Justice Kirby’s High Court Ruling can be viewed at Fejo v Northern Territory [1998] HCA 58; 195 CLR 96; 156 ALR 721; 72 ALJR 1442 (10 September 1998) https://jade.io/article/68082
JUSTICE MICHAEL KIRBY 1998 AUSTRALIAN
HIGH COURT RULING – NO-ONE BUT NO – ONE, NOT EVEN THE QUEEN COULD TRESPASS OR TAKE PROPERTY HELD IN FEE SIMPLE –
You could demand anyone attempting to trespass to get a High Court Order to over-ride Justice Michael Kirby’s order, or demand that the Police (if attending) advise the aggressor to take the matter to the High Court to obtain a valid order to over-ride Justice Kirby’s order.
Actual wording was:
Point 47: ‘‘Subject to whatever qualifications may be imposed by statute or the common law, or by reservation or grant, the holder of an estate in fee simple may use the land as he or she sees fit and may exclude any and everyone from access to the land.
and;
Point 93: ‘‘It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination”.
GEORGE v ROCKETT [1990] HCA 26; (1990) 170 CLR 104 (20 June 1990)
Warrant was issued to the Police, to enter premises and investigate information in documents which were in a solicitor’s office. The solicitor appealed to the High Court, the warrant was found to be invalid, and he won the case with costs.
“It is the duty of a justice before issuing….a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters mentioned in S711 of the Criminal code and that those grounds are reasonable.”
“What is required by the law is that the justice of the peace should stand between the police and the citizen, to give real attention to the question of whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen and the inviolate security of his personal and business affairs.”
“When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce a state of mind in a reasonable person.”
In Feathers v Rogers, Justice Simpson stated that the complaint must exist as a sworn oath, otherwise the statements made in the complaint are immaterial. A sworn oath would be in an affidavit form verified by oath or affirmation.
Suspicion without proof is not enough for a warrant to be issued.
NSW v IBBETT [2006] HCA 57; (2006) 231 ALR 485; (2006) 81 ALJR 427 (12 December 2006)
Police entered the home of a lady chasing her son. Weapons and threats were used by the police. Mrs Ibbett was awarded exemplary damages against the police involved. The Police appealed and lost with costs.
‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”
“The common law fixes by various means a line between the interests of the individual in personal freedom of action and the interests of the State in the maintenance of a legally ordered society. An action for trespass to land and an award of exemplary damages has long been a method by which, at the instance of the citizen, the State is called to account by the common law for the misconduct of those acting under or with the authority of the Executive Government.”
Lord Devlin in Huckle v Money stated: “the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service.”
HALLIDAY v NEVILL [1984] HCA 80; (1984) 155 CLR 1 (6 December 1984)
Police noticed an unregistered driver back out of his driveway. When approached he ran back onto his property,
the police entered and arrested him. The police were found to have trespassed and the Police appeal was dismissed
with costs, in the High Court.
BRENNAN J. “This case is about privacy in the home, the garden and the yard. It is about the lawfulness of police
entering on private premises without asking for permission. It is a contest between public authority and the security of private dwellings.”
Re Titles:
PIRIE v REGISTRAR-GENERAL [1962] HCA 58 (1962) 109 CLR 619 (30 November 1962)
The registered proprietor of the land asked the Registrar- General to cancel a notification on their certificate of title and the RG refused. The High Court ruled in the land owner’s right.
“….it seems to me that it is not for the Registrar-General to decide whether an entry should be cancelled because it was not authorized by s. 88(3) and then to act upon his own decision,……”
“It follows, I think, that the Registrar-General whose duty it is to put no unauthorized entries in the register book is under a corresponding duty to remove any that ought not to be there.”
“………the Registrar-General had, in effect, refused – and refused improperly – to issue to the applicant a certificate of title under the Act.”
See also the Sanchia R page for the ROMANI v NEW SOUTH WALES
Romani v State of New South Wales [2023] NSWSC 49 (pdf)
and https://www.thecommonwealthofaustralia.com.au/revoke-implied-right-of-entry/
Add to relevant documents:
Revocation of Implied Right of Entry
Revocation of Implied Right of Entry to property x Blacksville Street, Blacksville.
Any and all Implied Right of Entry is hereby removed, trespass damages apply pursuant to the No Trespass sign on that property. No Lawful Right Of Entry without a lawfully executed, valid in law warrant of the King’s process.
Fejo v Northern Territory (1998) HCA 58; 195 CLR 96; 156 ALR 721; 72 ALJR 1442
Plenty v Dillon (1991) 171 CLR 635
Romani v State of New South Wales (2023) NSWSC 49
No Trespass sign
TRESPASS-NOTICE on the right (pdf)
PMA Members can download artwork for a simple “PMA Members Only” No Trespass gate sign.
Additional signage options
TrespassSignGold (2 on an A4 pdf, same as below but 32oz gold)
TrespassSign100k (2 on an A4 pdf, as below, $100,000)
