Pitt v Baxter [2007] HCATrans 627 (24 October 2007)

Last Updated: 1 November 2007

[2007] HCATrans 627

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P23 of 2007

B e t w e e n -

CHRISTOPHER JAMES GEOFFREY PITT

Applicant

and

TIMOTHY BAXTER

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 2.17 PM

Copyright in the High Court of Australia

MR L.C. CARTER: May it please the Court, I appear for the applicant. (instructed by Aboriginal Legal Service of Western Australia (Inc))

MR G.T.W. TANNIN, SC: May it please the Court, I appear for the respondent. (instructed by State Solicitors Office)

GLEESON CJ: Yes, Mr Carter.

MR CARTER: Thank you, your Honours. The applicant, in my submission, had the basic right to tell the police to leave his property. By remaining, the police became trespassers. If that is right, his convictions must be set aside.

GLEESON CJ: The charge against the applicant was of hindering the police, is that right?

MR CARTER: And resisting, your Honour, that is correct.

GLEESON CJ: In what did the hindrance lie?

MR CARTER: The hindrance was in telling the police to leave the property. The resisting was then in a struggle that ensued when the police went to arrest him.

GLEESON CJ: It seems to be common ground that you are hindering the police if you tell them to clear off.

MR CARTER: Yes, which we say, with respect – what is common ground, your Honour, is that if the revocation of the implied licence was valid, the police became trespassers and the convictions must be set aside. That appears at application book page 31 paragraph 4 where the court below conveniently narrowed the ambit of the dispute.

GLEESON CJ: Yes. At all events, whatever might be the ambit of the concept of hindering, it seems to be common ground that the issue is the issue of whether the police were trespassers.

MR CARTER: Your Honour the Chief Justice’s question draws attention to the fact that it is in fact the exercise of revocation that founds the hindrance which, in my respectful submission, only needs to be said to draw attention to the fact that it is a matter requiring the attention of this Court. The single ground of appeal in the draft notice at page 41 of the book impugns the reason for the decision of the court below, that is, the basis upon which the court decided against the applicant. That reasoning is to be found most particularly in the reasons of her Honour Justice Wheeler at page 35 of the book, paragraph 16:

it is sufficient to dispose of this case to conclude that there was no ability in the appellant to revoke the implied licence granted by all the other tenants in common.

Taking your Honours then to a passage that appears at the conclusion of the judgment where her Honour Justice Wheeler adopts the conclusion of the primary judge, I take that as the focus for today’s purposes because, in my respectful submission, the errors of principle can be amply demonstrated by reference to it. The first, your Honours, is this. The court below holds that the revocation of the implied licence by the applicant in this case is not supported by the reasoning of this Court in Halliday. In my respectful submission, that is wrong.

The majority of this Court in Halliday, decided in 1984, held that in the absence of contrary indication there is an implied licence as a matter of law for police to go upon driveways of suburban homes to question trespassers or lawful visitors. The majority said at page 8 of the judgment, which is behind tab 1 of the book helpfully provided by the respondent, that this conclusion was supported by both common sense and public policy.

Critically, your Honours, in reasoning that there was no basis for excluding on-duty police from the scope of implied licences given to members of the public, the majority’s decision stressed as a quid pro quo, if you like, the importance of the revocability of such licences by occupiers. If I could take your Honours briefly to two passages in the majority reasons in Halliday behind tab 1, first of all at page 7 at about point 4. It is a very long paragraph:

Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.

Secondly, at page 8, point 5:

The conclusion which we have reached is that common sense, reinforced by considerations of public policy, requires that that question be answered in the affirmative. That conclusion does not involve any derogation of the right of an occupier of a suburban dwelling to prevent a member of the police force who has no overriding statutory or common law right of entry from coming upon his land.

HAYNE J: How do you seek to apply that proposition to the case of multiple occupiers in common?

MR CARTER: In my respectful submission, your Honour, the applicant was entitled to the physical possession of the common driveway. He was an occupier, he had power to revoke the implied licence.

