Liability in Tort for Causing Economic Loss by the Use of Unlawful Means and Its Application to Australian Industrial Disputes
![handle is hein.journals/adelrev5 and id is 438 raw text is: R. J. Mitchell*
LIABILITY IN TORT FOR CAUSING ECONOMIC LOSS
BY THE USE OF UNLAWFUL MEANS AND ITS
APPLICATION TO AUSTRALIAN INDUSTRIAL DISPUTES'
In 1964 the House of Lords decided Rookes v. Barnard2, launched the tort
of intimidaton as a modem concept, and in so doing threw what are called
the economic or industrial torts into a turmoil. The impact of this case
upon the law relating to industrial disputes was considerable, since the
economic torts have, at least in England, formed the basis of strike-control
tactics. The decision, and subsequent developments, led to considerable
discussion and speculation amongst writers as to the application of torts to
industrial disputes cases3. In deciding Rookes v. Barnard, the House of Lords
showed particular regard for the protection of economic rights and this
approach served to trigger off an absolute avalanche of torts cases in the
English industrial sphere4. These cases led in turn to substantial extensions
and developments in the economic torts.
Such developments are of particular interest in Australia where there
has been a parallel upsurge in the use of the tort weapon in industrial disputes5.
This trend is quite novel, since, in this country, the use of the civil tactic has
traditionally been a neglected industrial weapon'. Furthermore the position
is exacerbated for the Australian trade unionist by the fact that he is, unlike
his English counterpart, generally unprotected by legislation preventing the
* Lecturer in Law, University of Melbourne.
1. Some of the material in this article is drawn from the writer's LL.M. thesis, 'Tort
Liability for Strikes in Australia.
2. [1964] A.C. 1129.
3. It is impossible to list everything written here. Some of the major contributions
are as follows: Hamson, A Note on Rookes v. Barnard, [1961] CL.J. 189;
Hamson, A Further Note on Rookes v. Barnard, [1964] C.L.J. 159; Hoffmann,
Rookes v. Barnard, (1965) 81 L.Q.R. 116; Hughes, Liability for Loss Caused
by Industrial Action, (1970) 86 L.Q.R. 181; Smith, Rookes v. Barnard: An
Upheaval in the Common Law Relating to Industrial Disputes, (1965) 40 A.L.J.
81, 112; Wedderburn, The Right to Threaten Strikes, (1961) 24 M.L.R. 572;
(1962) 25 M.L.R. 513; Wedderburn, Stratford and Son Ltd. v. Lindley, (1965)
28 M.L.R. 205; Wedderburn, Torts Out of Contracts: Transatlantic Warnings,
(1970) 33 M.L.R. 309; and Weir, Chaos or Cosmos? Rookes, Stratford and the
Economic Torts, [1964] C.L.]. 225.
4. Some of the more notable examples are: Stratford and Son Ltd. v. Lindley [1965]
A.C. 269; Camden Exhibition and Display Ltd. v. Lynott [19661 1 Q.B. 555;
Emerald Construction Co. Ltd. v. Lowthlian [1966] 1 W.L.R. 691; Morgan v. Fry
[1967] 2 All E.R. 386; Daily Mirror Newspapers Ltd. v. Gardner [1968] 2 W.L.R.
1239; Torquay Hotels Co. Ltd. v. Cousins [1969] 1 All E.R. 522; Acrow (Automa-
tion) Ltd. v. Rex Chainbelt Inc. [1971] 3 All E.R. 1175; Brekkes Ltd. v. Cattel
[1971] 2 W.L.R. 647.
5. Woolley v. Dunford (1972) 3 S.A.S.R. 243; Sid Ross Agency Pty. Ltd. v. Actors
and Announcers Equity Association [19711 1 N.S.W.L.R. 670; Adriatic Terrazzo
and Foundations Ltd. v. Robinson and Owens (1972) 4 S.A.S.R. 294. There are
numerous other unreported cases. Some of these are listed in Appendix 2 to the
Department of Labour Discussion Papers, prepared for the 1973/74 Industrial
Peace Conference. A discussion of some of these cases may be found in Portus,
Civil Law and the Settlement of Disputes (1973) 15 Journal of Industrial
Relations 281.
6. Owing to a preference for proceedings under the various arbitration provisions:
see Fleming, The Law of Torts (4th ed., 1971), 604: Sykes, Strike Law in Australia
(1960), 146; and see also the comments of Evatt J. in MeKernan v. Fraser (1931)
46 C.L.R. 343, 380.](ViewImageLocal?handle=hein.journals/adelrev5&div=37&collection=&method=preview&ext=.png&size=3)
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Liability in Tort for Causing Economic Loss by the Use of Unlawful Means and Its Application to Australian Industrial Disputes
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