Lily Struthers is a sensitive soul. She had a strong childhood bond of friendship with Eva Trentham, but since Eva went away to university in Brisbane they have grown apart, something Lily regrets.
Eva’s family live on a large block of five acres in Bruce, a suburb in the Australian Capital Territory. The block does not have fences, and it is unclear where it begins and ends. Sometimes, when she is feeling especially nostalgic, Lily will walk along the borders of Eva’s family’s land, and think about old times. One such time was on 15 March, 2016. Lily was feeling especially pensive on this night, as 31 March was her old friend’s birthday. So she took herself for a walk by their house and in doing so realised that the house was ablaze with lights. Getting closer, she realised that a party was being held—a party, she suspected, in honour of Eva’s 21st birthday.
Deeply hurt, Lily came close to the house. When she was about 100 metres away (at which point she knew that she was on the Trentham’s property) she was stopped by Eleanor Butterworth, an employee of Safe and Sound Security, a firm hired by the Trenthams to provide security during the event. Eleanor told Lily that she was on private property, and that she had to leave immediately. Lily, very upset, refused. Eleanor asked Lily to leave a second time; when she refused again, Eleanor placed Lily in handcuffs and walked her to the house. The police were called, and Lily was escorted away… but not before seeing Eva who, from a distance, made eye contact and then turned away, without saying anything.
On 31 March, 2016, Lily came to your firm’s office. Speaking with your managing solicitor, Ellen Wood, she said that on 29 March she had received a letter from the Trentham’s solicitor saying that she was going to be sued for trespass to land. Because of this, as well as Eva’s snubbing her on the night of the party, Lily not only wants to know how she can defend herself in the trespass to land matter, but also the grounds on which she might sue the Trenthams. Ellen Wood speaks to you, detailing the matter as above and giving you the following instructions:
Please provide a memorandum of advice, written in an appropriate manner and using AGLC3 style, regarding Ms Struthers’s matter. We have been able to confirm that, as of yet, no civil action has been commenced, but you should assume, for purposes of this memorandum, that any such action would be commenced in the ACT.
With regards the Trentham’s action against Ms Struthers, you should briefly identify the law concerning trespass to land (this is a tort law matter, also known as the law of obligations), the elements of that the Trenthams will need to prove to make their case against Ms Struthers, and any defences, and apply these to our client’s case. Please note that while the Civil Law (Wrongs) Act 2002 (ACT) sets out defences to trespass to land, it does not identify the elements of the action; for that you will need to look elsewhere.
Having considered the grounds on which Ms Struthers might pursue an action against the Trenthams, I think that her best courselies in the tort of false imprisonment. Please describe the elements of this tort and how it operates in the context of any claim that she might have; in doing so, please identify and describe at least two pieces of relevant case law that have a bearing on the case in support of your advice.Note that the Civil Law (Wrongs) Act 2002 (ACT) does not have any provisions relating to this tort.
In both instances, you should identify the strengths and weakness of Ms Struthers’s position. You should also briefly consider the options, whether litigation or alternative forms of dispute resolution, generally available to her in resolving these matters.
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