HAYNE J: There is the area for debate.

MR CARTER: Yes.

HAYNE J: If he had the power that he did, everything tumbles over, but if the licence is the licence of all, which seems to be the proposition established by Halliday, can one revoke?

MR CARTER: Your Honour, can I endeavour to answer you this simply and part of it goes to a latter aspect of the argument. By reference to Bradbrook, deleting text, in the reasons below at page 33 of the book, paragraph 9:

The nature of the interest of a tenant in common is that each tenant holds a distinct yet undivided share of the property, with each tenant in common being entitled to physical possession of the whole land.

The applicant as one of those had a right to possession and thus, in my respectful submission, Halliday was engaged and he had a right to revoke the implied licence because there was on the evidence in this case no competition, no competing interest. This is not a case like the State of New South Wales v Koumdjiev where the Court of Appeal faced in difficult circumstances a situation of an express permission colliding, if you like, with an express revocation.

It is interesting to go back to the way this case has now been through three levels, but the notion of strata titles or of common property having anything much to do with the basic principle was not there at the beginning. The argument was simply, he cannot revoke without the consent of the others and, in my respectful submission, how could that be? Is he meant to call a meeting?

HAYNE J: If it is so, and I do not know whether it is so, it is something that inheres in the nature of his interest as being in common. That is the area for debate, I would have thought.

MR CARTER: The submission is that, granted of course that Halliday did not expressly concern the common property scenario, it would make a very significant caveat to the State of the way the majority judgment 23 years ago sought to balance issues of State authority, public authority versus security of private dwellings if what was added as a qualifier to the passages that I have taken your Honours to by dint of the judgment below is, except that in the case of common property a tenant in common is prohibited from revoking an implied licence without the consent of the others.

It is difficult, your Honours, and attention needs, in my respectful submission, to focus at the outset more clearly on what the legitimate purpose of entry was. Once that task is undertaken, the fact that there can be no suggestion of any interference with the rights of the other tenants in common is illuminated, that is, in this case the police came for what was accepted to be the legitimate purpose of making inquiries of the applicant’s cousin who had in fact driven on, as your Honours understand from the facts which are common ground, to the applicant’s private driveway, the police then forming an L-shape of his car on the common driveway.

Can I come back to the passage that I was taking your Honours to at page 37 of the book. The second area of principle contained in the reasoning below is the holding that revocation of the implied licence by the applicant is inconsistent with the rights of use or enjoyment of the property of the other tenants in common. Your Honours, on the evidence, unlike Koumdjiev, for example, as I say, no other tenant in common said or did anything when the police went towards my client’s unit to speak to his cousin who had driven into his, that is, my client’s private driveway.

This is not a case, for example, of visitors entering on common driveway being impeded or of a tenant in common taking over the use of common property to the exclusion of others, which would expose him or her to an action for trespass.

GLEESON CJ: Mr Carter, what about police entry, not in the circumstances of this case, but suppose one of the tenants in common was playing a radio too loud and the police came to investigate the noise. Could that tenant in common revoke the licence of the police to come onto the driveway?

MR CARTER: Assuming that the police had no specific power, yes, on an application of Halliday, in my respectful submission. It is difficult to get away from Justice Brennan in his dissent, and it is not on point for this argument, refers to the dicta of Lord Justice Atkin about the fact that most people would not have a difficulty with police bona fide entering premises to deal with, for instance, a nuisance. That is no reason for implying a licence that can trump express revocation, if I can put it that way, your Honour.

GLEESON CJ: Put the police to one side for the moment, how do they get on in relation to things like collectors for charity? Suppose one of a group of occupants of a building says, “I’m fed up with people knocking on the door and asking for money for good causes. I hereby revoke the licence of people to come and collect for charity” and the others all say, “No, no, we’re delighted to have an opportunity to donate to worthy causes.” How do they resolve that?

