McKernan v Fraser [1931] HCA 54

'The plaintiffs were members, but unfinancial members, of the Federated Dec. Seamen's Union, which was formerly registered under the Commonwealth Gavan putty Conciliation and Arbitration Act, and the defendant was the secretary of that gC} Web Union at Port Adelaide. 'Tho plaintiffs were desirous that the Union should ,, Evatt and," again become registered under that Act and refused to pay the contributions required by its rules until it again became a registered body. Further, the Plaintiffs promoted or at least joined another body known as the Australian Seamen's Union, which attempted to register itself under that Act. About January of 1929 the Adelaide Branch of the Seamen's Union resolved that members of that Union should refuse to sail with members who refused to pay their contributions, In May 1929 the Adelaide Steamship Co. " picked up" or selected the plaintiffs for engagement as greasers on the m.s. Manunda. The defendant then said in substance to the officer who had " picked up" or selected them : - " You can't sign them on. They are unfinancial. If you take these two men, the other crowd won't sign on." The representatives of the shipping company were prepared to allow the plaintiffs to sign the ship's articles, but after communication with the shipping company's head office the picking-up officer asked the six men who had been picked up with the 'plaintiffs whether they would sail if the plaintiffs signed on. The defendant

HIGH COURT (1931, repeated these words to the men who ultimately refused to sail with the plain- tifis. The7shipping company then refused to sign on the plaintiffs, In an action for damages brought by the plaintifis against the defendant for inducing the master and owners of the ship to break their contracts with the plaintifis, alternatively for maliciously coercing the master and owners of the ship not to enter into contracts with the plaintiffs, and alternatively for conspiracy to injure the plaintiffs, the Special Magistrate found that the real reason of the animus against the plaintiffs was that they were active in trying to get a rival union registered, and he gave judgment for the plaintiffs. The Full Court of South Australia upheld this decision. On appeal to the High Court,

Held, by Rich, Divon, Evatt and McTiernan JJ. (Gavan Duffy C.J. and Starke J. dissenting), that judgment should have been given for the defendant,

By Rich, Dizon and McTiernan JJ. : - (1) The " picking-up" or selection of the plaintiffs was merely preliminary to a contract and did not itself amount to a contract; therefore, no contractual relations were established between the plaintiffs and the shipowners, and, consequently, no breach of such relations was procured by the defendant. (2) The defendant and the other members of the Union committed no actual or threatened violation of sec. 100 of the Industrial Code 1920 (No. 1453) of South Australia, which makes penal the doing of any act or thing in the nature of a strike, as what was done or threatened did not fall within the definition of a "strike" in sec. 5 of such Act, because in refusing to sign the articles or offer for or accept engagement, the men would be doing no more than refusing to begin a new employment: the word " strike " usually indicates a cessation or relinquishment of work, or at least the failure to resume work after a normal interruption or suspension; and in a penal provision the word " strike" ought not to receive an interpretation wide enough to include the concerted refusal of men to enter into a new employ- ment of long duration, even although that employment was offered according to a regular customary practice by which labour is habitually obtained : and, consequently, illegal means were not actually adopted or threatened at the place of engagement. (3) For a combination or acts done in furtherance of the combination to be actionable where the end is not in itself unlawful and the means are not unlawful and no threat of illegality is made in further- ance of the combination, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and this must have been the sole, the true, or the

dominating or main purpose of their conspiracy: it is not enough to adopt a course which necessarily interferes with the plaintiff in the exercise of his calling and thus injures him; nor is it enough that this result should be intended if the motive which actuated the defendants was not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests; and what actuated the conduct of the Union branch and of the defendant was to benefit themselves in obtaining employment, and, therefore, - the cause of action in conspiracy was not established,

Evatt J.: - (1) The circumstances of the case showed that all at the ; recognized that the " selection " was provisional, and that there was no binding agreement until the articles were signed ; there was therefore no cement by the defendant of any breach of contract. (2) The action at the pick-up did not constitute » breach of sec. 100 of the South Aus- n Industrial Code 1920. (3) The combined action of the defendant and the unionists was taken in deliberate pursuance of a previous plan against "the rival unionists, and for the express purpose of depriving the plaintiffs as members of the rival Union of their chance of employment. In spite of the cause of action based on " conspiracy to injure " failed on two distinct _ grounds, namely, (a) the injury thus sustained by the plaintiffs was not inflicted 'wantonly or out of any purely personal hatred or malevolence, although the ts strongly disliked the policy of their rivals; (b) even if McKernan's conduct was inspired by purely personal malevolence towards the plaintiffs, he was not liable for conspiracy unless the other parties to the agreement were also liable, and McKernan's personal malevolence was not imputable to such 'other parties. Dictum of McCardie J. in Pratt v. British Medical Association, 1919) 1 K.B, 244, at p. 279, dissented from.

Decision of Supreme Court of South Australia (Full Court): MeKernan v. Fraser, (1930) S.A.S.R. 364, reversed.

from the Supreme Court of South Australia. on Fraser and John Stapleton brought this action in the Local at Port Adelaide against Petér McKernan, who was the of the Seamen's Union there, alleging : - (1) The plaintifis nd were at the times hereinafter mentioned greasers and each 'on 23rd May 1929 prior to the wrongful acts of the defendant er complained of entered into a contract with the master owners of the motor-ship Manunda, then lying at Port lelaide to serve on the said motor-ship as greasers for a period of ix months at the monthly wage of £18 7s. 6d. (2) The defendant g that the said contract had been entered into as aforesaid ly and wrongfully and with intent to injure the plaintiffs ired and induced the said master and/or owners to break their ets and to refuse to perform the same and the said master owners did by reason of such procurement and inducement and refuse to perform such contracts whereby the plaintifis vectively lost the benefit of the said contracts and suffered great and inconvenience. Alternatively, the defendant with the e and in manner aforesaid procured and induced George

Eric Middleton a responsible officer of the said master and/or owners to dismiss the plaintiffs and break the said contracts. (3) Further and in the alternative the defendant has maliciously and wrongfully - and with intent to injure the plaintiffs intimidated and coerced the master and/or owners and/or the said George Eric Middleton not to enter into contracts with the plaintiffs for the services of the plaintiffs whereby the plaintiffs have suffered damage. (4) Further and in the alternative the defendant unlawfully and maliciously and with intent to injure the plaintiffs conspired with Henry Martin and Daniel Hannah and others whose names are unknown to the plaintiffs to induce the said master and/or owners and/or the said George Eric Middleton to break the said contracts or alternatively to intimidate and coerce the said master and/or owners and/or the said George Eric Middleton to break the said contracts and/or not to enter into contracts with the plaintiffs for their services whereby the plaintiffs have suffered damage. The plaintiffs each claimed - £100 damages from the defendants.

The Special Magistrate who heard the action entered judgment for each plaintiff for the sum of £100. He found for the plaintiffs in respect of the first and third causes of action alleged in their claim.

On appeal to the Supreme Court of South Australia all the Justices held that the judgment might be supported on the ground that the means by which the defendant procured the shipowners to break their contracts or to refuse to enter into any contract with the plaintiffs, as the case might be, involved an illegal act under the Industrial Code 1920 of South Australia. And Piper J. also held that a contract was entered into between the plaintiffs and the master and owners of the ship Manunda which the defendant induced them to break : - McKernan v. Fraser (1).

The facts are fully stated in the judgments hereunder.

Nelligan, for the appellant. This was an action for damages against McKernan for preventing these men from getting work. The claim is based on the ground that there had been a contract, and, if there were no contract, that McKernan prevented a contract being made. The Special Magistrate found that there had been a

et and that there had been a breach of it. There was, however, H. ©. or A- © contract made between the shipowner and the respondents. Hor, he Full Court affirmed the decision of the Magistrate on the ground McKeawax the means by which the appellant procured the shipowners to Fx. pool their contracts or to refuse to enter into any contract with h respondents, as the case might be, involved an illegal act under the Industrial Code of South Australia. There was no intention on he part of the respondents or the shipowner to make a complete until the articles were signed. No articles having been signed by the master or the men, there was no final and completed greement, though it may have been that the appellant prevented , contract being made. Where it is shown clearly by the conduct f the parties that there should be no final agreement until the es are signed, the mere picking-up of men will not constitute tract. The Court took the view that the selection at the up place amounted to an engagement which would subse- ntly be embodied in articles. It is necessary to have the articles gned in accordance with sec. 46 of the Navigation Act. Where a tatute requires an agreement to be made in writing and it is not in writing, it is strong evidence that the parties did not intend agreement to amount to a final and complete agreement. The ution of the parties at the picking-up place was no more than select certain men and not to make a final agreement. If there re no contract and the men acted bona fide in the interests of trade, and their object was found to be such, no action would The real reason why the appellant acted was because the pondents were active in setting up a rival organization which working in conjunction with the shipowners. Vickerson v. owe (1) and Re Great Eastern Steamship Co. (Claim of Williams) are distinguishable, as in each of those cases the selection went nd mere negotiation and there was an actual engagement and rmance under it (Ridgway v. Wharton (3)). As the articles not signed, there was no contract ; alternatively, if it were not y to have the articles signed to make a final contract, there no sufficient evidence to prove a contract. The matter was

(is 1 K.B. 462, at p. 463. Ex. 1287, at p. 1297; (1857) 6 H.L.C.

