This page was last updated 23 August 2010.

5 Interfering with Business Activities

5.1 - Torts
5.2 - Actions under Trade Practices Act
5.3 - Interlocutory Injunction

There are a variety of different legal actions that can be taken by an individual or corporation in relation to hindering the supply of goods or services to an individual or corporation, or in some other way interfering with their business interests. If such actions, known as "economic torts", are successful they may result in an injunction, an award of damages and/or an award of costs. Even apart from the damages that can be awarded, the amount of costs that an unsuccessful defendant can be ordered to pay in these types of actions is potentially large. This means that any assets you may have, such as your house, or any assets of an Association, may be at risk.

Such legal actions have often been used to discourage dissent. Historically, the economic torts have been used to stifle the actions of trade unions. It should not be thought, however, that the economic torts are of historical interest only. In 2004, Australian Wool Innovations Ltd and 100 Australian wool growers brought proceedings in the Federal Court against People for the Ethical Treatment of Animals Inc., Animal Liberation and a number of individuals associated with those two organisations in relation to what the applicants described as an Australian wool boycott. The applicants alleged that the defendants had committed various breaches of the secondary boycott provisions of the Trade Practices Act 1975 (Cth), unconscionable conduct under the Trade Practices Act, the tort of conspiracy and the tort of intimidation.1

Similarly, in December 2004 the Tasmanian timber company Gunns Limited commenced proceedings in the Victorian Supreme Court against 17 individuals, The Wilderness Society, the Huon Valley Environment Centre and Doctors for Native Forests. Gunns Limited claimed damages, including aggravated and exemplary damages, and injunctions in relation to the disruption of its businesses allegedly caused by various tortious actions of the defendants2 (See Civil Law Remedies at 2.1.4).

While such actions do have a contemporary relevance, they are relatively rare for a number of related reasons:

First, a common thread in almost all the civil actions set out below is that you intentionally invade or "target" the economic interests of an individual or a company (other than through merely competitive practices). This is rarely what protest actions are about.

Second, damages are usually nominal (as opposed to substantial), even if actions such as blockades from time to time target particular people or entities3.

Third, legal actions are not lightly taken on because of the time, energy and expense involved. Groups or individuals involved in protest action rarely have substantial assets. Those that do routinely undertake a range of "risk management" measures prior to any proposed action.4

5.1 Torts

There are various actions, both in tort and under various statutes, that can be brought against campaigners whose actions interfere with trade. The torts most likely to be relevant to campaigning are discussed here.5

5.1.1 Conspiracy

Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. Historically there are two kinds of conspiracy, each of which has distinct elements. The first type of conspiracy is an "unlawful means" conspiracy in which the participants combine together to perform acts which are themselves unlawful. The second kind of conspiracy is one in which the participants combine to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant.6

5.1.2 Intimidation

The tort of intimidation is made out where there is a deliberate threat, the threat is to commit an unlawful act, and the person so threatened has complied with the demand thus bringing about loss or damage.7

Generally, the tort has been applied where three parties are involved - such as where protestors intimidate a supplier, so that goods are not supplied to a company. Again, the classic application of this tort has been in the area of trade union activity, such as unlawful picketing.8

5.1.3 Interference with contract

You may be liable in tort if you intentionally induce a person to breach a contract. While this tort has been used by employers threatened with industrial action it is not restricted to the industrial arena. For example, it is the type of action that may be available to a construction company whose work on building a road is hindered by protestors or a food processing company whose goods are boycotted by environmental campaigners.9

It is necessary to distinguish between a "direct" interference and an "indirect" interference. A direct interference is where the defendant, by words or actions, in some way prevents the person with whom the plaintiff has the contract from carrying out the contract. An indirect interference is generally where the defendant procures a third party to interfere with the contract.

In order to commit the tort of indirect interference with a contract there must be an unlawful act (for example, a trespass) and the interference must be a necessary consequence of the unlawful act.10

The following example of indirect interference is given in Balkin and Davis : Law of Torts.11 A group of conservationists wishing to protect a species of fish mount a vigorous campaign of distributing leaflets outside supermarkets in a town, urging shoppers not to buy any of the fish in question. If wholesalers of the fish were able to demonstrate that the protestors had committed an unlawful act (such as trespass) in the course of inducing shoppers not to buy the fish, as a result of which supermarkets had broken their contracts for its supply, the conduct of the conservationists would constitute the tort.

In recent years, the basis of the tort of inducement of a breach of contract has changed conceptually.12 It now seems accepted that the tort is based on a willful violation of a person's right by the wrongdoer, and this may lead to an expansion of the tort beyond contracts.

5.1.4 Interference with trade and commerce by unlawful means

A specific tort of interference with trade and commerce by unlawful means is not presently part of Australian law.13 Rather, it is a general term covering all of the individual economic torts of intimidation, conspiracy and interference with contract.

