Amstad v Brisbane City Council (No 1) [1968] Qd R 334

In Amstad v Brisbane City Council (No 1),¹ a council employee entered the premises of the plaintiff contrary to council ordinances. The Supreme Court of Queensland held that entry upon the land could not be justified by any implied license.

COURT: Supreme Court of Queensland (Lucas J).

PARTIES: Amstad (Plaintiff); Brisbane City Council and Ward (Defendants).

FACTS:

1. Ward, an authorised officer of the Brisbane City Council, entered Amstad’s land through a locked gate.²
2. Ward requested Amstad remove her car that was on the footpath and obstructing a drain construction on the street.³ Ward did not ask permission to enter the plaintiff’s land.⁴
3. Both the Council and Ward were sued for damages for trespass to land.⁵

ISSUES:

Whether Ward’s entry onto the plaintiff’s land could be justified by any implied license? On the assumption that the entry upon the plaintiff’s land was unlawful, what damages?

COMMON LAW:

TRESPASS TO LAND: CONSENT AND IMPLIED LICENSE

To be an actionable trespass to land, the interference with the plaintiff’s possession of land must be unauthorised or without consent: Lord v McMahon [2015] NSWSC 1619.⁶ If a person who enters the plaintiff’s land has the plaintiff’s consent or implied license to do so, there will be no trespass: Woodley v Woodley [2018] WASC, 333.⁷

DECISION AND ORDER:

It was held that Ward’s entry upon the land could not be justified by any implied license (Lucas J).⁸ The council employee entered the plaintiff’s premises contrary to the council ordinances. The gate was locked against the defendant; he did not ask for any permission from the plaintiff to enter.⁹ Exemplary damages for trespass was awarded to the plaintiff in the sum of $1000,00.¹⁰

RATIO DECIDENDI:

Entry onto private land by a council officer (or any person) constitutes trespass to land where it is unauthorised and without the occupier’s express or implied consent/license, even if the entry is made for the purpose of enforcing or addressing a public matter (such as requesting removal of an obstructing vehicle from a footpath adjacent to council works). No implied license arises merely from the officer’s official position, the nature of the request, or council ordinances/authority—particularly where the entry is through a locked gate and no permission is sought.

LEGAL SIGNIFICANCE:

The case of Amstad v Brisbane City Council (No 1) [1968] Qd R 334 illustrates the strict limits on implied licenses in the tort of trespass to land, especially for public officials or council employees.

FOOTNOTES:

1. Amstad v Brisbane City Council (No 1) [1968] Qd R 334 (‘Amstad’). ↩︎
2. Ibid. ↩︎
3. Ibid. ↩︎
4. Ibid. ↩︎
5. Ibid. ↩︎
6. Lord v McMahon [2015] NSWSC 1619, [148]–[149] (Slattery J). Slattery J at [143] cited Plenty v Dillon (1991) 171 CLR 635, ‘A person who enters the land of another must justify that entry by showing that he or she has entered with the consent of the occupier or otherwise had lawful authority to enter the premises’, 647 (Gaudron and McHugh JJ). ↩︎
7. Woodley v Woodley [2018] WASC, 333, [71] (Tottle J). ↩︎
8. See Amstad (n 1). ↩︎
9. H Luntz et al, Torts: Cases and Commentary (LexisNexis, 8th ed, 2017). ↩︎
10. Amstad (n 1). ↩︎