Rumble v Liverpool Plains Shire Council

The Cases arises

Rumble v Liverpool Plains Shire Council [2012] NSWDC 95

5 July 2012 – District Court of NSW – Mahony SC DCJ

The Plaintiffs, Mr and Mrs Rumble, were the occupiers of residential premises at Quirindi together with their five children. Over the course of two days in August 2009, Liverpool Plains Shire Council (“the Council”) by its employees and agents, entered the premises of Mr and Mrs Rumble, and removed a number of damaged and derelict cars and various car parts.

The Plaintiffs claimed damages for trespass to their property against the Council, officers of the Council, its sub-contractors and the State of New South Wales (together “the Defendants”). The Plaintiffs claimed aggravated and exemplary damages in respect of the trespass. In addition, the Plaintiffs sought damages for the seizure and removal of their property.

The Defendants conceded a trespass to the Plaintiffs’ land. However, they submitted that only nominal damages should be awarded as there was no damage sustained by the Plaintiffs. The Defendants also resisted any order for aggravated or exemplary damages.

The individual defendants relied on the indemnity provided under the Local Government Act 1993 (“the LG Act”) as they were carrying out duties on behalf of the Council and those duties were carried out in good faith.

The unauthorised entry to the premises was purported to be in reliance of an order under section 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). 

The Purported Order

During the course of 2009, Council’s officers had been attending the Plaintiffs’ premises and investigating the unauthorised use of residential premises as a caryard or junkyard. This included the storage and keeping of numerous vehicles and parts in varying states of repair. In July and August 2009, Council’s officers issued various Notices of Intention to Issue an Order under section 121B of the EP&A Act.

On 12 August 2009, Council’s officers issued an order that required the removal of all unregistered vehicles within 12 hours of the order. The order stated that the period for any appeal of the order must be made within 48 hours of the order.

The Plaintiffs submitted that the order was invalid as the statement of reasons was deficient and the period for compliance was inadequate. Further, it was submitted that the person who signed the order on behalf of the Council did not have delegated authority.

The Defendants did not challenge the asserted invalidity of the order.

The Trespass

On the morning of 13 August 2009, two Council officers attended the Plaintiffs’ premises together with two police officers. When the Council officers were refused entry to the premises, one of the Council officers used a bolt cutter to cut the chain locking the front driveway gate.

Attached to the front driveway gate and other gates to the property, was a sign that stated “… ADMITTANCE BY INVITATION ONLY OR TRESPASS APPLIES”.

It was not in issue that the Council officers were asked to leave the property on no less than three occasions.

Over the course of two days, Council’s officers, aided by sub-contractors with tow trucks and trailers removed a total of 56 vehicles as well as various car parts.

Damages

The Court found that the trespass was not of a trifling nature such as to warrant nominal damages as it involved entry to land against the express wishes of an occupier who had a right to exclusive possession and quiet enjoyment. The Court held that the trespass was extensive and involved numerous Council officers, sub-contractors and police officers entering the property to remove the vehicles.

The Court ordered damages to each of the Plaintiffs in the amount of $10,000.00.

In relation to the claim for aggravated damages, the Court noted that the Council’s officers acted in a high-handed manner towards the Plaintiffs. The Court found that the Council was reckless as senior staff were prepared to issue orders that led to the unauthorised entry without legal advice of their position or entitlements.

However, the Court noted that the Plaintiffs were continuing a non-compliance with planning laws and that the Plaintiffs did not suffer indignity, embarrassment or outrage to an extent that would warrant an award of aggravated damages.

In relation to exemplary damages, the Court noted that the Council acted in direct contravention of the EP&A Act in trespassing on residential property, which would normally require a Court order or a search warrant. Again, the Court noted the recklessness of Council’s senior staff and that the conduct in carrying out the trespass was egregious.

The Court held that it was necessary to mark its disapproval of the conduct and deter the Council (and others) from repeating such conduct by awarding exemplary damages. Exemplary damages in the amount of $10,000.00 were awarded to each of the Plaintiffs.

Finally, the Court awarded damages of $12,500.00 to each of the Plaintiffs for removal and disposal of the vehicles and parts.

Immunity for Council’s Officers

The individual Defendants, being the Council’s officers as well as its sub-contractors, relied on the immunity from personal liability pursuant to section 731 of the LG Act.

The Court noted that the test of whether a person acted in good faith was a subjective one. The Court held that the individual Defendants’ acts of trespass were done in good faith and under the direction of senior staff. This immunity extended to senior staff notwithstanding the Court’s comments regarding the high-handed and reckless nature of the trespass.

Hang  on – what about  

Thou Shalt Not Steal
Thou Shalt Not Bear False Witness Against Thy Neighbour
Thou Shalt Not Covet Thy Neighbour’s Ox or ASS or Assets$$$$

Nuremberg Principles  

Principle IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

For enquiries about this case please contact Peter Jackson or Andrew Simpson.

Pikes & Verekers Lawyers

Level 2 DX 521 Sydney E info@pvlaw.com.au

50 King Street T 02 9262 6188 W http://www.pvlaw.com.au

SYDNEY NSW 2000 F 02 9262 6175

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