)) 53: LT. 594. 238; 11 E.R. 1287. 3 DeG. M. & G. 677; 10

still in the stage of negotiation. Counsel referred to the Industrial Code 1920 (8.A.), sees. 5, 100, 129, 130. There was no strike within the meaning of sec. 5 or at common law. But if unlawful means were employed the combination might give rise to a claim for damages (Vasey v. Port Adelaide Working Men's Associate Branch - of the Waterside Workers' Federation of Australia (1) ; Williams Bros. (Hull) Ltd. v. Naamlooze Vennootschap W. H. Berghuys Kolenhandel (2); Sorrell v. Smith (3)). The Union acted lawfully, and for the purpose of advancing its own benefit. The questions of law in issue are (1) whether lawful means were employed, and (2), assuming that no unlawful means were employed, were the men entitled to act as they did. The William Bros. Ltd. Case (4) is distinguishable as it was based on certain findings of fact which do not apply here. On the question of jurisdiction counsel referred - to Farrer v. Close (5); Russell v. Amalgamated Society of Carpenters and Joiners (6). Whatever harm was inflicted on an individual, it is clear that the action was directed towards a class and for the - purpose of benefiting those who inflicted the harm, and not for the purpose of injuring those on whom the harm was inflicted. [Counsel referred to Sorrell v. Smith; Lumley v. Gye (7); Allen v. Flood (8); Quinn v. Leathem (9); Read v. Friendly Society of Operative Stonemasons of England, Ireland and Wales (10); Conway - v. Wade (11); Davies v. Thomas (12); Ware & De Freville Ltd. v. Motor Trade Association (13); Reynolds v. Shipping Federation Lid. (14) ; Hardie & Lane Ltd. v. Chilton (15); White v. Riley (16).

Skipper, for the respondents. In this case, the shipowners having agreed with the Union that only unionists should be employed, objection would not have been raised if McKernan had gone to the employers and objected to the employment of these men as being unfinancial members of the Union; but pressure was brought to

(10) (1902) , at p.737. (1L) (1909) , at pp. dL, 518. (12) (19: 189, at p. 198.

(18) (1921) 3 K.B. 40. (14) (1924) 1 Ch. 28. (15) (1928) 2 K.B. 306. (16) (1921) 1 Ch. 1

'on the shipowners under which the employers were compelled e the respondents. The appellant destroyed the engage- even putting it short of contract. The unionists used a strike coercive means and successfully sought to force the employers ik the agreement. The means adopted by McKernan were ive, and such as were not justified in law. Under the agreement he Union had made with the shipowners, the Union was bound to upply a crew and to give the shipowners free selection. Fraser engaged to serve on the Manunda under the ship's articles, and [cKernan caused a breach of that agreement (Niesmann v. Colling- (1)). The articles had been signed by the shipping-master d the respondents had a good cause of action against the shipping mpany. [Counsel referred to Giblan v. National Amalgamated murers Union of Great Britain and Ireland (2) and Brisbane prights' Provident Union v. Heggie (3).] The acts of inter- rence here are deliberate, and are not incidental to carrying on business and are not accidental. It does not matter whether e terms of the contract were explicit or not. There were an er and an acceptance, and a contract had been made. The | were willing to sign the articles and would have done so if y had not been interfered with (Salmond on Torts, 7th ed., pp. 605). McKernan tried persuasive measures and, those failing, ie threatened a strike which was in violation of the South Aus- Industrial Code. Had he merely endeavoured to dissuade employers from taking these men, and had there been no con- ded contract, the respondents might not have been entitled to c They have, however, proved a combination with intent njure and a combination wrongfully to injure, though the means have been justified if the provision in the Industrial Code had sted, but that Act makes the action illegal. To complete the

tract there was nothing for the parties to negotiate about, though he articles had to be signed before the ship went to sea.

(1) (1921) 29 LR. 17, (2) (1903) 2 K.B, 600, (8) (1906) 3 CLLR. 686,

H.C. or A. The following written judgments were delivered : -

ey Gavan Durry C.J. anp Starke J. The plaintiffs in this action - McKerxay are greasers and they brought an action in the Local Court at Port Fraser, Adelaide against the defendant, who is the secretary of the Seamen's Union there. In their claims the plaintiffs alleged three causes of action. The first was that the defendant induced the master and owners of the motor-ship Manunda to break their contracts with the plaintiffs engaging them as greasers on the ship for a period of six months at a monthly wage of £18 7s. 6d. The second was that the defendant maliciously, and wrongly, and with intent to injure the plaintiffs, intimidated and coerced the master and owners of the Manunda not to enter into contracts with the plaintifis for the service of the plaintiffs, whereby they lost employment. The third was that the defendant, Henry Martin, Daniel Hannah and others

combined or conspired together, with intent to injure the plaintifis

in their calling as greasers, (a) to induce the master and owners of the ship to break their contracts of employment with the plaintiffs, (b) or to intimidate or coerce the said master and owners to break the said contracts, (c) or to intimidate or coerce the said master and owners not to enter into contracts with the plaintiffs for their service, whereby the plaintiffs were damaged.

The Special Magistrate who heard the action entered judgment for each plaintiff for the sum of £100. He found for the plaintifis in respect of the first and third causes of action alleged in their claim. On appeal to the Supreme Court of South Australia all the Justices held that the judgment might be supported on the ground that the means by which the defendant procured the shipowners to break their contracts or to refuse to enter into any contract with the plaintiffs, as the case might be, involved an illegal act under the Industrial Code 1920. But Piper J. also held that a contract was entered into between the plaintifis and the master and owners of the ship Manunda which the defendant induced them to break.

In our opinion, the judgment should be supported. It does not - appear to us necessary to consider whether any contract of service was concluded between the master or owners of the Manunda and the plaintiffs, who were selected, or " picked up" as the phrase is, for engagement. Nor isit necessary to inquire whether the defendant

unlawful means under the Industrial Code in inducing the 4. ©. oF A. and owners of the ship Manunda not to employ the plaintifis - sers. Since the decision of the House of Lords in Sorrell v. McKensax (1) it must be taken as settled in English law that "a prssen, tion of two or more persons wilfully to injure a man in his «5 puay or calling is unlawful and, if it results in damage to him, is stake. ble. If the real purpose of the combination is, not to injure , but to forward or defend the trade of those who enter into , then no wrong is committed and no action will lie, although ge to another ensues." According to Lord Dunedin in the case (2), the effect of Allen v. Flood (3) and Quinn v.

them (4) is " to settle beyond dispute that in an action against individual for injury he has caused to the plaintiff by his action, ¢ whole question is whether the act complained of was legal, and tive or intent is immaterial; but that in an action against a et of persons in combination, a conspiracy to injure, followed by injury, will give a good cause for action, and motive or

when the act itself is not illegal is of the essence of the

iracy." The tribunal " must be satisfied that there has been s conspiracy, a common intention and a combination on the part

'the defendants to injure the plaintiff in his business, and that acts must be proved to have been done by defendants in furtherance of i - - which had inflicted actual money loss upon the plaintiff Je" (6). ang in the present case are not in dispute, though possibly

| minds would not draw the same inferences from these facts. the plaintiffs and the:defendant belonged to an association known 'the Federated Seamen's Union. The defendant was the secretary Union at Port Adelaide. The Union has been registered as ganization under the Commonwealth Conciliation and Arbitration lct but its registration had been cancelled, apparently owing to its Sco nduct or that of its members, and it was an unregistered body ll times material to this action. The plaintiffs were desirous 'the association should again become a registered organization d refused to pay the contributions required by its rules until it 1925) A.C. 700. (3) (1898) A.C. 1.

