co Rep 91a; 77 ER 194.
This is not a case involving entry at the suit of the Sovereign to which
particular rules apply. This is a case at the "suit of a subject" - the
execution of a warrant of distress issued on application of a person to whom
the appellant had been ordered to pay costs. In such a case, according to the
fourth resolution in Semayne's Case at p92b (ER p197-198), where the
door is open a person authorised to execute the warrant may enter and do
execution (per Lord Denning MR in Southam v Smout [1964] 1 QB 308 at
321). For a case in which a bailiff was held to have acted outside his
authority by forcing his way into the house to levy on a judgment debt see
Broughton v Wilkerson (1880) 44 JP 781, D.C. The same issues arose in
Vaughan v McKenzie [1969] 1 QB 557 where, after reviewing a number of
the cases, it was held that an officer executing civil process might not
lawfully enter a dwelling house of an execution debtor if the debtor physically
resisted his entry, even if the door was unfastened. All of those cases have
to do with circumstances where some degree of force was used by the person
attempting the execution. They turned on the point that the distress sought to
be executed did not authorise entry into the premises because the implied
license of the occupier for lawful entry had been withdrawn either by the
locking of the outer doors or windows or by physical resistance. Those are but
examples of notice of withdrawal of the implied license and what the appellant
said to the bailiff and the constable on this occasion is another. She made it
plain to them they were not to go into her room, and that was sufficient
(Plenty v Dillon (1991) 171 CLR 635). It was not suggested that the
bailiff had any authority to enter the room, and the warrant did not achieve
that end in the face of the appellant's denial of entry. The open door does
not prevail over the express words of dissent.
Accepting the evidence of the constable, his Worship found that:
The warrant could not, as a matter of law, authorise the constable to enter the
room in the circumstances. His Worship erred.
It is necessary to go into a little detail in relation to the powers and duties
of a constable. A constable has all the powers and privileges as are by any
law in force in the Territory, conferred or imposed upon him. (Police
Administration Act 1979 (NT), s25). The powers at common law include those
necessarily incident to the discharge of a constable's functions as a peace
officer or conservator of the peace, per Griffiths CJ. in Enever v The
King (1906) 3 CLR 969 at p975. See also Halsburys Laws of England,
Vol 36, 4th Ed, p320. The oath taken, or affirmation made by
members of the Territory Police Force include an undertaking "to see and cause
Her Majesty's peace to be kept and preserved" as required by the schedule to
the Police Administration Act.
In the performance of the duties to prevent a breach of the peace, police
officers may enter upon private premises. See the authorities cited by Marks
J. in Nicholson v Avon [1991] 1 VR 212 (special leave to appeal to the
High Court refused). His Honour's review of the law commences at p221.
Included therein at p222, is what fell from Lord Hewart CJ. in Thomas v
Sawkis [1935] 2 KB 249 at p255:
See also Justice Avery at p256 and Justice Lawrence at p257. Reference might
also be made to Panos v Hayes (1987) 44 SASR 148 where like issues are
considered by Legoe J. There is no reason to think that those duties and
powers do not operate in the Territory. The evidence of Constable Marinov was
that he was aware that:
His Worship accepted that evidence.
I have no doubt, upon consideration of the evidence, that the constable acted
in the way he thought best in the circumstances. It is certainly not shown
that he knew that entry into the room would be unlawful. His Worship's
findings, not challenged upon appeal by the first respondent, are that the
entry into the room was based upon the belief that it was authorised by the
warrant. However, it was not. Once in the room, the constable's intention was
to assist in the execution by taking notes about any property seized. Nowhere
does he say that he apprehended that the appellant would try and physically
interfere with the bailiff or otherwise commit a breach of the peace in the
room. Any breach or threatened breach of the peace outside the room could have
been dealt with there. Entry into the room was not required in the discharge
of the constable's duty to keep the peace.
The appeal must be allowed. The order dismissing the plaintiff's claim is set
aside and in lieu thereof order that judgment be entered in favour of the
appellant for trespass against the first respondent. The question of the
vicarious responsibility of the second respondent and the assessment of damages
must be dealt with. I will hear the parties as to the further orders which
ought to be made, but I am presently minded to remit the proceedings to the
Local Court to determine those other issues.
"If the only reason for the entry of Marinov was to protect this
lady, in my opinion there's no doubt that trespass is made out. But his whole
object and what he was doing in there was to do what was authorised by right to
be done by all members of the Northern Territory Police Force of which he is a
member and that is to see to the execution of the warrant of distress. That's
the essence of his evidence. I accept him on that. I don't see anything
necessarily inconsistent between that what he said of Hofer. You can have more
than one purpose. But in any event a secondary purpose of placating or keeping
the peace really went to assisting the first purpose which was to assist and
help in the execution of the warrant."
"The churchwardens and four overseers of each parish were to
maintain and set to work children whose parents were unable to maintain them,
to purchase stocks of material on which they were to set the poor to work; and
to relieve the impotent. For these purposes they were to raise money by a
rate; and power was given to the justices to rate a richer parish in aid of a
poorer parish. Provision was made for the erection of cottages for the
maintenance of the impotent poor. Parents were made liable to maintain their
impotent children, and children their impotent parents - a liability extended
in 1601 to grandparents and grandchildren. ... Begging was prohibited and all
beggars were made punishable as rogues. The justices were empowered to levy a
further rate for the maintenance of hospitals, almshouses, the relief of poor
prisoners in the King's Bench and Marshalsea, and other charitable purposes."
(William Holdsworth, A History of English Law, Vol IV, p.397, Sweet and
Maxwell 1966).
"This case is about privacy in the home, .... . It is about
lawfulness of police entering on private premises without asking for
permission. It is a contest between public authority and the security of
private dwellings."
"... his whole object and what he was doing in there was to do what
he was authorised by right to be done by all members of the Northern Territory
Police Force ... that is to see to the execution of the warrant of distress.
... in any event a secondary purpose of placating or keeping the peace really
went to assisting the first purpose which was to assist to help in the
execution of the warrant."
"It is elementary that a good defence to an action for trespass is
to show that the act complained of was done by authority of law, or by leave
and licence."
"... a fracas of some description had occurred between two parties
at that premises and the bailiff was thus present as a standby to ensure that
the peace and order was maintained while the warrant was executed".