Where P came into possession wrongfully, D may claim a defence of jus tertii (per Wilson v Lombank) if

D committed the act in question on the authority of the person rightfully entitled to possession of the goods
D is defending the action on behalf of, and by the authority of, the person rightfully entitled to possession of the goods.

This defence will not apply where

D took the goods from the actual/constructive possession of P and later returned them to the true owner (Wilson v Lombank)
Where P’s claim is based only on a RTIP of the goods and it can be shown that someone else had better title to the goods.

If P has actual or constructive possession of a good, D may plead jus tertii only if

D is defending the action on behalf of and by the authority of the person rightfully entitled to possession of the goods

If P has a RTIP

If P has a right to immediate possession, D may plead jus tertii in any case where a third party has a superior possessory interest to P except:

D may not rely on jus tertii if he/she is a bailee of goods, with regard to a claim made in conversion by his/her bailor, unless
- D committed the act of conversion in the first place on the authority of the person with the superior possessory interest (eg the true owner)
- D defends the action in court on behalf of and by the authority of the person with the superior possessory interest (eg the true owner)
- D has already made satisfaction to the person with the superior interest by returning the goods to him/her.

Consent (land)
Consent will be a defence to a claim of trespass to land if D can show that he/she had a licence to enter onto the land, that the acts done by him/her on the land were permitted within the scope of the licence and that the licence had not been revoked before the acts were done.
Is there a licence?
The licence may be express implied Unless there has been an express or implied preclusion or revocation, or there is a locked gate/obstruction in the path, the law will imply a licence granting entry to a driveway or pathway leading to the entrance of a house by any member of the public for any legitimate purpose that in itself involves no interference with the occupier’s possession nor injury to the occupier, his/her guests or his/her property (Halliday v Neville). Stepping onto land to avoid an obstruction or recover property that has fallen or been blown onto land is within that licence (Halliday). There will generally be an implied licence to the general public allowing them to enter a place of business during business hours to inquire about or do business (Lincoln Hunt v Willesee). The implied licence, unless revoked, gives police power to go onto land to arrest someone (Halliday v Neville).
Are the acts done by D within the scope of the licence?
Where the licence is express, D is able to do on the land only what the licence terms permit. Implied licences Where there is an implied licence to enter, the implied invitation must be analysed to decide if the licence is for limited purposes; an entry unrelated to those purposes will be a trespass from the moment of entry (Lincoln Hunt v Willesee; also Rinsale Pty Ltd v ABC). An injunction (eg restraining publication of film) can only be granted against a party if a substantive cause of action (eg trespass in obtaining the film) can be brought against that party (ABC v Lenah Game Meats).
Was the licence revoked before D did the act/s?
P may argue that he/she revoked the licence before D’s act. For a revocation to be effective, it must Be brought to D’s attention Allow D a reasonable amount of time to leave P’s land and take whatever property he/she brought with him/her in pursuance of the licence (Cowell v Rosehill Racecourse).
CONCLUDE ON DEFENCE

D may argue that P has ‘come to the nuisance’ by [….]

While it is no defence to claim that the plaintiff effectively exposed himself to the nuisance, pleading that the plaintiff has ‘come to the nuisance’ may affect the remedy P receives [for example, awarding damages in lieu of an injunction instead of an injunction] (Miller v Jackson).

D may argue he/she/it has a defence of statutory authorisation; the following two requirements must be shown.
Duty
The legislation must imposes a duty on (not simply permit) D to perform a particular act (Lester-Travers v City of Frankston).
...

#7157 - Specific Defences - Torts A

About Oxbridge

More Torts A Samples