MR CARTER: It is difficult and there is not a lot of authority on this. One way a court might resolve it would be to look to the sorts of principles that Justice Hodgson formulated in Koumdjiev, having reviewed some of the authorities in this area, and to ask on those facts whether the purported revocation of the licence by the person who was sick of the collectors, on your Honour the Chief Justice’s example, could revoke a licence – I am looking at page 364 of Koumdjiev which is behind tab 2 – whether:

any licence in excess of what is reasonable and incidental to one tenant in common’s possession and use and enjoyment of the property, and which prejudices the other tenant in common’s possession and use and enjoyment of the property, is a licence terminable by the other tenant in common.

That is the only sort of general test that I am aware of – and perhaps test is elevating it too highly – that has been formulated at an intermediate level in relation to dealing with issues like this, broadly speaking.

HAYNE J: Can I take you back then a stage to see if we can identify the underlying principle. The licence we are concerned with is an implied licence, is it?

MR CARTER: That is so, your Honour.

HAYNE J: It is implied by reason of the state of the premises, namely, no gates, no barriers, no doors, simply open premises?

MR CARTER: Yes, no signs, in particular.

HAYNE J: No signs. That is the decision of the group in common, is it not?

MR CARTER: That is the state of the evidence.

HAYNE J: I can see the earth moving a bit, Mr Carter, but that is the next point, is it not? That is the decision of the group in common that that should be the state of the premises?

MR CARTER: The evidence is that there are no signs up, your Honour. Whether it is a decision and, more than that, jumping one step ahead, whether anyone says there is any consequence that attaches to that that. I mean, here is a man who said, “Get off my property. I’ll give you three warnings.”

HAYNE J: The point I want to get to is that if the implication comes from the state of the property and the state of the property represents, so far as it exists, the common intention of the tenants in common, how does one act against it? That is the hard point you have to grapple with.

MR CARTER: Can I candidly concede that on a close analysis of the reasoning in Halliday as to the legal rationale and origin for the implied licence, it is, with respect, based on common sense and public policy. There is not a deeper interest that it says to arise from, in the case of police officers what happening in that area of the majority judgment at pages 7 and 8, the decision being made that there was no reason to exclude police from the scope and the court says clearly it rests on public policy.

One way of looking at the common property situation, your Honour, providing the focus is on – to be sure, Halliday required a focus on the legitimate purpose of the implied licence, no one suggests that there is an implied licence to just wander onto a common driveway to see what might be happening. An alterative analysis would be to individualise the implied licence to that which a legitimate purpose related to.

KIEFEL J: Justice Hayne’s inquiry of you really takes you back to what the group decision has been. It may be seen to be reflected in the state of the property but it nevertheless reflects a group decision. Tenants in common usually make those decisions through the legislation or the by-laws which govern their cooperative actions. So you would expect either a by-law or various resolutions which give effect to the state of the common property the placing of any signs on the common property or potentially you might find a resolution which says that no one is to come on these premises. Absent a group decision that is authorised in the way in which they can function together, it is a little difficult to see how one person can stand out and impose a point of view.

MR CARTER: Can I endeavour to answer that in two ways, your Honour. The first is that, if that is right, that dramatically undercuts the ambit and the significance of the right of revocation in Halliday in particular at page 7, “Such an implied or tacit licence can be precluded or at any time revoked”. It is not contemplated that it be narrowed. It should not be contemplated as a matter of policy that it be narrowed to decisions in advance.

KIEFEL J: No. It is not to say that it cannot be revoked. The question is, how is it revoked?

MR CARTER: It was revoked here by the person who told the police to leave.

GLEESON CJ: Halliday establishes, does it not, there is no difference in principle between policemen and milkmen?

MR CARTER: Yes.

GLEESON CJ: Suppose one of the occupants of common property says, “I want a milkman to come and deliver my milk”, and the others say, “Haven’t you been to a supermarket lately? Why would anybody need a milkman?” They disagree between themselves on that, but can one of them say, “No milkman up our footpath”?

MR CARTER: Yes.

GLEESON CJ: So one of them could post up a sign saying, “Milk vendors keep out”?

