Understanding Trespass: Implied Licence & Consent Law

🕒 8-minute read

Supporting Process Servers, Repossession Agents, and Field Agents Across Australia

Introduction

Trespass law sits at the core of an occupier's right to control access to their property. For process servers, repossession agents, and field agents working within Australia’s credit and enforcement sector, understanding this area of law is not optional—it is essential. While lawful entry is often assumed during the course of professional duties, such authority is not absolute. This article explores the concept of implied licence under Australian common law, the lawful revocation of that licence, and how these principles apply to process serving, repossession activities and field calls to correct persistent misunderstandings circulating within the industry that may lead agents—and their clients—into legal jeopardy.

Common Law Foundations: What Constitutes Trespass?

Trespass to land occurs when a person enters or remains on land in the possession of another without consent or lawful justification. It is a strict liability tort—meaning intent to trespass is not required—and is equally applicable to private citizens and government officers. The onus is always on the entrant to demonstrate they had lawful authority or the consent of the occupier.

The doctrine of implied licence permits certain forms of entry. For instance, Australia’s High Court in Halliday v Nevill (1984) recognised that, in the absence of contrary indicators, an occupier of a private residence grants an implied licence to members of the public to approach their front door for lawful business. This covers a wide range of actors—from salespeople and neighbours to process servers—provided the entry is peaceful and within the bounds of social convention.

Occupiers and the Nature of Trespass

Occupier refers to the person lawfully occupying or controlling premises (the one who can say “yes” or “no” to entry).

Adhering to the occupier’s rights (by seeking consent or obeying any refusal) will keep your actions within the law and avoid trespass.

Importantly, trespass to land is a common law offence that does not require proof of damage or injury. The act of entering another’s land without lawful justification or consent is itself sufficient to constitute trespass.

Trespass can even occur without setting foot on the land itself. In Janney & Ors v Steller Works Pty Ltd [2017] VSC 363, the Supreme Court of Victoria held that a crane boom swinging into the airspace of a neighbouring property amounted to trespass. While field agents are unlikely to operate a crane, this serves as a cautionary reminder that even reaching over a fence—or letting a drone stray—could still breach the occupier’s rights.

When Implied Licence Ends: Signs, Locked Gates, and Verbal Withdrawal

The implied licence is not unlimited. The High Court in Plenty v Dillon (1991) confirmed that occupiers can revoke this licence at any time, either expressly (through verbal direction) or impliedly (via signage, locked gates, or other indicators). Once revoked, any subsequent entry—regardless of the entrant’s purpose—amounts to trespass.

Case law consistently upholds this principle in Romani v State of NSW (2023). Two police officers climbed a locked gate where two clear signs were prominently displayed, each explicitly revoking consent to enter. Their entry was deemed unlawful despite their attending to conduct inquiries under health orders. The court awarded the plaintiffs $18,334.69 in damages, reaffirming that no special privilege exists when consent has been clearly denied.

Application to Process Serving

While many process servers are highly experienced professionals who understand the legal limits of entry, a few in the industry mistakenly believe that serving court documents grants them a higher standing under the law. This is incorrect. While serving documents is undoubtedly a lawful activity, it does not override common law rights. Like any other individual, a process server may rely on an implied licence to approach the front door—unless the occupier has revoked that licence.

Revocation may take the form of:

• Locked gates
• Prominent signage (e.g. "Private Property – No Entry")
• Prior communication explicitly denying access

Once such revocation occurs, the process server must not proceed. If service cannot be completed due to restricted access, the lawful alternative is to seek substituted service through the courts.

Some confusion arises from the wording in various state trespass statutes, which mention terms like "lawful excuse" or "legitimate purpose." These phrases do not authorise entry once consent is withdrawn. Instead, they protect those who enter innocently or with consent from criminal prosecution. They do not negate the tort of trespass nor provide an ongoing right to remain after licence has been revoked.

A Word on Misconceptions: The Myth of Absolute Right

Although most process servers understand and respect the legal boundaries of entry, a lingering myth still circulates among a few agents that they have an unconditional right to enter property while performing their duties. One fictional example may help illustrate this issue:

A fable within the industry tells of a field agent who once attempted to serve documents at a semi-rural property clearly marked with "No Entry" signage and secured by a chained front gate. Convinced that his written instructions and the nature of the task granted him unquestioned authority, he reportedly used a wheelie bin to scale the fence and attempted to serve the person at her front door. While the tale is often retold with a hint of bravado, it serves as a cautionary reminder that what might have been tolerated or overlooked in earlier times is no longer acceptable under modern compliance expectations. Today's industry operates under far stricter legal and ethical standards—and rightly so.

This belief—that serving court documents permits entry regardless of signage or barriers—is deeply flawed. No section of the Service and Execution of Process Act 1992 (Cth) grants process servers the right to enter private property without consent. It standardises interstate service procedures but does not override state trespass laws or abolish an occupier’s right to exclude visitors. Courts have repeatedly ruled that entry must still be lawful under state and common law.

The correct approach in such scenarios is to document the obstruction and apply for substituted service—not to breach a locked and signed property boundary. If a process server or agent is asked to leave, they must do so immediately, as this revokes any remaining implied licence to remain on the property.