1925. A.C., at p. 724, (4) (1901) A.C. 495. (5) (1925) A.C., at p. 721.

again became a registered body. They were thus unfinancial members but had not ceased to be members of the Union. Further they promoted, or at least, joined another body known as the Australian Seamen's Union, which attempted to register itself as an organization under the Commonwealth Conciliation and Arbitration - Act. About January of 1929 the Adelaide Branch of the Seamen's Union resolved that members of the Seamen's Union refuse to sail with members who refused to pay up their contributions and that shipowners and all branches be so informed. Sometime in May the defendant informed the manager of the Adelaide Steamship Company that trouble might arise on the water-front because there were two factions among the seamen and if members of one faction

were engaged then members of the other faction might cause trouble, - The fact that some members of the Seamen's Union were refusing to pay their contributions to the Union, and so were unfinancial members, may have been referred to, but that it was at the root of the trouble does not appear to have impressed itself upon the manager of the shipping company. The matter, however, came to a head on the 23rd of May 1929 when the Company proceeded to " pick up"

or select men for engagement on the motor-ship Manunda. The plaintiffs were " picked up" or selected, but the defendant said in substance to the officer who had " picked up " or selected them:

• You can't sign them on; they are unfinancial. If you take these two men the other crowd won't sign on, and the sailors won't - go into the yard." The Superintendent under the Navigation Act

was prepared to allow the plaintifis to sign the ship's articles and - so was the picking-up officer ; but he communicated with his head - office, and ultimately told the defendant that he would ask the other selected men whether they would "sign on" with the plaintifis. The picking-up officer thus states what followed : - " I went out in - the yard with the eight men and the rest of the men were standing near by. I said to the six men who had been selected with Stapleton and Fraser : ' Will you sail if the other two men sign on?' The defendant repeated these words after me. There was a hesitation. One man spoke up and asked what the conversation over the phone - was between Hayter and the Company's office. I replied that has

nothing to do with the question asked. I repeated the request,

ou men sign on if these other two men sign on also?" After minutes one man said : 'I won't sign on'; then a couple of ites later the rest of them said : ' We won't sign.' I then handed « the discharges to Stapleton and Fraser and selected two fresh Tcould not accept them. It would mean holding up the ship." is clear enough on these facts that the defendant and members ,Seamen's Union were all acting together, i.e., in combination, e phrase is. It is quite legitimate in many circumstances for et of men to object to work with another man or another set of and so to inform an employer (White v. Riley (1) ). But they justified in combining to prevent and in fact preventing a rkman from obtaining any employment in his trade or calling ly because they wish to punish him. So we understand Sorrell ith (2) and Giblan v. National Amalgamated Labourers' Union (3). The case, therefore, reduces itself to the question whether defendant and his fellows combined together to withdraw the of men of the Seamen's Union from the shipowners with it to injure the plaintiffs.

he Special Magistrate, who saw and heard the witnesses, had no that the men, instigated by the defendant and acting with u, refused their services to the shipowners with intent to injure ntifls. 'I have come to the conclusion," said he, " that all 'talk about the plaintifis being unfinancial is absolutely insincere. is all moonshine. The real reason of the animus against the fis is that they were active in trying to get a rival union d in the Federal Arbitration Court. The plaintiffs could be attacked on personal grounds, so the assertion that they were , although true as regards defendant's Union, was merely retext to damage them." This finding, we think, is open on the . The Union rules doubtless provided what privileges and ould be withdrawn from members who are unfinancial, and, if n were registered, contributions payable under itsrules might ed in any Court of competent jurisdiction (Commonwealth and Arbitration Act 1904-1930, sec. 68). According to Magistrate the overdue contributions on the part of

0. ae) at p. 13, (2) (1925) A.C. 700. (3) (1903) 2 K.B. 600.

each plaintiff only amounted to a sum of £1. In the face of facts such as these, it is difficult to believe that the action of the defendant and his fellows was dictated solely or at all by a desire to forward or protect their own interests. The real object of that action was to punish the plaintifis and prevent them obtaining employment as greasers anywhere in the Commonwealth. The combination, the intent to injure the plaintiffs and the resulting damage were estab- lished to the satisfaction of the Special Magistrate and on evidence upon which any reasonable man might act, and we see no reason to disturb his findings.

Consequently, in our opinion, the judgment below should be supported and this appeal dismissed.

Ricu J. I have read the judgment of my brother Dizon and agree with it.

Drxon J. The Federated Seamen's Union of Australasia was registered as an organization under the Commonwealth Conciliation and Arbitration Act. In the year 1925 its registration was cancelled. It thereupon became a voluntary association of persons, unless and so far as it possessed or obtained a corporate or quasi-corporate character from some State enactment. In fact it appears that the Union, or some branches of it, had been registered under Part I. of the Industrial Arbitration Act 1912 to 1922 of New South Wales and under the Industrial Conciliation and Arbitration Act of Queensland.

In 1925 an agreement was made between the Union "for and on behalf of itself, its officers and members," and the Commonwealth Steamship Owners' Association " for and on behalf of itself and its members" including the Adelaide Steamship Company. This agreement described in detail the rates of pay and the conditions of employment to prevail upon vessels of the shipowners in respect of members of the Union. It contained an undertaking and agree- ment by the Union for itself, its officers and members, to man all vessels as soon as required to do so by the owners, and not to interfere with the free selection and engagement of crews or individual members of crews. The registration of the Union in New South

jales and Queensland did not, in my opinion, change its status ewhere, nor did it affect the operation of the agreement upon ers employed or engaged outside those States, at any rate if they were not members of the New South Wales and Queensland

n . Accordingly in South Australia the agreement amounts toa contract made by the persons appointed to manage a voluntary tion for and on behalf of its members. It follows that, the agreement may bind the funds of the Union, an vidual member is not contractually bound unless, being a member the time of the agreement, he authorized or ratified its making or vas bound by rules which authorized the Committee of Management to contract in such a matter on his behalf. It does not appear whether any such rule existed or not.

In the year 1928 the officials holding office in the Union were recalled" by a general meeting or meetings and others were ppointed in their stead. Among those so appointed was the appellant, who became secretary of the South Australian Branch of the Union. His right to assume office was not undisputed, but t does not appear that the removal of the previous secretary and

appointment of the appellant were irregular. The Branch nsisted of some five hundred members, and of these about one seem to have been opposed to the policy of the new régime.

tival union was set up and both Unions applied for registration

u the Commonwealth Conciliation and Arbitration Act. Many ers of the old Union, who espoused the new Union, refused

to pay their subscriptions to the old Union upon the ground that

g those who took this course were the two respondents. On h January 1929 a meeting of the Branch discussed the matter.

name. The meeting resolved that if the men who had refused y their subscriptions were picked up, the members of the would refuse to sail with them and instructed the secretary inform the shipowners not to pick up any of these men as it use unnecessary trouble," and "to inform all branches of men's names." On 17th January 1929 a special meeting of inch adopted another resolution, "that all members who

refused to pay their contributions would either have to pay up or leave their ship," and requested other members of the crew not to sail with them. On 26th March 1929, at a stop-work meeting of the Branch, it was resolved that '' these men be asked to leave the meeting and all branches be informed of the names of the men who refused to pay their contributions."" In May 1929 a crew was needed for the m.s. Manunda, owned by the Adelaide Steamship Company, and on 27th May the articles of the ship were opened by the Master. On or shortly before that date the appellant interviewed the acting manager of that Company and informed him of the rival factions in the Union and of the attempt to form another union, and gaye him to understand that if their opponents were picked up the others would cause trouble ; probably he said that the men had instructed him to say that they would not sail with " unfinancial '? members. On the following day, for the purpose of engaging the engine-room staff and afterwards the crew, the engineer of the ship and an officer of the Company, a shipping-clerk, attended at the place near the Mercantile Marine Office in Port Adelaide where it was customary to pick up or engage seamen. The ordinary practice was observed. A notice was chalked on a board outside the yard giving the name of the ship and the ratings that she required. The men gathered opposite. The appellant was present as Union secretary. He came in response to a message from the Company. The selection of eight greasers for the engine-room was the first task. The appellant told the crowd of men that eight greasers were wanted and a large number of men, about fifty, came into the pick-up yard, among them the two respondents. The engineer picked out men, one by one, who appeared suitable. As he picked out a man he called for and examined his discharge. If he decided to select him he handed his discharge to the shipping-clerk to hold and he told the man to stand on one side. After four greasers had been selected in this manner, the engineer picked out the respondent Fraser, examined his discharge, handed it to the shipping-clerk and told Fraser to stand aside. The appellant immediately asked him for his Union book and, having obtained it, turned to the engineer and told him he could not take the man because he was "unfinancial." The engineer replied that he had nothing to do with that. Fraser left :

yard to see the Superintendent, and returned saying that the H- ©. or A. lipping-master said his papers were in order and he could sign on. pos

more men were then chosen, but the seventh greaser picked Makes it by the engineer was the respondent Stapleton. The appellant pycsen.

jected to him on the same grounds and received the same answer. leton saw the Superintendent and returned with the same When the eighth greaser had been selected, the appellant that two more must be picked up in lieu of the respondents, the other men would not sign the articles with them and that sailors would not come into the yard for engagement. The shipping- rk and the engineer then went to the telephone in the shipping- er's office to communicate with the acting manager of the ny. The appellant went with them and heard what was said to the acting manager but not what was said by him. The

of the men picked up for the engine-room, and, unless two men picked up in their place, the others would not sign on and e would be no picking-up of sailors. The acting manager, after ration, said the ship must get away, and instructed him to k the other men themselves whether they would sign on, and, if refused, to pick up two other men in lieu of the respondents.

men selected would sail if the respondents signed on. The lant repeated the question. One man in the yard asked what had taken place in the office. The engineer replied that it had g to do with the question. Another said there were plenty ho would sail if they did not ; but at length one man said he would sign on if the respondents did, and then the rest of the greasers refused to sail with them. The respondents' discharges were 'upon handed back to them and two more greasers were selected, sailors came into the yard, a full crew was selected and the were signed.

