Knock, Knock, Who’s Trespassing? When is Your Implied Licence to Enter Land Revoked?

In the recent decision of Cosenza v State of South Australia [2024] SASC 97 police officers attempting to serve summonses were found to have unlawfully trespassed when doing so.

Facts

Following an arrest, members of South Australia Police attended Mr Cosenza’s home on four occasions in May and July 2015 to serve court summonses. Throughout this time, a sign was attached to a pillar of the front boundary fence of Mr Cosenza’s property. That sign indicated that entry to his premises was forbidden, except by express invitation, and revoked the implied licence for police to enter his premises without lawful authority. The sign was intended to convey that police or any other visitors did not have the right to enter his premises without permission​.

An implied licence is a common law legal concept that allows anyone, including police officers or other authorities, to enter private premises without the express permission of the owner, provided it is for a lawful and generally accepted purpose. For example, visitors, delivery persons, or police officers typically have an implied licence to approach a person's front door and knock to deliver messages, seek assistance, or conduct other ordinary tasks. This licence is "implied" by the actions of the owner of the premises, such as leaving a gate or door open, and it is assumed that reasonable, non-intrusive entry is permitted unless expressly revoked.

Mr. Cosenza brought a civil claim against the State of South Australia, alleging that each of the police visits to his premises(to serve the summonses) constituted a trespass because, by the sign, he had revoked their implied licence to enter.

Decision

Justice McDonald, sitting in the Supreme Court, accepted that the signage was clear and specific, making it known that entry to his premises was prohibited without express consent.

Accordingly, she noted that once the SAPOL officers became aware that the implied licence had been revoked, their entry onto the premises for the purpose of serving the summons amounted to a trespass. It should be noted that police officers do not have any express statutory authority to enter a premises for the purposes of serving a summons.

Justice McDonald found that the four occasions on which SAPOL sought to serve summons and entered Mr Cosenza’s premises amounted to individual instances of trespass. Mr Cosenza was awarded $10,000 per trespass, which resulted in an aggregate award of $40,000 in compensation.

Take Home Messages

Council authorised officers and persons operate under multiple different pieces of legislation, some of which provide express statutory authority to enter a premises for the purposes of carrying out their statutory functions. In such cases, they are not relying on any implied licence to enter a premises, but should be clear on the authority being relied upon and the purpose for reliance on that authority.

In other circumstances, officers should be aware that occupiers of premises can revoke the common law implied licence to enter their premises either by having a visible sign at the premises, by verbal revocation or by physical barrier (e.g. closed gates). In such circumstances, absent any statutory authority or warrant to enter the premises, entry may be unauthorised and could amount to trespass and an adverse award of damages.

Where possible, authorised officers should undertake reasonable enquiries to inform themselves of any prior history and potential restrictions prior to attempting entry to a particular premises. The use of body worn cameras or keeping detailed notes of the reasons for entry to premises may assist should an occupant make a claim of trespass.

Should you wish to discuss any of the matters raised in this article, please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au, Dale Mazzachi on +61 8 8210 1223 or dmazzachi@normans.com.au or Michael Woon on +61 8 8210 1249 or mwoon@normans.com.au.