MR CARTER: I am not sure about that, your Honour, but can I come back to this case. The reasons of the learned magistrate which stand uncorrected at page 12 of the book are that there was, as your Honour’s questions indicate, no sign up and therefore a reasonable common sense view is that there was no consent to exclude the police. In my respectful submission, that takes Halliday far too narrowly in terms of the power to revoke an implied licence. It creates a situation where a person who is, for example, a tenant in common with access to common property has much less right to his privacy vis-a-vis in this case agents of the State than a person who happens to live in their own house with one driveway.

GLEESON CJ: I think in a number of respects people who live as tenants in common property have less privacy than people who live in a single dwelling house.

MR CARTER: But, your Honour, on this aspect of the argument the complaint is that there is practically, realistically speaking, to take the common sense viewpoint as Halliday insist, there is no competing interest. There is no other tenant in common saying, “No, we want the police to be there”. It is not a case like Koumdjiev.

GLEESON CJ: Now, that is a question. Do you ask whether there is another tenant who has an interest in saying, “We don’t want these police to be there on this occasion for this purpose,” or do you ask whether the other tenants have an interest in saying, “We want this to be accessible to the police”?

MR CARTER: No. In my respectful submission, this is part of the difficulty with the situation of putting a sign up, that it means that the law would require of groups a blanket decision, whereas it might be that 95 per cent of the time half the tenants in common do not have an issue with, for example, police coming onto the property. It has to be approached on an individualised basis.

GLEESON CJ: They might have a powerful interest in favour of police coming onto the property for certain purposes.

MR CARTER: They might, your Honour, but the important thing about Halliday – and, in my respectful submission, it is undermined by the judgment below – is striking that balance by having the power to revoke an implied licence. If your Honours are still looking at page 12, the learned magistrate – again, this remains uncorrected – stated:

In this case the only steps taken were those of the Accused who told the police on three occasions accompanied by colourful language.

In my respectful submission, colourful language is obviously an irrelevancy. The fact is it was a valid revocation of his implied licence if there be error in the rest of the reasons.

HAYNE J: It was not cast in terms of, “I hereby revoke”.

KIEFEL J: You keep talking about tenants in common but, as Justice Wheeler pointed out, the communal driveway here is part of the property that is dealt with by the unit holders under the Strata Titles Act and they deal with common property by reference to by-laws which are passed by voting. That is how you revoke licences. It is dealt with by legislation. It is not dealt with by individuals acting.

MR CARTER: Your Honour, the situation in this case is that the court below does not rest its judgment on the Strata Titles Act. That is the first thing. It rests on the common law - - -

KIEFEL J: Justice Wheeler has pointed that out. I mean, there is no by-law in existence here to revoke the licence, but that is obviously how one would go about revoking a licence, is it not?

MR CARTER: Your Honour, if that is right, it means that in this scenario there is no capacity to revoke on the spot.

KIEFEL J: There might be a good reason for that.

MR CARTER: Your Honour, if there is a good reason for it, it is one which requires considerable qualification and.....of the fundamental striking of interests in Halliday v Neville. Your Honours, I see that the light is on. I rely on the written submissions. In my respectful submission, this case is a good vehicle and it is the sort of issue that deserves the attention of this Court it involving an issue of fundamental property rights.

GLEESON CJ: Thank you, Mr Carter. Yes, Mr Tannin.

MR TANNIN: May it please the Court. The police, it was accepted at trial at the first appeal and the second appeal, entered the common property under an implied licence for the legitimate purpose, that is, for the enforcement and execution of their powers under the Road Traffic Act. They were not merely confined to one specific part of the premises. The common property here was controlled and managed by the strata corporation, or the strata body as it is commonly known in other States, specifically for the benefit of all the proprietors. That is the reference to section 35(1) of the Strata Titles Act. The common property was not controlled by any one of the co-tenants. The applicant’s interest here as a co-tenant was not such as to privately entitle him to effectively over-manage or unilaterally revoke any of the control management situations that the strata corporation put in.