'The respondents then sued the appellant in the Local Court of Adelaide for damages representing loss of wages and sustenance, they recovered upon causes of action alleging that the appellant ly and maliciously procured the shipowners to break racts entered into by selecting them as greasers, and that the

appellant had conspired with two of the greasers and others to injure the respondents or to intimidate and coerce the shipowners to break

: their engagements or not to enter into contracts with the respondents.

The judgment of the Local Court was affirmed in the Supreme Court of South Australia, whence this appeal has been brought by special leave.

The first question for consideration is whether a contractual relationship was established between the respondents and the shipowners by what took place in the yard before they agreed to replace the respondents by two other greasers. There are decisions to the effect that, notwithstanding the provisions of the Merchant Shipping Act upon which secs. 46 and 47 of the Commonwealth Navigation Act 1912-1926 are based, a valid contract of service may be made by a seaman before signing articles although service at sea is included in the contract (Vickerson v. Crowe (1) and Haws y. Brown (2); and see Thomson v. Hart (3) and Re Great Eastern S.S. Co. (4); but compare Bell v. Mansfield (5) ). But assuming the statute allows a seaman to make such a contract of service, or at any rate to make with the shipowner a mutually binding contract to sign articles, the question remains whether upon a proper interpretation of what took place in the yard the shipowners by their engineer and shipping-clerk did then and there make such a contract immediately with each of the respondents. The wages and conditions of employment had been established by the agreement of 1925 between the Union and the shipowners, the ship was in a trade in which running agreements with the crew are made of the maximum duration, namely, six months, her articles had been opened and in any case were not likely to contain any unusual stipulations. Thus, in the nature or terms of the engagement there was no obstacle to the parties immediately giving their final mutual assent. On the other hand, the practice of picking wp seamen was regulated, not merely by custom, but also in some respects by express provisions of the agreement between the Union and the shipowners. The place of engagement is fixed (subject to some exceptions) at the

(1) (1914) 1 K.B. 462. (4) (1885) 53 L.'T. 594. (2) (1917) 117 L.. 408, (5) (1893) 19 V.L.R. 165; 14 ALT. (3) (1890) 18 R. (Ct. of Sess. Cas. 300.

e Marine Offices or the adjacent buildings or land. The #- ©. or A. purpose of this provision is that articles may be signed pus re the Superintendent as soon as the men are selected. A McK e provides that if a seaman is " engaged " and the ship's officer pyasen. his discharge and "he is afterwards not engaged" the shall be paid the sum of fifteen shillings. This provision ows that before the clause was adopted shipowners and seamen re considered to have a locus panitentia after picking up. The , then, could not have been regarded as amounting to a cluded agreement to serve or to sign articles. The whole ent bears internal evidence of having originated in the ial regulation of the Commonwealth Court of Conciliation Arbitration which doubtless governed the relation between er and seamen until the Union's registration was cancelled.

amount to a contract with the man to pay him fifteen shillings he is not signed on, but it rather seems to recognize that picking- p amounts in itself to no contract, and to impose upon the ship- an external obligation as an award might do, but by way of i with the Union. When all this is considered with the y control of the contract of service and its making which » statute confers upon the Superintendent, the proper conclusion ears to be that picking-up is merely preliminary to a contract 1 does not itself amount to a contract. From this it follows that 0 contractual relations were established between the respondents

shipowner and, so, that no breach of such relations was procured y the appellant. therefore becomes necessary to consider the respondents" use of action in conspiracy. This cause of action is put upon wre than one ground. It is said that the appellant was party to a ition to interfere with the respondents in the exercise of aeir calling by the use of unlawful means, or by the threat of la means. The pressure which the appellant brought to 'upon the shipowners to induce them to refrain from taking ie respondents upon the ship's articles is alleged to amount to or lve an actual or threatened violation of sec. 100 of the ial Code 1920 of South Australia. This section makes penal

the doing of any act or thing in the nature of a strike. Sees. 129 and 130 render liable, as principal offenders, persons who are concerned in the commission of such an offence, or incite, instigate: or counsel or encourage its commission, and persons who attempt to commit it. The statute defines "strike," but "without limiting the meaning of the term" (sec. 5). What was done or threatened does not fall within the description contained in the statutory definition, because, in refusing to sign the articles or offer for or accept engagement, the men would be doing no more than refusing to begin a new employment. But the Judges of the Supreme Court considered that there had been a general concerted refusal of the greasers to work and a threat of a general concerted refusal by the - sailors, because of an alleged grievance affecting or connected with their employment, and that this amounted to a strike within the common understanding of the term. It is not easy to know what is necessary to constitute a " strike." The word " does not represent any legal definition or description" (per Lord James of Hereford, Denaby and Cadeby Main Collieries Ltd. vy. Yorkshire Miners' Associa- tion (1)); and perhaps it has no certain connotation which is settled or accepted. When the accustomed course of the supply of commodities or services is interrupted or disturbed because labour is withdrawn or withheld, those who are affected by the consequence and are not much concerned with the cause naturally tend to call it a strike without further inquiry or discrimination. But it is noticeable that, in most of the attempts to state what amounts to a strike, prominence is given to the cessation or relinquishment of work, or at least the failure to resume work after a normal interruption or suspension. See the definition in New Oxford Dictionary, s.v. "strike," sub. s 9 and verb s 24, the passage in the judgment of Hannen J. in Farrer v. Close (2) and in that of Kelly C.B. in King v. Parker (3). It is true that in the Commonwealth Conciliation and - Arbitration Act 1904-1930 the word is defined to include " the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable " : but it is to be observed that in Aus- tralian Commonwealth Shipping Board v.Seamen's Union of Australasia (4), where seamen refused in combination to accept employment on

(1) (1906) A.C. 384, at p. 405. (3) (1876) 34 LT. 887. (2) (1869) LR. 4 Q/B., at p. 612. (4) (1925) 35 C.L.R. 462, at p. 483,

p until particular members of a crew were dismissed, Higgins J. it if it were not for this definition " the refusal in combination pt work would not be a strike at all. The ordinary meaning ke is confined to ceasing work - ' downing tools.'"' There is thing opposed to this view in the judgment of Sankey J. (as he | was) in Williams Bros. (Hull) Ltd. v. Naamlooze Vennootschap H. Berghuys Kolenhandel (1), which was relied upon by Piper J. Supreme Court rather upon the sufficiency of the purpose of abstention from work. The word "strike" may have more ive meanings in commercial instruments, and its application differ in the case of trades or callings in which the workmen ily for hire as luggage porters do, or work upon a succession of jobs s wharf-labourers do. But in a penal provision it ought not to e an interpretation wide enough to include the concerted of men to enter into a new employment of long duration, although that employment is offered according to a regular y practice by which labour is habitually obtained. For reasons I do not think illegal means were actually adopted e threatened at the place of engagement. The resolutions d by meetings of the Branch were wide enough to include to sail with "unfinancial members" in circumstances olving a strike within the statutory definition or breaches of 100 and see. 103 of the Navigation Act 1912-1926. But, at most, his amounts to a combination for a purpose to be effected by a means or, if necessary, by unlawful means. The occasion lid not arise for resorting to or threatening to resort to unlawful and no circumstance oceurred in which such means could e been employed against the respondents. No attempt was to rely upon the agreement of 1925 between the Union and shipowners as making the means employed unlawful. The lant himself cannot be considered as procuring a breach of i ement by the Union (see Said v. Butt (2) and G. Scammell Lid. v. Hurley (3) ), and there is no evidence that the ant himself was bound by the obligation of the agreement. on behalf of the respondents the cause of action in conspiracy 0 supported upon the ground that the appellant was party

15. 86 Lid, KB. 334. (3) (1929) 1 KB. 419, at pp. 443
16. 3 K.B. 497, at p. 506, and 449,

to a combination which had for its object the wilful infliction of i damage upon the respondents. This assumes that the end is not in

s itself unlawful, that the means are not unlawful, and that no threat

of an illegality is made in furtherance of the combination. It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy. At any rate so I understand the doctrine which has slowly won its way to final acceptance by the House of Lords (Sorrell v. Smith (1) ). To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling - the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests. There is some evidence in the present case that the appellant was embittered towards one at least of the respondents: but a consideration of the whole evidence establishes, in my opinion, that what actuated the meetings of the Branch and the appellant in pursuing the policy which the Branch adopted and he probably advocated, was the desire and the purpose of compelling the promoters of the rival Union to desist from the project by depriving them of employment and making manifest to their followers the unwisdom of adhering to them. Because in the struggle the opponents of those in charge of the old Union refused to contribute to its funds, their " unfinancial" status became at once the means of identifying and describing them, and the pretext for disciplining them. When the Local Court finds "that the defendant's real, as distinguished from his ostensible, objection to the plaintifis was not that they were unfinancial but that they had been active in supporting a rival union," I do not think it states the facts with precision, but the finding does not, in my view, advance the plaintifis' case. I think the cause of action in conspiracy was not established.

