Istra Corp v are ts Bored

Istra Corp v are ts Bored - [1937] HCA 45 - HCA 1937 case summary — Zoe

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it on to the public. This principle has been long estab- lished, although dissemination by broadcasting. being of compara- tively recent discovery, may in itself be novel. The appellant has no exclusive right or property in the races it presents, or in any information connected with those races which may be deemed to be of any interest to members of the public, so as to control the respondents' rights to describe what they actually see (Sports and General Press Agency Ltd. v. " Our Dogs" Publishing Co. Ltd. (1) ; Tolley v. J.S. Fry & Sons Ltd. (2) ). The fact that the information and description are broadcast contemporaneously or simultaneously with the races does not make that broadcasting unlawful. Here there was no trespass by any of the respondents on the land of the appellant. so that the decision in Hickman v. Maisey (3) has no application to this case other than to show that a plaintiff must show a proprietary right to the land on which the alleged nuisance was committed (See also Harrison v. Duke of Rutland (4)). Thus it is shown that there is nothing in the nature of common law copy- right which may be relied upon by the appellant ; there is no right of the appellant which the respondents have infringed ; and there has been no actual wrong in gathering up the information which they treat as news and then disseminate, that is, there was no legal wrong in the acts of the respondents in obtaining and passing on by the means they adopted the information which was available to them by looking over the fence surrounding the appellant's land. There was no collated information of the nature under review in Exchange Telegraph Co. v. Gregory & Co. (5) ; the purposes for which the information was collated were dissimilar. The appellant has not shown that acts of the respondents have deprived it of or injured it in any rights to which it was entitled (Hammerton v. Dysart (Earl) (6) ). Between the acts of the respondents and the matters com- plained of by the appellant there was the intervention of a deliberate choice by the public concerned. The members of the public have

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the right to choose whether they will attend the race meetings or listen in to the broadcast description thereof. If they choose the latter no wrong is committed by the respondents and no damages are occasioned to the appellant by the respondents (Hopkins v. Great Northern Railway Co. (1)). The decisions in Andreae v. Selfridge & Co. Ltd. (2), Ball v. Ray (3) and Crowhurst v. Amersham Burial Board (4) rest in each case upon an active physical inter- ference by the defendant with the plaintiff's land. The " watching and besetting" cases, such as J. Lyons & Sons v. Wilkins (5), are also distinguishable. That case was referred to in Pollock on Torts 13th ed. (1929), p. 240. The court was equally divided in Deane v. Clayton (6) and no judgment was given. Nothing that the respondents transmit causes trouble in relation to the occupancy of the appellant's land; therefore the principle in Rylands v. Fletcher (7) does not apply. The unusual or non-natural user of a defen- dant's land is irrelevant unless it can be shown that such user directly injures or directly interferes with a positive legal right of the plaintiff. The use of the platform for the purpose of overlooking the appellant's land does not constitute an infraction of any legal tight of the appellant to privacy (Chandler v. Thompson (8); Turner v. Spooner (9); Browne v. Flower (10); Johnson v. Wyatt (11); Tapling v. Jones (12) ). The right of the appellant, as owner, to exclude the public from its land and from seeing and obtaining information concerning what is being done thereon, extends only so far as the exclusion is made perfect and effective. The respondents have not prevented anyone from going on to the appellant's land. At common law there is no right of property in the spectacle on the appellant's land, nor have the respondents at any time appropriated the spectacle or what has been referred to as the collated information. Even though loss and damage to the appellant resulted therefrom, the user to which the respondent Taylor put his land was within his rights ;

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platform. An observer standing on the platform is enabled to view the whole of the racing tracks and obtain the collated information to which I have referred. The relation of the defendant corporation and of the defendant Angles to the defendant Taylor is stated by the learned primary judge as follows : - " The defendant, the Common- wealth Broadcasting Corporation Limited, referred to in the evidence . as 2 UW, is a limited company licensed in accordance with regulations under the Wireless Telegraphy Act 1905-1936 of the Com- monwealth of Australia, to carry on the business of broadcasting as a "B" class station. 2 UW derives the greater part of its revenue from advertisements, which are broadcast to listeners together with items of news or of entertainment. The defendant Cyril Angles, with the permission of the defendant Taylor, observes each of the race meetings held by the plaintiff company from the platform erected on Taylor's land, and describes each race by speaking through a microphone and communicating a description of the race, together with other information relating to the competitors, by means of a land line to the studio of 2 UW, whence the descriptions and informa- tion mingled with advertisements are broadcast to listeners in Sydney and the surrounding districts. The defendant Angles is an employee of 2 UW and the defendant Taylor receives from one or other of these defendants a fee of £1 for each time that the platform is used for the purpose mentioned above. . . . I was satisfied," his Honour said, " from a view which I had of the course that the most favourable point for observation was the platform on the defendant Taylor's land. From that position an observer could keep the whole of the tracks under observation and could follow the horses racing down the straight to the winning post, could observe the protest and weight flags and could decipher the numbers of the placed horses as well as the post positions and scratchings displayed on the boards " (1).

