Brisbane Shipwrights' Provident Union v Heggie [1906] HCA 4; (1906) 3 CLR 686 (12 March 1906)

The Brisbane Shipwrights' Provident Union, James Arcus, John Dawson and Thomas Mitchell Defendants, Appellants; and Thomas Heggie Plaintiff, Respondent,

[After stating the material facts His Honor proceeded]: As no application was made to the Supreme Court for a new trial, it is not now open to the appellants to impeach the findings of the jury. The matter must, therefore, be considered exclusively upon the facts as found by the jury and appearing upon the record, in the same manner as formerly upon a bill of exceptions or a special verdict: Musgrove v. McDonald[1].

For the appellants, reliance was placed upon the case of Allen v. Flood[2], while the respondent relied mainly upon the case of Quinn v. Leathem[3]. Allen v. Flood was an action for maliciously and wrongfully, and with intent to injure the plaintiff, procuring his employers to break their contract with him, and not to enter into any new contract with him, and also for unlawfully and maliciously conspiring with others with the same object. There was, however, no evidence of any conspiracy. The case was tried by a jury, who found for the plaintiff on the cause of action first stated, and judgment was given for him. This judgment was affirmed by the Court of Appeal. On appeal to the House of Lords, the Judges were summoned, and the following question was put to them—"Was there any evidence of a cause of action fit to be left to a jury?" In the very elaborate opinions given by the learned Judges who advised the House, and in the speeches of the learned law Lords, the whole subject of interference with liberty of trade was very fully considered, and various divergent opinions were expressed; but as was pointed out in Quinn v. Leathem[4], the actual question for decision was whether there was, in that case, any evidence fit to be left to a jury. The majority of the law Lords (Lords Watson, Herschell, Macnaghten, Shand, Davey and James of Hereford; Lords Halsbury, L.C., Ashbourne, and Morris dissenting) held that the evidence for the plaintiff failed to show that the defendants had committed any unlawful act. The only point of law involved in the decision was that an act which does not amount to a legal injury does not become actionable by reason merely that it is done with a bad intention, or a bad motive. See per Lord Macnaghten[5]. This case, therefore does not govern the present, in which it is not open to the Court to examine the evidence for the purpose of inquiring whether it justified the conclusion of the jury that the defendants had been guilty of a conspiracy to injure the plaintiff.

The case of Quinn v. Leathem[6] also turned upon the facts, which were very different from those found by the jury in the present case. In the discussion of both cases frequent reference was made to a passage in the judgment of Bowen L.J., in Mogul Steamship Co. v. McGregor, Gow & Co.[7]:—"Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong: (see Bromage v. Prosser44 B. & C., 248.; Capital and Counties Bank v. Henty57 App. Cas., 741, at p. 772, per Lord Blackburn.). The acts of the defendants which are complained of here were intentional, and were also calculated, no doubt, to do the plaintiffs damage in their trade. But in order to see whether they were wrongful we have still to discuss the question whether they were done without any just cause or excuse. Such just cause or excuse the defendants on their side assert to be found in their own positive right (subject to certain limitations) to carry on their own trade freely in the mode and manner that best suits them, and which they think best calculated to secure their own advantage."

Lord Herschell, commenting on this passage in Allen v. Flood[10], remarked:—"The notion that there may be a difference in this respect between acts affecting trade or employment and other acts seems to be largely founded on certain dicta of Bowen L.J., in the case of The Mogul Steamship Co. It must be remembered that these were obiter dicta, for the decision was that the defendants were not liable. The passage perhaps chiefly relied upon is the following:—Now intentionally to do that which is calculated in the ordinary course of events to damage, and which does in fact damage, another in that other person's property or trade, is actionable if done without just cause or excuse. Such intentional action when done without just cause or excuse is what the law calls a malicious wrong. It will be noted that the learned Judge here makes no distinction between acts which interfere with property and those which interfere with trade. For the purpose then in hand the statement of the law may be accurate enough, but if it means that a man is bound in law to justify or excuse every wilful act which may damage another in his property or trade, then I say, with all respect, the proposition is far too wide; everything depends on the nature of the act, or whether it is wrongful or not." Subject to this limitation, which, with all respect, seems to be implied in the concluding words of Bowen L.J., not quoted by Lord Herschell, that very learned Judge, as we understand him, accepted the doctrines propounded in the passage which he was criticising, and which, in our opinion, are good law.