The appeal should be allowed. The order of the Local Court . should be set aside and judgment be entered for the defendants. 7

secretary of the Federated Seamen's Union of Australasia.

. At the time it had 6,000 members in the Commonwealth, g about 500 in the State of South Australia.

ly before McKernan's appointment, two persons named dand Rigby were prominent officials in the South Australian ch of the Union. For some reason or other they were recalled mm office by the members. Not content with the decision, they the formation of another organization. The new body ly launched and called the Australian Seamen's Union. The met with some little success, and enrolled about 100 u in the State of South Australia. The old Union had once n registered as an organization under the Commonwealth Concilia- d Arbitration Act, but it was deregistered in 1 Tn 1929

During the period under review, both Unions covered the class of employee. Each claimed the exclusive right of enting the seamen of Australia.

McKernan arrived in Adelaide to assume the duties of y, Rigby and Woodsford were smarting at their replacement.

ities faced McKernan in carrying out the organizing work of Union.

n one aspect, this litigation itself is but another incident of gle between the old Union and the new. The plaintifis present action, Fraser and Stapleton, were protagonists of

against McKernan. There is nothing wrong about that. evidences the undoubted fact that when Fraser and Stapleton their present action against McKernan in the Local Court Adelaide, they were doing so, not merely to protect their rights, but to strike a blow on behalf of the new body.

J. In November 1928 the appellant, Peter McKernan, was - ©. or A.

@ union of employees which had been in existence since McKensax

Fraser and Stapleton were awarded £100 damages each, agai McKernan. They sued in respect of certain supposedly tortic acts committed against each of them individually. Their case put most favourably by stating that they relied upon three alternati causes of action, namely : -

1. That McKernan conspired with two greasers named Ma and Hannah and others to injure the plaintiffs by preventi their being employed on the m.s. Manunda ;

2. That McKernan procured the owners of such vessel to break actual contracts of service which had been entered into. between each plaintiff and the owners ; and

3. That McKernan was a party to a combination to prev the plaintiffs from being employed on the vessel by n which were unlawful as being prohibited by the Indush Code 1920 of South Australia.

I omit from this statement. much of the verbiage of the fi particulars of claim. The interests of justice usually require that when allegations of conspiracy are levelled, particulars should be given. The persons charged should know what is the case alle, against them and what overt acts are intended to be proved. The requirement of particulars in cases of criminal conspiracy recently been affirmed in this Court (R. v. Weaver (1) ). The reas for applying the practice to cases of civil conspiracy are almost as cogent because, apart from special dispensation given by statute it now seems clear that the tort of civil conspiracy cannot be established unless the plaintiff proves (inter alia) the existence of a conspiracy punishable in criminal jurisdiction.

Administration of the law of conspiracy in its relation to trade competition and industrial disputes has been impeded by frequent use of words of praise and blame. Both Atkin L.J. (as he then was) and Serutton L.J. have forcibly pointed out the dangers of this tendency (Ware and De Freville Ltd. v. Motor Trade Association (2) ). In the present case, the temptation to characteri the conduct of McKernan and the old Union proved irresistible the Local Court. Its judgment is strewn with question-be; phraseology. According to the Magistrate, the agreement betwee

ipowners and the old Union "shows up the defendant and body connected with him in a most baneful light " ; the defendant associated with him "have not played the game," the "for their egregious sin in not paying up their Union s amounting to £1 each have been black-listed in all is of the Commonwealth." These are a few of the instances re light is sacrificed to heat.

tis vital to the application of the principles of law to this case, e facts should be seen in their proper perspective. The e of the responsible officer of the steamship company, Mr. . Hayter, and others, shows that, throughout the trouble, rnan's behaviour was marked with great restraint. I pass the moment the attempt made to discredit him, by calling suggesting that he had a personal spite against Fraser, the plaintifls. McKernan's evidence gave a very different n to the incidents, and the Magistrate in no way based nent upon this minor part of the case. Nor did the fis call the witnesses who could have corroborated Fraser's n of the matter.

nately, the main facts of the case are not in substantial I have already explained how the conflict between the ) rival Unions commenced in November and December 1928. th the plaintiffs joined the new Union, Fraser, although not g from the old Union, paid no dues to it after September He was quite frank about his attitude. He stated in e that his reason for not paying was not because he was

ize' the old Union, " Stapleton and I,' he said " were of both Unions but supported the new." Fraser was

in trying to induce members of the old Union to join the F bo dy. Stapleton was not actively concerned with the organizing 'of the new Union. That McKernan was hostile to Stapleton nally, was not suggested. Stapleton had never seen him before 23rd, 1929, when the important incidents of the " pick-up " Manunda took place. Fraser at one part of his evidence

"T would not say I was on untriendly terms with McKernan » May."

Throughout the years 1928 and 1929 the old Union had a working arrangement with the shipping companies under which an official of the Union would attend, when it was proposed to " pick up " or select seamen for the purpose of being signed on for service on board vessels leaving Adelaide. After his appointment as secretary, "pick-ups." He always did so at the request of the representative of the shipowners.

The owners also recognized the old Union, by acting upon the terms of a written agreement between them. This agreement laid down the general terms and conditions governing the employment of seamen in the industry. At no time was there any open recognition by the owners of the new Union, which was no party to the working agreement and was never represented at any " pick-up."

The majority of Adelaide seamen remained loyal to the old Union. They resented the attempt of a defeated minority to destroy or impair the status of their industrial organization. The danger to the old Union was not lessened but increased because 4 the members of the rival Union did not formally terminate their - membership. The evidence shows that McKernan himself did not - have a vote at meetings of the Union. But he was entitled to speak at the meetings. He advised against any attempt on the part of

members to adopt measures of retaliation against Rigby, Woodsford, Fraser and the others associated with them. Rigby and Woodsford do not appear to have been actively employed as seamen during

the period in question. No doubt the organization of the new Union took up all their available time.

But McKernan's advice was not acceptable to his Union. On January 8th, 1929, a special meeting adopted a resolution "that in the event of these men, meaning Fraser and other unfinancial members, being picked up in the yard, we, the members of the Seamen's Union will refuse to sail with them and we instruct our secretary to inform the shipowners not to pick any of these men

up as it would cause unnecessary trouble. We also instruct the secretary to inform all branches of these men's names." The men referred to in the resolution were Fraser and others who had refused to pay their Union dues, because they supported the new Union.

"that all members who refused to pay their contributions either have to pay up or leave their ship and we request members of the crew not to sail with these men." On March 1, 1929, a resolution was passed as follows: "that these men ed to leave the meeting and all branches be informed of the of the men who refused to pay their contributions." No ensued as a result of these resolutions before the Manunda up on May 23rd, 1929.

May 22nd the Manunda required eight greasers, twenty-two 3.'s and a boatswain. The articles were duly opened at the ice of the shipping-master, Port Adelaide. At all material times May 23rd, the articles were ready for signature at the office persons selected to complete the crew. It is part of the case against McKernan, that on May 22nd the members of the Union were determined not to sail on the Manunda if the owners d to engage any members who were refusing to pay their nion dues because of their association with the rival body. To iis class Fraser and Stapleton belonged.

'The existence of this determination on the part of members of » old Union cannot be disputed. On May 22nd McKernan saw Harris, acting manager of the steamship company, and conveyed him that such was the decision of the Adelaide members who ed loyal to the old Union. "TI will not deny," says Harris, McKernan said that the men had instructed him that they d not sail with unfinancial members. I was given to understand there might be trouble with the men. At that time there were vo factions among the Seamen's Union. The idea was that if we up men of the opposing section the others would create e. . . . Wehada friendly chat about conditions generally, d consequently I gathered the impression that defendant wished n me that if I picked up men of one section there would be buble with the other."

On May 23rd, in the morning, Mr. Hayter, who was the representa- { the shipowners at the* pick-up, telephoned to McKernan recognized secretary of the Union," and the latter came Shipping office. It was then agreed that Mr. Hayter would

"pick up" eight greasers for the Manunda. At this time, no one was present in the yard. McKernan made a sign to those awaiting -

x selection, and 30 or 40 came into the yard. Middleton, Hayter's

assistant, selected 3 or 4 men. He next "selected" Fraser, but McKernan at once objected, saying: " This man cannot sign on, he is unfinancial."" Middleton said: "That has nothing to do with me." Fraser then left the yard and returned to say that the shipping- master said '' he could sign on." Middleton went on selecting. In his evidence Hayter says : - "He came to Stapleton, the other plaintiff. McKernan said : - ' That man cannot sign on, he is unfinancial. If you take these men, the other crowd will not sign on and the sailors will not go into the yard.' Stapleton then went away, and also announced on his return that 'the shipping-master will sign me on,"

Middleton picked up the eighth greaser, and McKernan then said to Hayter: " You will have to pick up two more men in place of - Fraser and Stapleton."" Hayter said: "I cannot do that until I receive instructions." Hayter then telephoned to Mr. Harris and told him what had happened, saying that "the others will not sign on unless we pick up two other men." It was then decided between Harris and Hayter that the selected men would be asked if they would sign on with Fraser and Stapleton, and, if they were not willing, two others would be selected.

