Neal J (delivering oral judgment):

The plaintiff in these proceedings sued the defendant on a statement of claim alleging that she is the licensee of the piece of State land, a full description of which she includes in her statement of claim, that the defendant has been and still is in wrongful occupation of the said house on the land and that despite demands made by the plaintiff upon the defendant he continues to remain in wrongful occupation, and the plaintiff prays for an order of ejectment plus damages for trespass, costs, and ancillary relief.

The defendant in his statement of defence pleads merely that he is in possession.

During the course of the hearing, I drew attention to the form of the statement of defence and Counsel relied upon a decision of the House of Lords, in particular, the decision of the Lord Chancellor in Danford v. McAnulty [1882- 3] 8 App Cas 456, 458. I have considered that judgment and I see no reason for changing the view that I expressed at the hearing. I feel, however, that I ought to point out that that case was dealing with a set of Supreme Court Rules which differ materially not in the rule relied upon by the defendant but in the other rules and the inclusion of rules which have no counterpart with the rules with which the House of Lords were dealing. I find it, for reasons which will be perfectly clear as my judgment continues, unnecessary to decide whether that method of pleading was correct or not. I will content myself with saying that there is extreme doubt, having regard to a number of additional rules in our Supreme Court Rules, as to whether the effect of the rule relied upon is the same as it was when the matter was decided in the House of Lords in 1882.

The plaintiff gave evidence and she and her witnesses were cross-examined. The defendant gave non evidence on his own behalf, and, I think, on the facts, the plaintiff has proved her statement of claim. She established that she was granted Temporary Occupation Licence by government, the previous holder having surrendered his licence; that there was on the land the building which was in law a fixture; that at the time she received her Temporary Occupation Licence the defendant was in possession of part of the house, he having been in possession with the consent of the previous holder of the Temporary Occupation Licence. The plaintiff was in possession for a period of months but owing to disagreements and troubles between the respective families she left the premises and took these proceedings. She served upon the defendant what may be adequately described as a notice to quit. These facts were not really attacked by the defence. The defence was content to rely upon the submission that the plaintiff was a licensee and that an action in trespass in tort will not lie at the instance of a licensee.

At the hearing I expressed the opinion that as I understood the authorities on the subject that submission was good in respect of a licensee who had a nonexclusive license if I may use that phrase, i.e. that his license did not entitle him or give him any title to prevent any other person from going on the land. Had that been the only point in issue then as I said at the time I would not have reserved my decision but I was worried at the time and said so as to whether this man was a trespasser or whether he was in the position of a tenant whose tenancy had been cancelled and who in law could not become trespasser. However, since I have reserved my judgment, it is as well that I should deal with the point raised by the defence and in which I found little merit at the hearing.

The defence relied upon two quotations from Clarke & Lindsell on Torts, 11th Edn., at p. 520 and at p. 539. The reference may be summarised, I think, without injustice to the submission, as a statement that ejectment does not lie at the instance of a licensee. The authority for the statement in Clarke & Lindsell is the old case of Hill v. Tupper 159 ER 51, which