In other jurisdictions, you may be liable for this tort if you intend to cause loss to a person (though this does not have to be your predominant intention),14 you use unlawful means, and you actually cause loss to the person. Unlawful means would include crime, tort and breach of contract as well as fraudulent misrepresentation.15 The defence of justification is probably not available to the tort of unlawful means.16

5.1.5 Causing loss by unlawful means

The use of unlawful means by the defendant to inflict an intended loss on the plaintiff is a tort about which there is much uncertainty.17 Arguably the tort will be committed where a person has caused harm to another party by acting unlawfully - such as by fraudulent misrepresentation, acting in contempt of court, or by breach of confidence - and the person intends to target a party. This targeting does not need to be their predominant intention. Thus, a conservation group could be acting in a manner consistent with their Mission yet still commit the tort, provided there was an element of intention in their actions to cause harm.

5.1.6 Interference with land

You may be liable in tort for acts that intentionally or negligently interfere with a person's exclusive possession of their land, whether it be directly or indirectly. The main remedy will be damages (often these will involve large sums of money as the remedy is also intended to punish the wrongdoer). Injunctive relief is also a common remedy and may be used to formally prohibit certain behaviour. Injunctions may be particularly relevant to campaigners where there is an ongoing course of action (such as picketing). There are numerous ways in which a person can interfere with another's exclusive possession of their land. Therefore, the tort of interference with land encompasses a number of separate torts.

a) Trespass

Being on land without permission is the most obvious form of this action. In this respect, the law recognises certain forms of express or implied licences to enter onto land (such as to go to the front door to discuss a matter). However, it is also clear that such licences can be revoked and that entry onto land for other purposes may be unlawful (such as using an express or implied licence to snoop around the property).

If protestors do take photographs or footage during the course of a trespass to land, they may be restrained from making use of the photographs or the video, if their existence is known, because they are the 'fruits of trespass'.

The taking of photographs from outside the land is not trespass.18 Nor is it necessarily trespass to fly over someone's land and take photographs, notwithstanding that theoretically a person's land extends to the air space above it.19

Trespass is also considered to be a criminal activity (see Trespass at 6.7).

b) Private Nuisance

The common law also provides protection for indirect interference with a plaintiff's possessory interests in land by means of the tort of private nuisance. Private nuisance requires that the interference with the plaintiff's use and enjoyment of his or her land be substantial and unreasonable.

There are a number of decided cases on private nuisance and picketing and protests.20 There are also a number of cases dealing with injunctions restraining picketing surrounding the 1998 dispute between the Maritime Union of Australia and Patricks.21

c) Invasion of Privacy

A recent High Court case suggests that, whilst private nuisance does not protect privacy, the common law in Australia may develop a tort of invasion of privacy.22 If such a tort were to be recognised in Australian law, it would not be for the benefit of corporations.

5.2 Actions Under the (CTH) Trade Practices Act 1974

5.2.1 Misleading and deceptive conduct

Section 52 of the Trade Practices Act 1974 provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive. While section 52 applies to corporations (and in certain limited circumstances to individuals), proceedings can be brought against individuals under the Fair Trading legislation in the various States and Territories that have provisions which mirror section 52.

The misleading and deceptive conduct must occur "in trade or commerce" . It is arguable as to whether statements made in an interview, or during a demonstration, or in a protest pamphlet are made "in trade or commerce" . For example, statements made by an RSPCA officer in opposing the sale of electronic dog collars were found not to have been made in trade or commerce.23

5.2.2 Boycotts and secondary boycotts

Individuals and groups planning boycott actions need to take great care that their actions do not infringe the boycott and secondary boycott provisions of the Trade Practices Act 1974 . A prohibited boycott is one in which one person, in concert with another, engages in conduct which has the effect (or is likely to have the effect) of preventing or substantially hindering a third person from engaging in trade or commerce involving the movement of goods between Australia and overseas.24

A "secondary boycott" is, in a sense, an indirect boycott. It is one in which a boycott is placed on person A in order to damage the business of person B. For example, a union ban on loading or unloading cargo in order to damage the business of the person importing the goods.25 In essence, s.45D bans two or more people from engaging in conduct together which hinders or prevents a third person supplying goods or services to a corporation or acquiring goods or services from a corporation if one of the purposes for doing so is to cause substantial loss or damage to the business of the corporation or the conduct is likely to have that effect.26

Section 45DD provides a defence to an action in relation to a boycott or secondary boycott in certain situations. One such situation is where the dominant purpose of the conduct engaged in is substantially related to environmental protection or consumer protection and the conduct is not industrial action.

5.3 Remedies: The Interlocutory Injunction

In Chapter 2 there is a brief outline of the various remedies that can be obtained by a party who successfully sues in relation to a breach of contract, the commission of a tort or a breach of statute. It is important for those undertaking protest actions to appreciate the speed with which certain types of court orders can be made.

As briefly outlined in Chapter 2, one type of injunction that can be granted by a court is an interlocutory injunction - that is, an injunction granted by a court well before a final hearing is able to take place. For example, a landowner who alleges that campaigners are trespassing on his or her land will commence proceedings wanting to put an immediate stop to the trespassing. It is highly unlikely the landowner would want the trespass to continue for the many months (or longer) that may pass before the parties are ready, and the Court is able to hear and determine all the issues in the case on a final basis. Similarly, a corporation alleging that its business is suffering damage as a result of a boycott will not want the boycott to continue until such time as the final hearing takes place.