Hayter, Middleton and McKernan then re-entered the pick-up yard, and Middleton asked the six greasers selected: '' Will you men sign on with these two men Fraser and Stapleton?" One of the greasers asked what conversation had taken place in the office. Middleton refused to tell him. Another greaser at once said " No" in answer to Middleton. Then McKernan repeated Middleton's question, and all the men said that they would not sign on with

Fraser and Stapleton. Two other greasers were then picked up, and a full crew of sailors was also selected. All selected went into the shipping office, where the articles were read pursuant to the requirements of the Navigation Act, and the crew all signed on.

It appears from Hayter's evidence that he was told by McKernan on the previous day, that if the unfinancial members associated

with the new Union were picked up with a view to being signed on the Manunda's crew, the Union members would not sail with them.

s that, when McKernan repeated Middleton's question to six men about signing on, their refusal was merely in accordance h what the shipowners had already been informed. following facts are established by the evidence : -

(1) 'The immediate object of the resolutions of the Union was to ent all unfinancial members associated with the new Union, obtaining employment on ships ; ) The representatives of the shipowners were aware of the uct that the greasers and sailors belonging to the old Union were termined not to enter into binding contracts of service or " sign " the articles, if the class they objected to, or any of them, were med on' with them ; (3) Fraser and other members of the new organization had, before id on May 23rd, refused to recognize the status of the old Union ; described it as "a somewhat lawless body as it is not regis- ; All persons present at the pick-up, including Fraser and , and the representatives of the shipping company, regarded signing on" of the persons selected for engagement as an tial condition to the coming into existence of a binding contract femployment. The visit of Fraser and Stapleton to the shipping ee in order to ascertain whether they might " sign on," shows t they treated such act as the commencing point of any engage- it to serve as greasers. The phrase "sign on'? was used y to indicate something deemed necessary to the making ny concluded agreement either to employ or be employed. he facts mentioned under (4) are sufficient to dispose of any se of action based upon the finding that McKernan procured a h by the shipping company of two binding contracts of ment, namely, between the company and each of the plaintiffs. s have been referred to in order to show that, under certain umstances, the verbal engagement of a seaman without the ution of the written agreement mentioned in sec. 46 of the Act, may constitute a binding contract of service. Mr. . in his able argument, did not dispute this fact. He said the present case, everybody assumed that the signing of the

in accordance with the Navigation Act was a necessary 'XLVI. 25

condition of any contract to employ or be employed on the Manunda. I think that his argument on this branch of the case was unanswer- able. The " picking-up "' was treated by all concerned as provisional. In all the circumstances, the " selection " of the eight greasers was not afinalengagement but only an approval of the suitability of applicants for employment. It is not possible to accept the view that if, when the articles came to be read out at the shipping office, a sailor

thought that unusual or unknown or undesirable conditions were contained in the agreement, he would still have been bound to sign. Nor would the shipping company have become liable as upon a concluded contract, until the articles were signed. The presence of McKernan at the " picking-up " place was known to both Fraser and Stapleton, and I am strongly disposed to think that they, as

well as the shipping company, regarded such presence as implying a right to make representations to the owners upon the subject of

an applicant's suitability from a Union point of view, before a binding contract was entered into. It is unnecessary to pursue this further, because the whole of the surrounding circumstances make it clear that no binding contract was come to with Fraser or with Stapleton.

The Magistrate also came to the conclusion that there was a combination to which McKernan was a party, the object of which was to prevent each of the plaintiffs from being employed, and that the real ground of objection to the plaintiffs was, not that they were unfinancial, but that " they were active in trying to get a rival union registered in the Federal Arbitration Court."" He added that " All of this talk about the plaintifis being unfinancial is absolutely insincere. It is all moonshine."

The finding of fact that the old Union and its members objected to Fraser and Stapleton because of their activity in trying to get a rival union registered, is substantially correct. But the fact is better and more accurately expressed by saying that members of the old Union were determined to act against those of its members who would not pay their dues, because they desired to promote the interests of the rival body. The mere failure to pay subscriptions was not the main complaint. What was objected to, was the deliberate abstention from payment as a means of destroying or weakening the old body and strengthening the new. Curiously

ts McKernan and those found to be combined with him.

s there any obligation on the part of the plaintiffs to continue subseriptions to a union, especially as their chief reason was it had become deregistered?"' In the implications of such a ion, the Magistrate has revealed his opinion that Rigby, Woods- 1, Fraser and all those promoting the new Union, were justified om their own point of view in combining to destroy the old Union ; it that the old Union and its members had no justification for nding all industrial co-operation with their rivals.

Ishould have thought it obvious that there was as much moral for McKernan and his associates to act, by defence and counter- asthere was for their opponents to further the interests of

vations in Sorrell v. Smith (1) prominently before him, the ite might well have remembered the words of the old French n which at once embodies and dismisses the complaint of the or who seeks a fight and finds that he has to retire in

"Cet animal est tres méchant ; Quand on Vattaque, il se défend."

the claim of each plaintiff that there was damage inflicted m by means of "conspiracy to injure" need not be examined ifthe combined action taken on May 23rd at the " pick-up " Wed an agreement between McKernan and the six greasers to luce the Company not to employ the plaintiffs, and such agreement, 'executed by means of acts rendered unlawful by the provisions Industrial Code 1920. It was upon this footing that the of the Supreme Court affirmed the judgment in favour of e plaintifis, though little attention was devoted to the point in Local Court. aving regard to the particulars of claim and the way the case 'conducted before the Magistrate, the plaintiffs should not be ed to rely upon any supposed element of unlawful means in ons of the combination, except that detected by the Supreme

e Magistrate added the rhetorical question : "* Where on earth McK

ough, it is this part of the Magistrate's judgment which most H. C. or A.

was done on May 23rd was either a strike or in the nature of a strike. Sec. 100 of the Code makes it an offence for any person to do anything in the nature of a "strike" or take part in any "strike." There is an elaborate definition of the word "strike" in sec. 5 of the Code, but it is not, and cannot be suggested, that what McKernan and the greasers did, before any contracts of

service were entered into, amounted to a " strike," unless by reason of the general words "(without limiting the meaning of the term)," which commence the statutory definition. Does the ordinary mean- ing of the word " strike" include such action as was taken at the "pick-up " ?

Sec. 5 of the New South Wales Industrial Arbitration Act 1912 defined a "strike" by reference to certain specified acts, but the definition also commenced with the phrase "without limiting its ordinary meaning." In Attorney-General v. Whiteman (1) the facts disclosed that a body of men regularly employed in the industry of wharf-labouring, were assembled at the place where they were "habitually called upon by their habitual employer in that industry to work " (2). They then, in response to a resolution of their union, in concert and under a common understanding, refused to work for '"'such usual and habitual employer," until "such time as the terms of the agreement were abided by." Judge Scholes held that there was a "strike" within the ordinary meaning of the term, although at the moment under consideration, no contractual relationship existed between the wharf-labourers and their " habitual employer." In 1914, Judge Edmunds dealt in the same way with the action of cer- tain ironworkers at Morts Dock, Sydney. They were casual labourers and engaged by the day only, although they were usually kept at work for long periods, and in that sense had "constant work." Acting in concert, they refused to work when it was being offered in the usual way (Minister v. Wilson (3) ). The learned Industrial Court Judge held that there had been a " strike " within the ordinary _ meaning of the word. ;

On the other hand, in Farrer v. Close (4), Hannen J. said: "A strike is properly defined as 'a simultaneous cessation of work on

(1) (1912) 11 AR, (N.S.W.) 137. (3) (1914) 13 ALR. (N.S.W.) 117. (2) (1912) 11 ALR, (N.S.W.), at p. 144. (4) (1869) LR. 4 Q.B., at p. 612.

part of the workmen.''? The Royal Commission on Trade putes presided over by Lord Dunedin, when reporting in the 1906, seems to have regarded a strike as involving combined "to desist from working" (par. 64). The Encyclopedia itannica (1911), 11th ed., says that "A strike in the labour is a stoppage of work by common agreement on the part of a body of workpeople for the purpose of obtaining or resisting a change in the conditions of employment." Webster's Dictionary (1910) fines it as "'a stopping of work by workmen in order to obtain or sist a change in conditions of employment.' The last edition of the Britannica (1929), 14th ed., says : "' A' strike ' may be defined as a oluntary stoppage of work on the part of a body of workpeople, by common agreement or by order of their society or union, for the of obtaining or resisting a change in the conditions of loyment."" And Higgins J., probably the greatest authority on lian industrial law, said in Australian Commonwealth Shipping dv. Federated Seamen's Union (1) that " The ordinary meaning e is confined to ceasing work - ' downing tools '." ial disputes, the regulation of industrial conditions, and the ned action of workmen, from a standpoint very different that of England, where the mere act of " striking" has not i penalized by Act of Parliament. Here, the act of striking has ently been made punishable. This has not been because n legislative bodies have been hostile to the claims of dlabour. The reason is that they have established Courts, ribunals and boards, for the very purpose of making recourse to instrument of strike and lock-out unnecessary. Collective

fied tribunal. It is as a logical corollary, that recourse to it or strike has been made unlawful.

e has also been a concurrent tendency on the part of Australian nts to widen the scope of matters dealt with by industrial

tribunals. In the year 1876 Kelly C.B. in King v. Parker (1) said

of the word "strike" : "There is no authority which gives a legal definition of the word . . . but

I conceive the word means a refusal by the whole body of workmen to worl for their employers, in consequence of either a refusal by the employers of the workmen's demand for an increase, or of a refusal by the workmen to

accept a diminution of wages when proposed by their employers."