“ The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter! All his forces dare not cross the threshold of the ruined tenement. So be it – unless he has justification by law. ”
— William Pitt, 1st Earl of Chatham (c. 1763)

This eloquent affirmation of a person's dominion over their home remains as true today as it was in the 18th century. Notably, the High Court of Australia referenced this very quote in Plenty v Dillon (1991) to underscore the sanctity of private property—even in the face of state authority.

The facts in Plenty v Dillon are worth revisiting. In December 1978, two South Australian police officers—Constables Dillon and Will—entered Mr Plenty's rural property without his consent. Their purpose was to serve a court summons on Mr. Plenty's 14-year-old daughter under the Juvenile Courts Act. The officers had been explicitly told not to enter the premises. Despite this, they climbed over a gate and walked across the property to deliver the summons. Mr. Plenty successfully sued them for trespass. The High Court upheld the ruling in his favour, confirming that a lawful purpose does not override an occupier's clearly withdrawn consent. This decision remains one of the strongest affirmations in Australian law that property rights must be respected—even by government agents carrying out official duties.

Its relevance extends to process servers, debt collectors, and even law enforcement. None may lawfully intrude upon a person's property without consent or a valid legal authority. The dignity of a locked gate or a simple sign still shields a citizen from uninvited entry, regardless of uniform, paperwork, or profession.

Repossession: Consent Still Required

While most repossession agents understand the legal limitations around entry, some—particularly those who are untrained or unfamiliar with the relevant laws—mistakenly believe that a right to recover secured goods equates to a right to enter property. Under the National Consumer Credit Protection Act 2009, which includes the National Credit Code as Schedule 1, a credit provider or their agent must not enter residential premises to repossess goods unless:

• The occupier consents in writing; or
• A court order authorises entry

Furthermore, a Form 13 consent to enter must only be requested between the hours of 8:00 a.m. and 8:00 p.m., and not on a Sunday or public holiday. These timeframes form part of the regulations to ensure respect for residential peace and consumer protections. Agents must not rely on contract terms alone—compliance with the Code is mandatory, and unauthorised entry is both trespass and a breach of statutory obligation.

Defences to Trespass: When Entry May Be Lawful Without Consent

Although trespass is generally a strict liability tort, certain circumstances may serve as a legal defence:

• Necessity: A person may enter land without consent to prevent serious harm or danger, such as entering a property to assist someone in immediate peril or to avoid injury to oneself.
• Accidental Entry: A genuine accident may excuse trespass—for example, a vehicle unintentionally veering off a road due to mechanical failure and breaching a property fence.
• Lost or Disoriented Entry: An individual, such as a bushwalker or orienteer, who inadvertently strays onto private land without realising it, may raise the defence of honest mistake.
• Legal Authority: Certain officials (e.g. police or sheriffs) may enter land if authorised by a valid warrant or statutory power—for example, a police officer entering a property to enforce a domestic violence order or entering in hot pursuit of a person suspected of committing a serious indictable offence.

While these defences exist, they are applied cautiously. Some—such as police entry under domestic violence legislation or in hot pursuit—are used regularly and supported by statutory powers. The courts assess whether the conduct was reasonable and whether viable alternatives existed. These defences are rarely available for professionals such as process servers or debt collectors unless life or limb is genuinely at stake.

State-by-State Overview

Jurisdiction	Implied Licence Recognised	Revocation Methods Accepted	Relevant Authority
ACT	Yes	Signage, barriers, verbal	Trespass on Territory Land Act 1932
NSW	Yes	Signage, locked gates	Inclosed Lands Protection Act 1901
NT	Yes	Signage, physical obstruction	Trespass Act 1987 (NT)
QLD	Yes	Verbal, signage	Summary Offences Act 2005 (QLD)
SA	Yes	Gates, signs, verbal	Criminal Law Consolidation Act 1935
TAS	Yes	Clear indicators, signs	Police Offences Act 1935
VIC	Yes	Signs, locked gates	Summary Offences Act 1966
WA	Yes	Fencing, signage	Criminal Code Act Compilation Act 1913

Conclusion

Trespass is not merely a technicality—it is a foundational principle that protects individuals from unwanted interference on their property. The right to serve documents or repossess goods does not override the need for consent, nor does it permit entry where that consent has been explicitly revoked.

Mercantile agents should always consider signage, barriers, and verbal instructions binding. Professional practice demands that we seek lawful alternatives—such as substituted service or court orders—rather than relying on outdated or incorrect assumptions.

We owe it to our clients, our industry, and the law itself to get this right.

Remember

A lawful visit must respect the gate —
Without clear consent, don’t tempt your fate.
Whatever your purpose, act with care —
Revoked consent means don’t go there.

Nick’s Bio

Nick Boyd, founder of Beebox Training, brings over 24 years of experience in the mercantile agent industry. Since 2009, he has developed comprehensive training modules on compliance and relevance. Nick's dedication to the field is reflected in his diverse roles, from soldier to police officer to General Manager, and his commitment to quality training and mentoring. For more details, visit Beebox Training.