In Quinn v. Leathem[11], Lord Lindley said:—"As to the plaintiff's rights. He had the ordinary rights of a British subject. He was at liberty to earn his living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously pratically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact—in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified—the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I understand it, is not so defective as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen L.J. in his admirable judgment in the Mogul Steamship Company's Case123 Q.B.D., 598, at pp. 613, 614., may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen v. Flood2(1898) A.C., 1. to be opposed to it."

We do not think it necessary to discuss in further detail the various opinions expressed by the learned Judges who took part in the decisions of these cases, and the other cases referred to in the arguments addressed to us, but we think that they establish some rules or doctrines applicable to all actions for what are called malicious injuries, which will go far towards solving the questions raised in the present case.

The first rule is that any interference with the rights of another, which in fact occasions damages to him, is actionable, unless such interference is authorized, or justified, or excused by law. In this proposition the term "rights" includes the right which every man possesses to the free enjoyment, subject to any specific rule of law, of his personal liberty; which, again, includes freedom to make, subject to any specific rule of law, such employment of his capacities, mental or physical, as he may think fit, and to invite the co-operation of any person he may think fit in any enterprise in which he proposes to engage. On this point we need only refer to the authorities quoted by Lord Brampton in Quinn v. Leathem[14] viz.:—"Primâ facie it is the privilege of a trader in a free country in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. If the law has in any other matter regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion." (Per Alderson B., delivering the judgment of the Exchequer Chamber in Hilton v. Eckersley[15]):—"All are free to trade upon what terms they will." (Per Lord Halsbury L.C. in the Mogul Steamship Co.'s Case[16]):—"The liberty of a man's mind and will, to say how he should bestow himself and his means, his talents and his industry, was as much a subject of the law's protection as is that of his body." (Per Bramwell B., in R. v. Druitt[17]):—"Every person has a right under the law, as between himself and his fellow-subjects, to full freedom in disposing of his own labour or his own capital according to his will. It follows that every other person is subject to the corresponding duty arising therefrom, and is prohibited from any obstruction to the fullest exercise of this right, which can be made compatible with the exercise of similar rights by others." (Sir W. Erle on Trade Unions, p. 12)—Familiar instances of acts authorized, or absolutely protected by law, which may be harmful to the intangible right in question are afforded by statements made in Courts of Justice, and by prosecutions of persons actually guilty of offences. Competition in trade, which at common law is absolutely lawful, is another instance.

Hence we obtain the further proposition that—

II.

Interference which results merely from the exercise of free competition in trade is not wrongful, and is, therefore, not actionable. Of this rule, the Mogul Steamship Co.'s Case[18] is an illustration.

But in the infinite variety of human affairs, it often happens, and must happen, that acts which in themselves are neutral, i.e., which are neither absolutely authorized nor expressly forbidden by law, have the effect of interfering with the rights of some person to his damage, although the mind of the doer was not at all directed to the person to whom the damage is caused, and the damage is a mere incidental or accidental consequence of the act. Now, the common law is characterized by a kindly regard for the infirmities of human nature, and never lays on men's shoulders a burden too grievous to be borne. It does not, therefore, hold the doer necessarily responsible for damage arising under such circumstances, but requires a further inquiry to ascertain whether the damage was really a mere incidental or accidental result of an act not wrongful, or whether the doer took advantage of the circumstances to enable him to do some harm to another person whom he desired to injure. In the latter case he is not entitled to the benefit of the ambiguous or neutral circumstances. But the burden of showing that the doer did so take advantage lies upon the party alleging the fact. This is, we think, the principle which governs actions for malicious prosecutions, and actions for defamation on privileged occasions, as well as actions such as that now before us. It may be expressed in the following further propositions:—

III.