This limitation of the concept of "strike" to wage disputes, appears strange in Australia, where the area of industrial dispute and wages board regulation, has covered almost every possible demand which is in an employer's power to grant to employees. Industrial tribunals have been empowered to control and regulate the conditions under which persons usually engaged in an industry shall apply for employment and employers shall employ them, to determine whether members of a specified trade or industrial union shall be employed in preference to all others, and the extent of such preference, e.g., the order in which employers in the industry shall dismiss his employees. Some tribunals have been empowered to compel an' employer who dismisses or reduces an employee in grade or status, to re-employ or reinstate him, although this is in the nature of an order for specific performance of a contract for service. Legislatures have also made the decisions of industrial tribunals as to whether they are acting within the limits of their statutory charter, not merely unappealable, but unchallengeable in any Court of Judicature. To industrial tribunals, in short, has been committed the final deter- mination of all matters which can fairly be regarded as affecting the mutual relation of employers and the body of employees who from time to time are engaged in an industry.

As a consequence of this wide field of jurisdiction, there has been a tendency to regard everything which impedes the smooth carrying on of work in the industry as being, if done by employees, a strike or something in the nature of a strike, if done by employers, a lock-out or something in the nature of a lock-out. As a matter of course, there has been included in the denotation of a "strike," every stoppage of work. But difficulties have been felt in cases where

there has been a combined refusal by employees to accept employ- ment on the terms offered by an employer. The two New South

inted to a " strike'? both emphasize that the persons concerned

usually employed by him. The question becomes still more t when the persons concerned have not previously been oyed by the particular employer who is offering work to them. a pergblem has also arisen in relation to the Commonwealth ion and Arbitration Act. Until the year 1930, the Act it an offence for persons to do anything in the nature of a mike. But the general principle of alternative redress was observed, what was prohibited was striking, either in relation to an trial dispute which the Federal arbitrator had jurisdiction to or settle, or against the award in which some settlement as embodied. No strike was punished or prohibited unless the es concerned in it could have, or at least might have had, their s settled by the Court. 1920, the definition of " strike'? in the Federal Act was ed to the cessation of work by employees acting in combination. rder to enforce compliance with demands made. In the year this Court decided the case of Waterside Workers' Federation tralia v. Commonwealth Steamship Owners' Association (1), [held that no breach of a Federal award had been committed by in an industry who, acting in common, refused to accept oyment at the minimum rate of wages prescribed by the award e Federal Court of Conciliation and Arbitration. No duty to employment at such rates was sought to be imposed by the It was not suggested that any breach of the statutory tion against striking had been committed. Higgins J. had y announced that "a refusal to accept work on the lines of d is not a breach of the award, or a strike within the Act, pas a refusal to give work on the lines of an award is not a breach he award or a lockout." (Waterside Workers' Federation of ralia v. Commonwealth Steamship Owners' Association (2) ). Federal Parliament finally passed the Act No. 31 of 1920, luded in the definition of strike '* the total or partial refusal 0 acting in combination, to accept work, if the refusal

16. 21 CLLR. 642, (2) (1916) 10 C.A.R. 255, at p. 260,

cases I have mentioned, holding that the action taken H. ©. or A.

, although no longer under contract to the employer, had McKensay

is unreasonable." This amendment became law on October 11th, 1920, shortly before the passing of the South Australian Industrial Code (December 9th, 1920). Sec. 103 of such Code provides that a '. person is to be deemed to commit an act in the nature of a lock-out - or strike who, being bound as to the terms of employment by an award or order of the Court or by an industrial agreement, duly published under the Act, "without reasonable cause or excuse, refuses or neglects to offer or accept employment "' upon the terms of such award, order or agreement. It is possible, but not likely, that a combination of persons usually employed in an industry, to refuse to accept employment, is intended to be punished by sec. 100 of the Code, whether their act has reasonable cause or excuse or not and whether or not they are bound by awards and agreements made under the Act.

This part of the present case is not free from difficulty. No doubt the " strike " hit at by the Act, looks to the interruption of an indus- trial rather than a contractual relationship, and a combined cessation of work by employees in an industry, each of whom gives formal notice terminating his contract of service, but who all desire to induce their employers to alter the conditions of employment in the industry,

is no less an offence because no breach of contract is committed.

Indeed, such a case is covered by the express terms of the definition section itself.

But it is one thing to perceive that the end aimed at is the prevention of all dislocation of work in industry. It is another thing to infer that the mere existence of an industrial relationship between persons ordinarily engaged in an industry, forbids the employees from acting jointly for the purpose of negotiating the terms on which they shall accept offers of employment made by a particular employer, in whose service none of them are, or have

Combined refusal by employees of offers of employment may be associated so closely with actual cessation of work by members of the same industrial group, that the act of refusing employment can be truly described as conduct in the nature of a "strike." There may be a demand common to those actually at work and those who are not. In such cases the facts will require close scrutiny.

employer to the demand made, will need investigation.

of the concerted refusal. It is rather a question of the nature of threatened or probable obstruction to the work of the industry. y be that the conditions of actual employment are not in any in controversy. If workers in one union will not accept mployment under any conditions at places where non-unionists or embers of a rival group are employed, the burning question may not between employers and workers, but between opposing groups { workers. No doubt, such cases ordinarily include a demand ade upon employers that they shall not engage members of the group; but the unionists are saying in effect: " We do not

ject to the terms and conditions of the employment offered ; but we offer for employment upon the condition that the members of ir union alone shall be employed; we, as 4 group, offer to man ship on the existing terms, but the offer is a collective offer d you must accept or reject it as such." I am of opinion that it possible to say that every concerted refusal of workers to accept rs of employment, is a " strike'' punishable under the Jndustrial

n the present case, there was no existing regulation by the South lian Arbitration Tribunal of the mutual relations of employer employee in the industry, nor was the working agreement the special sanction of the Industrial Code. This is important, there is something to be said for the view that see. 103 is he sole measure of penal liability for refusals of employees to accept yyment in an industry. Moreover, the questions at the pick-up not relate to any attempt to vary the terms or conditions of employment, there was never any real probability that the id made would not be acceded to, no actual dispute ever came 0 existence between employers and employees and the action

n by the employees was not accompanied by any cessation of The actual or probable success of combined action or the of it, does not, of course, negative the existence of a strike. the less it may, as here, show that the demand acceded to, is e importance to an employer, that actual interference with

'number of persons concerned, and the probable attitude of the H. ©. or A.

nay be objected that this means inquiry into the reasonableness McKenrxax t.

• his operations is extremely unlikely. Further, the working agreement

in force on May 23rd, was an agreement between the Federated Seamen's Union and the shipowners, and the undertaking to man - vessels was an undertaking by the Union. The trouble at the pick-up - may, not unreasonably, be regarded as a minor difference in th method of selecting crews in the course of carrying on the agreement: between owners and the Union.

On the whole, I am of opinion that what took place at the "pick-up," did not amount to an act on the part of McKernan and the greasers which was unlawful under the Industrial Code. What occurred might well be termed a " hold-up," because the work of selection for engagement was interrupted for some little time. It has been described with much colour by the Local Magistrate,

• "Job control" and ; "coercion." The use of all these substantives really tends to -

confess the fact that, in the circumstances, there was not a " strike."

It therefore becomes necessary to examine the third suggested ground of liability - that McKernan and the six greasers, although not employing unlawful means, combined for the purpose of inflicting damage upon each of the plaintifis by depriving him of the opportunity of employment, and the combination amounted to a "conspiracy to injure."