If you are engaged in protest action which is alleged to amount to a tort or a breach of the Trade Practices Act, it is highly likely that those commencing proceedings will seek an interlocutory injunction.

In a practical sense, this means a number of things.

First, if the matter is sufficiently urgent, by the time you are served with the papers the plaintiff or applicant may already have obtained what is known as an ex parte injunction (see Chapter 2). This will only last until you are able to be served with the Court documents and are able to appear in Court.

Second, a court will not decide whether or not to grant an interlocutory injunction by deciding all the issues in the case. A court will look at whatever evidence is before it at that stage (this will probably not be all the evidence that will be called at the ultimate final hearing) and decide two questions:

• Is there a "serious question to be tried"?

An applicant must show that, there is a serious question to be tried which, if resolved in its favour, would entitle it to relief.

• What is the "balance of convenience"?

In deciding where the "balance of convenience" lies a court will carefully consider the effect on both parties of granting an injunction and, in particular, whether granting an injunction would cause hardship to the defendant or refusing one would cause hardship to the plaintiff.

Third, you should be aware that in deciding whether or not to grant an interlocutory injunction a court will not ordinarily resolve conflicts in the evidence. Indeed, generally cross-examination is not permitted and the court will simply read the affidavits filed by the plaintiff and the affidavits filed by the defendant.

1. Australian Wool Innovation Ltd v Newkirk [2005] FCA 290.
2. Gunns Limited & Ors v Marr & Ors [2005] VSC 251.
3. Douglas R (2004) Dealing with Demonstrations: the Law of Public Protest and its Enforcement Federation Press, Sydney , Australia at p 92.
4. Douglas R (2004) Dealing with Demonstrations: the Law of Public Protest and its Enforcement Federation Press, Sydney, Australia at p 92.
5. This Chapter draws widely from Baker D, Blay S, Corbin L and Gibson A (2002) Torts Law: In Principle 3 rd edition Thomson Law Book Company, Pyrmont, Sydney, as well as the incisive commentary of David Rolph, Lecturer-at-Law, University of Sydney
6. Australian Wool Innovation Limited v Newkirk [2005] FCA 290 at [60]; McKellar v Container Terminal Management Services Limited [1999] 165 ALR 409 at [135]-[154]
7. Balkin, RP and Davis JLR (2004) Law of Torts LexisNexis Butterworths, 3 rd edition at p 654.
8. One case held it to be intimidation for a union to threaten unlawful picketing of premises so that the owners would not give their business to certain artists: Sid Ross Agency Pty ltd v Actors Equity Association of Australia [1971] 1 NSWLR 760.
9. Balkin RP and Davis JLR (2004) Law of Torts LexisNexis Butterworths, 3 rd edition at p 637.
10. Balkin RP and Davis JLR (2004) Law of Torts LexisNexis Butterworths, 3 rd edition at p 646.
11. Supra at p 646.
12. See Law Debenture Trust Corp pic v Ural Caspian Oil Corp Ltd [1995] 1 All ER 157 and, for the theoretical basis of the change: Lumley v Gye (1853) 2 E & B 216; 118 ER 749.
13. In Sanders v Snell (1998) 196 CLR 329, the High Court said they did not 'think it necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia '.
14. Lonrho plc v Fayed [1990] 2 QB 479 [[1989] 3 WLR 631; [1989] 2 All ER 65] (CA), Woolfe LJ at 494 (followed in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 [95 ALR 211; [1989] Aust Torts Reports ¶80-290], Brooking J at 668).
15. Lonrho plc v Fayed [1990] 2 QB 479 [[1989] 3 WLR 631; [1989] 2 All ER 65] (CA), Dillon LJ at 489. National Phonographic Co Ltd v Edison-Bell Consolidated Phonographic Co Ltd [1908] 1 Ch 335 (CA).
16. Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 [95 ALR 211; [1989] Aust Torts Reports ¶80-290].
17. Halsbury's Laws of Australia Law Book Company volume 33.8 [69]
18. Bathurst CC v Saban (1985) 2 NSWLR 704.
19. Trespass or nuisance are not available, provided that the aircraft flies at a reasonable height above the property in light of all the circumstances: see (NSW) Damage by Aircraft Act 1952 s 2 .
20. See, for example, Barloworld Coatings (Aust.) Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union (2001) 108 IR 207; McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413; National Australia Bank Ltd v Juric [2001] VSC 51; Ridge Street Medical Clinic Pty Ltd v Christian Outreach Centre (unreported, SC(Qld), White M, 19 February 1991).
21. There is also a tort of public nuisance. See, for example , McFadzean v Construction, Forestry, Mining and Energy Union [204] VSC 289.
22. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 (15 November 2001).
23. Orion Pet Products v RSPCA (Vic) [2002] FCA 860; [2002] 120 FCR 191
24. Section 45DB Trade Practices Act 1974 .
25. Miller's Annotated Trade Practices Act (2006) Thomson Law Book Company, 27 th edition at p 340.
26. Miller's Annotated Trade Practices Act (2006) Thomson Law Book Company, 27th edition at p 340.

 

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