GLEESON CJ: That raises a question that Mr Carter put to us towards the end of his submissions. Suppose there is an implied licence that covers milkmen coming on to deliver milk onto the premises and suppose on a particular occasion everybody is away except Smith, who is one of the tenants in common, and suppose a particularly disgusting milkman turns up on the path, ill-dressed and unkempt in appearance and in every respect what they call an undesirable.

HAYNE J: Not wearing a tie.

GLEESON CJ: Yes. There is a sign over there on one of the bars saying “No entry without footwear”. Can Smith say to this particular milkman, “Get out” or does he have to have a meeting of the body corporate?

MR TANNIN: The body corporate controls and manages the communal property. The Strata Titles Act provides for the mechanism of control. That is sometimes an awkward mechanism. They require voting, they require minutes to be taken. That is the way it is to be done. So the common law scenario that your Honour asks is not pertinent to this case.

GLEESON CJ: Yes, but the body corporate might say, “We expressly licence collectors for charitable purposes to come on to the land”. Occasionally there are people who collect for charitable purposes who are
not necessarily people you would want on your land. How does one member of the body corporate respond to a particular situation that arises without the others having an opportunity to take part in any collective decision?

MR TANNIN: Under the Strata Titles Act the body corporate cannot make by-laws that are inconsistent with the Act. The Act then deems Schedules 1 and 2 of the Act to be part of the by-laws unless they are changed and those by-laws in Schedules 1 and 2 then provide relevantly from Schedule 1 in clause 1(2) that the use and enjoyment of the common property shall not be exercised in such a manner as to unreasonably interfere, et cetera.

So that within the by-laws themselves there is capacity to deal with the unusual milkman scenario that your Honour has put to me but that does not fundamentally change the character of the common property and the inability of one of the co-tenants simply wilfully to deny the legitimate entry that has been impliedly accepted by all.

HAYNE J: It seems to me that proposition comes to this. That the occupant of one unit can exclude the undesirable milkman/charity collector from that person’s unit but can no more exclude that person unilaterally from the common property than he or she could from the footpath outside the common property.

MR TANNIN: That is correct.

HAYNE J: That seems to be where that argument takes you, but is that where you say it ends?

MR TANNIN: That is, in fact, how each of the courts that have determined this matter so far have approached the matter. That is, in terms of the private driveway held by the applicant, it was accepted that he had absolute capacity to exclude. In terms of the common property which he did not have responsibility for, he did not. Those are my submissions. Just one more point, sir. My friend did refer the Court to the proposition that it was the exercise of the revocation which constituted the hindering. That is simply not correct.

GLEESON CJ: Thank you. Yes, Mr Carter.

MR CARTER: Just a couple of short matters, your Honour. In my respectful submission, the Strata Title Act and its equivalent or slightly equivalent pieces of legislation in other jurisdictions dealing with control management use of property, does not enter the territory of the property
right of a person in possession to revoke an implied licence. It does not deal with that.

The second point, and it is related to that, is that is why it cannot be sensibly inferred that the absence of signs is a group decision. I do not know if I dealt with the milkman question very well, your Honour the Chief Justice, but a tenant in common could not revoke an implied licence if it interfered with the rights of others. There would be that difficulty of collision, but if there was no collision, your Honours, in my respectful submission, if the decision stands, the fundamental property rights of tenants in common to revoke an implied licence is really rendered at nought. If the Court pleases.

GLEESON CJ: We will adjourn for a few minutes to consider the course we will take in this matter.

AT 2.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.50 PM:

GLEESON CJ: In this matter we think that there are insufficient prospects of success of an appeal to warrant a grant of special leave to appeal. The application is dismissed.

Do any questions of costs arise in matters like this?

MR TANNIN: We do not seek costs.

GLEESON CJ: Very well. We will adjourn the Court until 10.15 on Tuesday, 6 November 2007 in Canberra.

AT 2.50 PM THE MATTER WAS CONCLUDED