Law and the Legal Consequences Polly and Grace

Question: Discuss about the Law and the Legal Consequences Polly and Grace. Answer: Issue Whether Frank committed trespass on Graces land Whether Polly is personally liable to get her sheep back from Frank Law The term trespass refers to a direct, wrongful negligent or intentional interference with the interest of another person or the persons integrity. The interests of the person include the possession or ownership of goods or lands. Intentional torts may be committed against the personal property of any person. Personal property refers to any moveable property including goods or chattels[1]. The following are the three kinds of individual torts that include trespass to personal property: Conversion- it is applicable when the goods have been completely destroyed; Trespass to goods or chattels- it is applicable when the interference with the goods did not cause damage to the goods; Detinue- it refers to the wrongful detention of the goods; The trespass to goods takes place when the defendant intentionally and directly interferes with the goods that are in the possession of the plaintiff at the time of committing such interference as was held in Penfolds Wines Pty Ltd v Elliot [1946] 74 CLR 204. The person who is in the actual possession of the goods at the time of the interference shall be entitled to bring a legal action against the wrongdoer[2]. As mentioned earlier that detinue is the detention of the goods in a wrongful manner. A legal action against detinue shall lie if the goods are wrongfully detained and a demand for returning the goods has been made. Therefore, the prerequisites for bringing an action on the grounds of detinue are wrongful detention of goods; demand for such goods and a refusal to return the detained goods[3]. Detention of goods In case goods are wrongfully detained, the defendant must possess the goods for some time; however, the goods need not be in the possession of the defendant at the time when the demand for returning the goods is made[4]. Moreover, besides possessing another persons goods without the permission of such person, the defendant must have an intention to keep the goods against the rights of the owner of such goods. Demand and Refusal In Egan v State Transport Authority [1982] 31 SASR 481, it was held that the demand for the return of the goods need not be in writing, an oral demand is sufficient and valid, however, the demand must be unequivocal and it must clearly provide instructions to return the goods. The refusal of the defendant must be unreasonable and unequivocal. A defendant shall also be held liable in detinue in the event of an unintentional or innocent loss of such detained goods as was observed in John F Goulding Pty Ltd v Victorian Railway Commissioners [1932] 48 CLR 157. The defendant may exempt his liabilities if it is established that the detention was unintentional or adequate care has been taken care of such goods. Further, the defendant may after receiving such demand for returning the goods, request time for confirming the authenticity of the rights of the claimant[5]. The intentional interferences with land are also actionable under the torts law. In Plenty v Dillon [1991] 171 CLR 635 it was held that trespass to land takes place when there is an intentional and direct interference with the real property of any person without permission or consent, where such property is in exclusive possession of the person. In order to bring a legal action against trespass to land the plaintiff must establish the following requisites: Possession- it is imperative that the land is in exclusive possession of the plaintiff, which implies that the plaintiff has a contractual right to occupy the land and has the right to exclude others from the possession of the land. Land (subject matter) the tort of action is concerned with the direct interference with the land. Land includes factory, house or any equipment that is permanently attached to the crops, land and airspace. Direct Interference- in order to establish tort of trespass to land, there must be a direct interference of the defendant. A person may commit trespass against the land of a person in the following five ways. Where there is no authority to enter at all, a person may commit trespass by entering into the premises. Erection of any building may be treated as an unlawful entry to the land where such erection amounts to trespass. Where an authority to enter exists but such entrance is restricted to specific purpose and entry for other purpose shall amount to trespass. Where a person has entered under license but such person refuses to leave after the expiry of the license. If a person enters into a land and thrusts any objects onto the land without authorization or lawful consent, shall commit a trespass to land. If a person enters onto a land with the consent of the person in possession of the land does not amounts to trespass. Consent may be express, implied, or authorized by law. Express permission exists when a person in possession of land permits another person to enter into the land for a specified purpose[6]. If the license enters into the land for a different purpose other than the purpose permitted by the plaintiff, the licensee shall be held liable for committing trespass as was held in Barker v R [1983] 153 CLR 338. Application In the given scenario, Polly asks Grace to look after