If the circumstances attending an act which occasions interference with the rights of another, and which is, primâ facie, lawful, are such that the interference may be a merely incidental or accidental consequence of the act, the act is to be regarded as, primâ facie, neutral, and as being justified or excused, until the contrary is shown; and the burden of displacing the presumption of innocence lies on the person complaining.

IV.

Acts not forbidden by law, and done in the exercise of the right of personal liberty, or in the discharge of a duty, though of imperfect obligation, which the doer owes, or believes he owes, to himself, or to another, are, primâ facie, lawful. But

If the interference is not in fact merely incidental or accidental, but is deliberate, and is actuated by a desire to do harm to the person whose rights are interfered with, whether accompanied or not by some other motive, the protection which would otherwise arise from the circumstances is excluded.

Of this rule, actions for malicious prosecution and actions for defamation on a privileged occasion afford familiar instances. It used to be said that malice, so called, was an essential element of the cause of action in these cases; and hence difficulties arose as to imputing malice, which, it was said, imports a state of mind, to a corporation. This particular difficulty is now removed by the recognition of the principle that the liability of a corporation in such a case attaches on the ground that it is responsible for the acts of its authorized agents. But, while the innocence or wrongfulness of the acts in these cases depends, in one sense, upon the state of mind of the doer, this, properly regarded, is not because that state of mind is an element of the cause of action, but because the state of mind of the doer is such as to deprive him of the benefit of the ambiguous circumstances, which, but for it, would afford him protection. Unless, however, the act complained of is an infringement of a legal right, this question does not arise. Of this the case of Bradford Corporation v. Pickles[19], affords an illustration. In that case, the act complained of was an act done in the lawful exercise of a right of property, and did not involve the infringement of any legal right of any other person. The motive of the doer was, therefore, held to be immaterial. So, in Allen v. Flood[20], and the Mogul Steamship Co.'s Case[21].

VI.

If the interference is the direct result of the carrying out of an unlawful enterprise, propositions III. and IV. have no application, and the cause of action is complete as soon as actual damage follows.

These rules are, we believe, consistent with all the decisions. They appear to us to be in accord with common sense, which is a good test to be applied in ascertaining whether a suggested proposition is, or is not, a rule of the common law.

It appears, then, that cases of this kind fall into three classes—(1) Cases in which the alleged interference is not a violation of any legal right, but is a mere incidental or accidental effect of a lawful act (in this case no action lies); (2) cases in which it is the direct result of an unlawful act (in this case an action lies); (3) cases in which the act is, primâ facie, neutral, and its innocence or wrongfulness depends upon the motive operating on the mind of the doer. Thus, in the cases of malicious prosecution or defamation on a privileged occasion, the existence or non-existence of an improper motive determines the character of the act. In such cases the question is really one of motive, as distinguished from intention. The terms are not synonymous, and confusion has sometimes arisen from a failure to distinguish between them. In some cases either word might be used with substantial accuracy, as in the passage quoted by Lord Macnaghten from Parke B., in his speech in Quinn v. Leathem[22]. For instance, a man forms the intention to kill another, and kills him. His motive for forming that intention may, or may not, be distinct from the intention. It may be a desire for revenge for a real or fancied injury, in which case the motive precedes, and is distinct from, the intention. In other cases, it may be so involved in the intention as to be undistinguishable from it. When a man deliberately intends by his act to do harm to another, it is impossible to say that part, at least, of his motive is not the desire to produce that result. In criminal law, motive, as distinguished from intention, is seldom material. Indeed, at common law, the case of defamation is the only one that occurs to us. In the case of a fraudulent preference under the English bankruptcy law (which depends upon motive), a person who makes a payment with a view to give a preference to a particular creditor obviously intends the creditor to obtain the preference. But in general, the motive which induces a man to form an intention is distinct, and should be distinguished, from the intention itself. This distinction is clearly laid down in sec. 23 of the Queensland Criminal Code. In all cases of interference with liberty, not purely incidental, an intention to interfere may probably be predicted, but it does not follow that the motive is always improper. No doubt, a difficulty often arises in determining the motive by which a person who is charged with a wrongful act was actuated. But this difficulty, so far from being peculiar to cases like the present, is common to all actions for so-called malicious injuries, and the tribunal must ascertain the motive in the best way it can upon the evidence presented to it. The doctrine laid down in Proposition V. seems to have been, in substance, the view taken of the law by Romer L.J., in Giblan v. National Amalgamated Labourers' Union of Great Britain and Ireland[23], and by Real J., in the present case.

