Damages for trespass are a serious matter – whether aggravated or punitive. In this article, our expert law team break down the torts of trespass and damages with reference to recent client case: Page v Long [2025] VCC 868.
THE TORT OF TRESPASS
There are 3 main elements required to substantiate a claim for trespass to land:
- Lawful Possession
A person wishing to bring a claim for trespass to land must have lawful possession of the land at the time of the alleged trespass. This principle would prohibit, for example, a landlord who has tenanted out a property to a tenant from bringing a claim for trespass to land, as the landlord does not have possession of the property.
- Direct Interference
There must have been a direct interference with the land by the defendant without a lawful reason for doing so (as discussed below).
It is important to note that even if a person has originally had a lawful reason for entering/remaining on the land, this lawful reason is not enduring. Permission or authorisation can be revoked by the land occupier at any time, at which point the lawful reason for entering/remaining on the land is extinguished.
- Fault
The defendant must be at fault for the alleged trespassing behaviour. In essence, a voluntary act of the defendant to trespass is required to make out a claim for trespass and that voluntary act must have taken place without a lawful reason for doing so.
Port Stephens Shire Council v Tellamist [2004] NSWCA 353 (Tellamist)
There are 3 categories of trespass which may give rise to substantial (and not nominal) damages identified by Santow J in Port Stephens Shire Council v Tellamist [2004] NSWCA 353 (Tellamist):
First, there is trespass giving benefit to the defendant without actual loss to the plaintiff.
Second, there is trespass involving benefit to the defendant and correlative loss to the plaintiff.
Third, is a case of trespass involving loss to the plaintiff and no correlative gain to the defendant.
These 3 categories are said to be “General damages”.
DAMAGES FOR TRESPASS
Page v Long [2025] VCC 868.
In the recent case of Page v Long [2025] VCC 868, where Rostron Carlyle Rojas Lawyers represented the successful Plaintiff, the Court made an additional award for aggravated and exemplary damages in light of the exceptional circumstances of the matter.
Facts
The Defendant had been found to have entered upon the Plaintiff’s land and shot hog deer and boasted of having done so by Facebook posts.
The Plaintiff’s case was summarised as follows:
- Mr Long’s response to Ms De Visser’s Facebook post that “I hope your little hogs are safe this year” should be viewed as a threat, and evidence that he specifically targeted the Ranch because of Ms De Visser’s Facebook post concerning a proceeding against him;
- Mr Long’s trespasses involved a masked man in camouflage sneaking onto the Ranch with a rifle equipped with a suppressor. This was dangerous conduct. This increased the legitimate fear and anxiety experienced by Mr Page and his family members. It particularly impacted on Ms De Visser and her granddaughter, who no longer felt safe walking around the property;
- Mr Long’s trespasses occurred over the Christmas break, a time when Mr Page and his family members were likely to be present;
- Mr Long’s trespasses concerned the illegal killing of particular deer which they had developed a relationship with;
- In the December 2020 trespasses, Mr Long left behind three rotting decapitated carcasses of deer. Mr Page always butchered any deer which were shot on his property and was outraged at the wastage of these deer carcasses;
- Mr Long hid the deer carcasses in an attempt to avoid detection;
- Mr Long’s actions directly interfered with Mr Page’s business and his conservation activities on the Ranch;
- At the time of the trespasses, Mr Long had no firearm licence. Using an unlicensed firearm or silencer and possessing, carrying or using a firearm without the consent of the owner or occupier of a property, and hunting, taking or destroying hog deer without a license, were all serious crimes;
- Mr Long poached for bragging rights and financial advantage;
- Mr Long’s trespasses should be viewed as deliberate, given the many signs around the property, the two locked gates and fenced land boundaries;
- Mr Long had a long history of, and enthusiasm for, poaching;
- Hog deer are protected wildlife under the Wildlife Act and Mr Long’s activities enabled him to “skip the queue” and undermine the careful regulation of hog deer hunting; and
- A “prohibitively costly” amount should be awarded, sufficient to deter both Mr Long and other poachers. Of relevance to this is the fact that Mr Long had previously been charged and fined in relation to the discharge of a firearm on private property.
The defendant denied such conduct alleged against him, but his evidence (denials) was found to be “so unreliable that it should not be accepted unless contrary to his self-interest.”
Punitive Damages
The Plaintiff sought general and aggravated damages.
Aggravated and exemplary damages have different underlying rationales, with aggravated damages being compensatory in nature, and exemplary damages being punitive in nature but care needs to be taken to avoid “double punishment”.
Her Honour found the trespass proven and said of the defendant’s conduct:
“His conduct in both December 2019 and December 2020; and his subsequent boasting of his participation:
(a) Undermines government regulation of hog-deer hunting;
(b) Undermines firearms regulation;
(c) Violates Mr Page’s right to control who enters the Ranch and what they do while there; and
(d) Directly threatened the safety of Mr Page and his family members and interferes with their use and enjoyment of the land.”
In awarding punitive damages, Her Honour said:
“Further, this was not some light-hearted boy’s own adventure, where the only victims were a few feral deer. The conduct engaged in by Mr Long, and any associates who accompanied him, was callous, dangerous and (in the case of anyone who discharged a firearm) criminal. Mr Long’s conduct is deserving of strong denunciation and punishment by the Court. The damages awarded against him should account for the need to clearly and specifically deter him from engaging in such conduct in the future. The fact that others may also have engaged in such conduct does not ameliorate the need for aggravated and punitive damages in this case. Indeed, an award of punitive damages may also serve the purpose of deterring others from engaging in similar conduct.“
The amount awarded for general damages of $10,000 for each trespass on 2 occasions and was increased by $55,000 for each trespass making a total award of $120,000 damages so as to:
- Compensate Mr Page for the fear, distress and outrage experienced by Mr Page and his family; and
- Punish Mr Long for his conduct and
- Deters him and others from engaging in similar conduct in the future.
SUMMARY
Trespass upon another’s property can be a serious matter and result in serious consequences in certain circumstances such as arose in the specific facts of this case.
The decision is groundbreaking in its assessment of aggravated damages for trespass by a party who engages in shooting activity upon another’s land and the need for a deterrence effect.
It holds a strong message to those who might think trespassing and engaging in unlawful, dangerous and criminal activities on another’s land as a “boy’s own adventure” is without real consequence.
HOW WE CAN ASSIST
Parties who have suffered detriment due to tort of trespass and damages, please contact us.
Good early legal advice can assist in:
- Identifying and preserving evidence.
- Assessing the prospects of success.
- Engaging in negotiations to resolve the dispute.
- Commencing proceedings where necessary.
The team at RCR Lawyers regularly advises and represents clients in aggravated and punitive damages for trespass matters across commercial, property, and business contexts.
For further information or assistance, please contact Michael Sing at RCR Lawyers [email protected] and on 07 3009 8472.
The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.