her sheep for two months and allow them to graze in the far back paddock. Grace instead, moved them with her with other petting zoo animals. Franks bespoke-bred sheep were stolen a year ago. When Ethan showed him the pictures of the sheep in Graces petting zoo, he was shocked to see that the sheep looked identical to his missing bespoke-bred sheep. He was convinced that they were his missing flock and entered into Graces land and stole all the 10 sheep from the petting zoo. Here, Frank entered into Graces land without her permission with the intention to steal the sheep from her petting zoo. His conduct amounts to trespass to land as well as detinue. Detinue is the wrongful detention of goods of other person who has exclusive possession over the goods. In order to bring an action on the grounds of detinue, the plaintiff must establish that the requisites of detinue have been fulfilled. The requisites of detinue are wrongful detention of goods; demand for such goods and a refusal to return the detained goods as was held in Egan v State Transport Authority [1982]. In the given case, Frank has wrongfully detained the flock that was in the actual possession of Polly without her consent or any lawful authorization. Polly demanded Frank to return her flock within 7 days otherwise; she would bring a legal action against him. Frank refused to return the sheep on the ground that he is waiting to confirm the ownership of the flock from Biosecurity Queensland. However, the defendant may exempt his liabilities if it is established that the detention was unintentional or adequate care has been taken care of such goods. Further, the defendant may after receiving such demand for returning the goods, request time for confirming the authenticity of the rights of the claimant[7]. Here, Frank may use the defense that he has taken adequate care of the sheep. Regarding the refusal for returning the sheep to Polly, he may exempt his liabilities on the ground that he was waiting for the confirmation of the ownership of the flock until then he cannot return them. Further, in this case, with respect to Ethans liability for committing trespass on Graces land, Grace has permitted the public with a free entry to enjoy her petting zoo and the grounds of her property on the condition that smoking, alcohol and photography on her land was strictly prohibited. However, Ethan was caught drinking whisky and taking photos by the eco pond. Grace had caught Ethan and asked him to leave many times before on the ground of drinking and clicking photos. In this case, Ethans conduct amounts to trespass to land because when a person enters onto the land of another person who is in an exclusive possession of the land, without any lawful authority or consent of such person, the person entering is said to have committed trespass to land. Grace was in exclusive possession of the land and has given express consent to public to visit her petting zoo and garden, situated on her land with the condition that smoking, alcohol and photography is prohibited. However, when the licensee is allowed to enter the land of another person for specific purpose but he enters for another purpose, the person so entering is liable for committing trespass to land. However, Grace can revoke her permission at any time she wants and prohibit Frank from entering onto her land instead of merely relying on her intention to exclude him from her land. Frank may use the defense of contributory negligence stating that Grace has caught him many times but never stopped hi m from entering the premises. Conclusion Ethan has committed trespass to land and the Polly may recover her flock after the confirmation of the ownership of the flock. However, Grace may be entitled to compensatory damages for the loss of her earning capacity and Grace may be entitled to nominal damages for infringement of her rights to her land. References Barker v R [1983] 153 CLR 338 Beever, Allan.A Theory of Tort Liability. Bloomsbury Publishing, 2016. Bermingham, Vera, and Carol Brennan.Tortlaw directions. Oxford University Press, 2016. Ciocchetti, Corey. "7 Things You Need to Know About: Torts (Lecture Slides)." (2015). Egan v State Transport Authority [1982] 31 SASR 481 John F Goulding Pty Ltd v Victorian Railway Commissioners [1932] 48 CLR 157. Li, Xiang, and Jigang Jin. "Tortious Act and Tort Liability."Concise Chinese Tort Laws. Springer Berlin Heidelberg, 2014. 11-21. Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."Precedent (Sydney, NSW)130 (2015): 15. Penfolds Wines Pty Ltd v Elliot [1946] 74 CLR 204 Plenty v Dillon [1991] 171 CLR 635 Steele, J., and Tort Law. "Text, Cases and Materials." (2014). Stickley, Amanda. "The importance of intention."Australian Civil Liability13.7 (2016): 104-106. Stickley, Amanda. "The importance of intention."Australian Civil Liability13.7 (2016): 104-106. Ciocchetti, Corey. "7 Things You Need to Know About: Torts (Lecture Slides)." (2015). Bermingham, Vera, and Carol Brennan.Tortlaw directions. Oxford University Press, 2016. Mullins, Gerard, and Susan Griffiths. "Intentional torts and the civil liability legislation."Precedent (Sydney, NSW)130 (2015): 15. Beever, Allan.A Theory of Tort Liability. Bloomsbury Publishing, 2016. Li, Xiang, and Jigang Jin. "Tortious Act and Tort Liability."Concise Chinese Tort Laws. Springer Berlin Heidelberg, 2014. 11-21. Steele, J., and Tort Law. "Text, Cases and Materials." (2014).