TORTS SUMMARY WEEK 5 Summary of Trespass to Goods Etc Generally protects a persons interest in goods or chattels against intentional

al interference Consists of 4 tort actions: - Trespass to goods; Conversion; Detinue; Action on the Case for Damages

Possession 1 Actual Control of something with intention to use as ones own; not necessarily full ownership.

a) The Law Protects Possession: - Armory v Delamirie (1722); Possession gave him a legal right, supported by the law against all EXCEPT the true owner. More Recently R v McKiernan [2003] QCA; 2 Possession is not only Evidence of ownership; it is effective ownership against the whole world except someone who can prove a better title. Employee or Agent 2 Burnett & Anor v Randwick City Council [2006] NSWCA Directors of company not entitled to possession of chattels owned by the company. Employee or Agent holding property on behalf of company may not be in possession.

b) Bailment of Goods 2 A Bailment involves two parties a bailor and bailee where the bailee takes temporary possession of the bailors goods until such time as he requests them to be returned. Either party can sue as one is in actual possession and the other has a right to immediate possession A bailor can sue their bailee for trespass to goods if the goods have been completely destroyed Definition in Hobbs v Petersham Transport Co Pty Ltd (1971) CLR delivery of chattel by the owner (Bailor) into possession of another (Bailee) upon express or implied promise to be redelivered ... At Will (Bailor may repossess at any time) or For Reward (Bailee paid money to use chattel. Bailor not entitled to demand property back during set period. Eg. Borrowing dvd)

TORTS SUMMARY WEEK 5 Bailment wrongfully terminated by Bailor 2 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) Action against Bailee for Repossession of truck under Hire Purchase; whilst finance Co. True owner (Bailor), the possession right was still with the Bailee. Full Value of Goods: 2 The Winkfield [1902]; Full Value of goods recoverable against wrongdoer Chain of Bailments Followmont Transport v Premier Group [1999] QCA; intermediate bailee can recover possession from sub-sub bailee. The Anderson Group v Tynan Motors [2006] NSWCA 3 AG sued TM (sub-bailees, entrusted to sell the car for AG) in conversion. Sub-bailee (TM) Cannot pass on responsibility to someone with better RIGHT to possession... TM liable for failing to take reasonable care of goods in their possession as bailees. (Duty under Bailment for Reward) Using The Winkfield: TM obliged to pay AG full market value. Breach of Bailment: Original owner DEEMED in possession due to Breach of Bailment Reglon Pty Ltd v Hill

Apart from a single exception a wrong that gives rise to a right of action in detinue also gives rise to an action in conversion. Exception is in the case of a bailee who allows goods to be lost or destroyed by carelessness in breach of their duty to the bailor Trespass is a wrong to possession; Penfolds Wines v Elliott

Trespass to Goods 4

Proof that the plaintiff was in possession of the goods at the time of the interfering act must be given; Direct Harm: A direct interference by D with a Ps possession of goods. Hutchins v Maughan [1947] VLR o directly occasioned by an act of the defendant; such as acts that make immediate contact with the goods without voluntary human intervention Intentional interference: 4

TORTS SUMMARY WEEK 5 Usually brought for wrongful, intentional interferences, though actions for reckless or careless interferences are also possible o An act is Intentional when the defendant deliberately or wilfully interferes with the goods or if the contact is substantially certain to follow from the defendants act. Intention is also created by a reckless act. o Demers v Desrorier [1926] shows that a plaintiff will succeed in an action for intentional trespass even where there has been no asportation of the goods and no actual damage Involuntary (No intention) 5 Not actionable, Everitt v Martin [1953] OR o Beale v Hayward [1960] non voluntary behaviour would not cause liability for trespass to goods Foreseeability; Onus on D to prove harm was not foreseeable. 5 National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] unforeseeable trespass will not be liable; not aware of existence of chattel and could not foresee the cable was there. o Mistake will create liability and will not make the act involuntary; ie it is not a defence to say made a mistake. No damage/harm required to be shown 5 Actionable per se

o Penfolds Wines; A mere taking or asportation of a chattel may be a trespass without the infliction of material damage. o Kirk v Gregory (1876) shows that a trespass to goods is actionable per se (no proof of actual harm) o Mere Touching - Not actionable without damage or asportation; Everitt v Martin o Cf SPAM/ EMAIL cases. In USA, unless proof of harm to capacity of server, not trespass to send emails without permission. Must be Actual and Constructive possession. 6 o Possession must be actual or constructive or the plaintiff must hold a legal right to immediate possession of goods See Penfolds Wines Pty Ltd v Elliott (1946); Re: holding of legal rights to possession.

TORTS SUMMARY WEEK 5 o Only a violation of the actual or constructive possession is acceptable; ie. Action in Trespass allowed IF Actual possession of the bailee has been disturbed (by a 3rd party). CONVERSION - Indirect and Intentional interference (Strict Liability) 6 Intentional interference with either actual possession or an immediate right to possession Action on the Case Indirect interference; Needs to be Harm (not necessarily Physical but some sort of substantial interference with title or ownership) See Hill v Reglon Pty Ltd

See Penfolds Wines: 7 Re: Things which Will and Will Not amount to conversion. Elements considered - Kuwait Airways Corporation v Iraqi Airways Co (4 and 5) [2002] 1. Ds conduct must be inconsistent with the rights of the owner or other person entitled to possession of the goods. 2. conduct must be deliberate (intentional), not accidental 3. conduct must be so extensive an encroachment on the rights of the owner etc as to exclude them from use and possession of the goods Intention 8 - can be intention to actually exercise dominion, consciously or negligently, without knowledge - Penfolds Wines There was no intention to affect ownership - NO conversion. Strict Liability OBG Ltd v Allan [2007] conversion is a tort of strict liability. Johnson Matthey (Aust) Ltd v Dascorp Pty Ltd & Ors. [2003] Knowledge not required, still liable.

BUT - Ashby v Tolhurst [1937] KB 242 8/9 Conversion must involve some Positive Action; as opposed to watching someone else do something. Example: loosing goods may not amount to conversion but delivering to wrong person might. shows that a negligent dealing with a chattel resulting in its loss does not constitute conversion unless have a positive action on part of D. Intangibles: Chose in Action eg. Domain Name Conversion NOT available. 9 - Intangible property 3 part test (page 9)

TORTS SUMMARY WEEK 5 Hoath v Connect Internet Services [2006]; conversion not available for intangible property: citing Penfolds Wines; There can be no conversion for a chose in action...subject matter of an action in conversion must be ...capable of possession. For example - Money in bank: no property in any such sum Must be something you can touch

Negotiable Actual possession of the goods is sufficient title to sue in conversion eg Flack v Chairperson, National Crime Authority (1997) - Failure to return After Demand made

DETINUE 10

Failure to return the goods following a lawful demand eg Lloyd v Osborne (1899) Reglon Pty Ltd v Hill [2006] action in detinue requires a specific demand for return of goods made prior to court proceedings Action is based solely on the detention of the goods and consists of more than just a brief withholding of goods Intentional conduct relates to the refusal to return the good when proper demand is made 11

Action on the Case for Damages to Goods Requires proof of damage Does not require possession or a right to possession; Based on a reversionary interest

See Comments in Penfolds Wines; Mears v London and Southwestern Railway Co (1862).