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indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence" (Story's Equity Jurisprudence, 1st Eng. ed. (1884), sec. 959 (b), p. 625). "The common law has not proved powerless to attach new liabilities and create new duties when experience has proved that it is desirable. That this was so in the older days was due to the wide scope of the action upon the case. The action upon the case was elastic enough to provide a remedy for any injurious action causing damage . . . When relationships come before the courts which have not previously been the subject of judicial decision the court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the courts." (Salmond on Torts, 9th ed. (1936) (Stallybrass), pp. 18, 19; cf. Pollock, Torts, 13th ed. (1929), p. 22). An action on the case in the nature of nuisance was one of the flexible remedies capable of adaptation to new circumstances falling within recognized principles. This case presents the peculiar features that by means of broadcasting - a thing novel both in fact and law - the knowledge obtained by overlooking the plaintiff's racecourse from the defendants' tower is turned to account in a manner which impairs the value of the plaintiffs occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour's land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff's land to his own commercial ends - a thing made possible only by radio - falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circum- stances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man's right which curtails or impairs his neighbour's legitimate enjoyment of his property is " tortious and hurtful " and constitutes a nuisance. A man has no absolute right

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"within the ambit of his own land" to act as he pleases. His right is qualified and such of his acts as invade his neighbour's property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol. 52, p. 460; vol. 53, p. 3). The plaintiff's case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the comparative merits of racehorses, and it attempts by all reasonable means to give to those whom it admits the exclusive right of witness- ing the spectacle, the competition and of using the collated informa- tion in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier what- ever may be the enterprise he is carrying on and to make any profit- able use to which what he sees can be put, whether in his capacity of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, i.e., the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the informa- tion so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this

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nuisance. But the essence of the wrong is the detraction from the occupier's enjoyment of the natural rights belonging to, or in the case of easements, of the acquired rights annexed to, the occupation of land. The law fixes those rights. Diversion of custom from a business carried on upon the land may be brought about by noise, fumes, obstruction of the frontage or any other interference with the enjoyment of recognized rights arising from the occupation of property and, if so, it forms a legitimate head of damage recoverable for the wrong ; but it is not the wrong itself. The existence or the use of a microphone upon neighbouring land is, of course, no nuisance. If one, who could not see the spectacle, took upon himself to broad- cast a fictitious account of the races he might conceivably render himself liable in a form of action in which his falsehood played a part, but he would commit no nuisance. It is the obtaining a view of the premises which is the foundation of the allegation. But English law is, rightly or wrongly, clear that the natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or of other persons who enable themselves to overlook the premises. An occupier of land is at liberty to exclude his neighbour's view by any physical means he can adopt. But while it is no wrongful act on his part to block the prospect from adjacent land, it is no wrongful act on the part of any person on such land to avail himself of what prospect exists or can be obtained. Not only is it lawful on the part of those occupying premises in the vicinity to overlook the land from any natural vantage point, but artificial erections may be made which destroy the privacy existing under natural conditions. In Chandler v. Thompson (1) Le Blane J. said that, although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, he had never known such an action maintained, and when he was in the common pleas he had heard it laid down by Eyre L.C.J. that such an action did not lie and that the only remedy was to build on the adjoining land opposite to the offensive window. After that date there is, I think, no trace in the authorities of any doctrine to the contrary. In Johnson v. Wyatt (2) Turner L.J. said :

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The defendants have not been content with a mere denial that a tort has been committed. They have ventured upon general reasoning in defence of their conduct, and Mr. Watt in his able argument said that the broadcasting company was a competitor of the plaintiff in the business of entertainment and was equally "entitled to be protected in the legitimate exercise of their trade." This phrase is taken from the well-known judgment of Bowen L.J. in Mogul Steamship Co. Ltd. v. McGregor, Gow, & Co. (1), a case which has occupied some prominence in the judgment of Nicholas J. In the Mogul Case shipowners, in order to force a rival shipowner out of business, combined for that purpose, but employed no unlawful means. But, in the present case, what the broadcasting company does is, by means of broadcasting, to incorporate in its own entertainment, simultaneously with the plaintiff's entertainment, precisely so much of the latter as an expert verbal representation can give, the plaintiff having to expend capital and labour in pro- viding its entertainment, and the company contributing nothing and taking everything. I cannot imagine a case which is further removed from the facts of the Mogul Case or other cases where individuals or groups, being in the same field of commercial enter- prise, choose to engage in fierce competition for custom by making special offers or concessions in return for promises to give exclusive custom. The implied basis of all such competition is that each competitor is providing goods or services to the customer which are entirely the result of its own efforts, and that there is no "appropriation " or " borrowing" of the goods or services of the other. In the Mogul Case Bowen L.J. gave some illustrations of the type of conduct which is not permissible as between trade rivals. It is a profound mistake to suppose that the list was intended to be exhaustive. The classical example of the setting up of a new school the competition of which causes loss and damage to an old school in the neighbourhood only illustrates the principle that mere trade competition does not give rise to liability for tort. The facts of the present case might be analogous to the illustration of the rival schools if it were shown that, by means of broadcasting, television and the like, those conducting the new school listened in to the lessons

At a glance

Court

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Before

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Judgment (243 paragraphs)

Parties