Within which class, then, does the present case fall? Clearly, we think, within the second. For, by sec. 543 of the Queensland Criminal Code, any person who conspires with another to injure any person in his trade or profession is guilty of a misdemeanour, and the findings of the jury are, in effect, that the defendants engaged in such a conspiracy, and that the damage complained of resulted from it.

It is suggested that the answer of the jury to Question 7a (b) may modify the finding as to a conspiracy. The rules mentioned in that answer may, we think, be referred to for the purpose of interpreting it. The rule in question is No. 33, and is as follows:—

Having regard to the terms of this rule, the answer of the jury, in our opinion, only amounts to a finding that the defendants, when breaking the law, thought that they were justified in doing so because of a duty which they supposed themselves to owe to their union. This would not be a defence to a prosecution, and we do not think it is a defence to an action for a conspiracy. The doctrine which allows a neutral act, done in the discharge of a supposed duty, and without any desire to cause injury to another, to be treated as innocent, has no application to an act prohibited by positive law. With respect to acts not so prohibited, but which may be rightful or wrongful according to circumstances, the conditions on which the rightfulness or wrongfulness depends are part of the common rule of law governing the case, and determine, therefore, whether the act itself is rightful or wrongful. In our opinion, the findings of the jury also involve a deliberate desire on the part of defendants to injure the plaintiff. In this view their action, actuated by this intention, was itself unlawful, so that, even if the case fell within the third class, the defendants are not entitled to the benefit of the rule expressed in Proposition IV., but are liable under that expressed in Proposition V.

In the view which we take of the law, as applicable to the specific facts found by the jury, it becomes unnecessary to consider the abstract question of what other motives would be improper, or what would be sufficient evidence of an improper motive to be left to a jury, when the rule expressed in the fourth Proposition is set up as a defence.

As to the objection that the defendant Union cannot lawfully be deemed guilty of a conspiracy, we think, and indeed it was not contested, that this Court is bound to follow the decision of the House of Lords in Taff Vale Railway Co. v. Amalgamated Society of Railway Servants[24].

[1] [1905] HCA 50; 3 C.L.R., 132.

[2] (1898) A.C., 1.

[3] [1901] UKHL 2; (1901) A.C., 495.

[4] [1901] UKHL 2; (1901) A.C., 495.

[5] [1901] UKHL 2; (1901) A.C., 495, at p. 508.

[6] [1901] UKHL 2; (1901) A.C., 495.

[7] 23 Q.B.D., 598, at p. 613.

[8] 4 B. & C., 248.

[9] 7 App. Cas., 741, at p. 772, per Lord Blackburn.

[10] (1898) A.C., 1, at p. 139.

[11] [1901] UKHL 2; (1901) A.C., 495, at p. 534.

[12] 23 Q.B.D., 598, at pp. 613, 614.

[13] (1898) A.C., 1.

[14] [1901] UKHL 2; (1901) A.C., 495, at p. 525.

[15] [1855] EngR 573; 6 E. & B., 47, at p. 74.

[16] (1892) A.C., 25, at p. 38.

[17] 10 Cox C.C., 592, at p. 600.

[18] (1892) A.C., 25.

[19] [1895] UKHL 1; (1895) A.C., 587.

[20] (1898) A.C., 1.

[21] (1892) A.C., 25.

[22] [1901] UKHL 2; (1901) A.C., 495, at p. 508.

[23] (1903) 2 K.B., 600, at p. 619.

[24] [1901] UKHL 1; (1901) A.C., 426.

High Court of Australia

Brisbane Shipwrights' Provident Union v Heggie [1906] HCA 4; (1906) 3 CLR 686 (12 March 1906)

HIGH COURT OF AUSTRALIA