The law of conspiracy in relation to that of civil wrongs has

assumed some of its greatest complexities in its application to combinations which, having as part of their object the intentional infliction of temporal harm upon another, are duly carried into - effect and inflict such harm, but which are unaccompanied by breach of contract, tortious or other unlawful acts. To what extent are the parties to the combination liable to be sued in tort by the person who has suffered harm? Is the damage sustained the " gist " of the action and the combination merely an aggravation of the injury done? Does the plaintiff prove a prima facie case by showing that the defendants intentionally caused him injury? Or must - he also show, as part of his case, that the " object," " purpose," - "motive " or "intention "' of the defendants was to injure him out - of personal malice or some other bad motive? How far is the : desire to protect "legitimate" trade, professional or industrial

RJ OF AUSTRALIA. sts an answer to the claim in tort? Must the defendants the existence of such desire or fail? Or will the plaintiff fail eads evidence which points as much to the existence of such a it does to that of malicious injury 7? And what is " malice " h connection 4 questions which arose following upon the three decisions of House of Lords in Mogul Steamship Co. v. McGregor, Gow (1), Allen v. Flood (2) and Quinn v. Leathem (3) caused acute differences of opinion amongst eminent Judges and of English law. arly in the present century, Lord presided over the Royal Commission on Trade Disputes. stimulated keen interest, and older controversies were The passing into law of the Trade Disputes Act in 1906 practical effect of preventing the recurrence of many of the important questions. It had been, in the main, the collective : of members of labour unions which had enabled injured plain- sto succeed in actions of 'civil conspiracy" based upon the in Temperton v. Russell (4) and Quinn vy. Leathem. As

jin relation to trade disputes that the combined action of the

done in furtherance of such disputes presented an almost rable obstacle to would-be plaintiffs. the decision in Pratt v. British Medical Association (5)

and parties began to reissue words from the old mint. gment of Atkin L..J. (as he then was) in Ware & De Freville Lid. Trade Association (6), evidencing general agreement with the es of the 1906 report of Lord Dunedin and his colleagues, considerable blow at the generalizations of certain distin- commentators. Certain other trade union cases were d, and, finally, in Sorrell v. Smith (7) the questions came once efore the House of Lords.

ut the judgments of their Lordships did not set all controversy . Forinstance, Sir Frederick Pollock commented that " the

) 1 QB. 7 (2) (1898) A.C. 1. (5) (1919) 1 K.B. (3) (1901) A.C, 495, (6) (1921) 3 K.B.

H.C. or A. vexed question whether there is any magic in * plurality' will never

be settled until some powerful corporation (being, of course, only

g another," and was " directed personally against the party jured." Yet it was not an unlawful conspiracy. But the and importance of the summing-up lies in the contrast between nation entered into by persons " for the purpose of obtaining ul benefit to themselves," and one entered into in the absence

fa Boots, Cash Chemists (Lancashire) Ltd. v. Grundy (2)

J. (as he then was) said : - "Tn other words, given the confederacy, the motive and purpose make all "the difference. If a number of persons, because of political or religious hatred, _ or from a spirit of revenge for previous real or fancied injury, combine to 'oppress a man and deprive him of his means of livelihood for the mere purpose ~ of so-called punishment, I think the sufferer has his remedy. If the combina- _ tion be to further their own prosperity, if it be constructive, or destructive _ only a8 a means to being constructive, the case is otherwise " (3). was a dissenting judgment, but the distinction made by Lord eanticipates many of the later cases. Destructive combina- entered into for the ''mere" purpose of victimization or ishment are tortious if followed by damage. On the other hand, e combination is lawful if its " motive and purpose " be to obtain "constructive " good. . Dicey's view was that the three decisions of the House of (Mogul Co.'s Case (1), Allen v. Flood (4) and Quinn v. eathem (5) ) showed that . "aot done by X and Y, who are acting in concert, solely for the purpose of "protecting and extending their trade and increasing their profits, and which do not involve the employment of any means in themselves unlawful, are not actionable, even though these acts cause damage to A." The defendants din Quinn v. Leathem " not because their motive for exercising their own. 'Tights was bad or malicious, but because they were pursuing an object which in itself was unlawful, namely damage to A . . . with, be it added, the farther and equally unlawful object of punishing A's servants for not having

• joined a trade union" (18 1.Q.R., pp. 1-2). (3) (1900) 16 T.L.R., at p. 458.

16 TLR. 457. (4) (1898) A.C. 1. (5) (1901) A.C. 495.

H.C.or A. Dicey's distinction between " motive" and " object" must be es reviewed in the light of the later decisions; and his suggestion that McKerrwaw_ persons acting in combination escape, only if their " sole " purpose Fraser, ininflicting injury upon a plaintiff is that of protecting and extending uvany, their trade, was doubted by Lord Summer in Sorrell v. Smith (1). Defendants may in combination deliberately inflict damage upon A

(as the defendants in the Mogul Case (2) did), providing that they

also are pursuing their own trade advantage. If " punishing"

other employees in the industry for not having joined a trade union, only means, excluding them from employment with the end of inducing them to join the union or of procuring a monopoly of work in the industry for union members, it is difficult to say that such motive of " punishing" makes the combined action unlawful.

17. In the case of Sorrell v. Smith (3) Lord Buckmaster was of opinion that the plaintiff must prove, as part of his case, that the purpose of the combination " deliberately interfering with a man's trade "' was " spiteful and malicious "' (4).

This view is that the plaintiff must prove not only that the combina- tion was entered into for the deliberate purpose of interfering with his trade, but also that it was of a " spiteful" character.

18. In Vegelahn v. Guntner (5) Holmes J. said that although "the immediate object' of the combination was "to injure their antagonist," there might be nothing unlawful, if the infliction of such injury was "for the sole object " of prevailing in the struggle for better industrial conditions.

The opinion means, I think, that even if " the immediate object " is injury, what has to be investigated is the ultimate object. If so, persons taking part in a combination of organized labour may succeed in their defence, although they agree to do acts which are harmful and are intended to be so. It has taken many years to give effect to the implications in this opinion.

19. In White v. Riley (6) Warrington L.J. (as he then was) said: "The evidence is quite clear that the men had no personal grudge whatever against the plaintiff, and that all that they were anxious for was that he should join the Curriers' Union."

(1) (19: (4) (1 (2) (18! (5) (I (3) (19 (6) (1921) 1 Ch,, at p.

statement shows that there must occasionally be inquiry 4- ©. or A-

o the cause of the " objection" to a plaintiff entertained by a re

bination. Does the objection really spring from economic, or McKenxax rom personal hostility ? 'ical 20, In the same case Younger L.J. (as he then was) said there was pyar, an absence of "'any malicious or vindictive feeling towards the plaintiff as a man" (1), and the action taken was " in the interests . of craft unionism in general and the Curriers' Union in ticular" (1). n these words Lord Blanesburgh implies that there may be strong stility shown against an individual by the combination, without becoming unlawful on such account. Such dislike may often e its source in actions taken by the plaintiff or his group against interests or supposed interests of the trade group to which the de nts belong. No one would call such motive, a feeling against e plaintiff "as a man." 21. In Nann v. Raimist (2) Cardozo C.J. said of a struggle between val labour unions competing for supremacy : - "A genuine controversy exists between two competing groups as to the 'effectiveness and sincerity of the methods of one of them. . . The plaintiff does not prevail by showing that the defendant's criticism is wrong. : What is wrong must be so clearly wrong that only 'disinterested

malevolence' (American Bank & Trust Co. v. Federal Reserve Bank (3) ) or something closely akin thereto, can have supplied the motive power." _ The phrase " disinterested malevolence"? is valuable as pointing malice which is irrelevant to any trade, professional or union interest possessed by the defendants. 22. In Leathem v. Craig (4) Andrews J. said : " Acts done for the sole purpose of lawfully benefiting those who do them,

• and which have a harmful effect on others, are obviously very different from ets done with the purpose of inflicting harm on others, in order to compel them to abandon their freedom of action in lawfully carrying on their own trade according to their own discretion."

23. In the same case (5) Holmes L.J. said : - "In the present case FitzGibbon L.J. put the very point to the jury. He told 'them the questions to be considered included in particular the intent of the _ defendants to injure the plaintiff in his trade as distinguished from the intent of legitimately advancing their own interests."

(1) (1921) 1 Ch,, at p. 31, (3) (1921) 256 U.S. 350, at p. 358.

• (2) (1981) 255 N.Y. B07, at p. 319. (4) (1899) 2 LR., at p. 680. % (5) (1899) 2 LR., at p. 777.

that is to say, they acted by conspiracy, not for any purpose of advancing their own interests as workmen, but for the sole purpose of injuring the plaintiff in his trade."

The last three quotations indicate broadly the special finding of - fact which alone enables the Mogul Case (2) and Quinn v. Leathem - (3) to be fitted into the same principle of law. Lord Shand asserts the existence in Quinn v. Leathem of a combination intended to : cause harm, and causing it, for the "sole purpose' of hurting the plaintiff. If such finding is a condition precedent to liability in these cases, it approximates closely to the "disinterested malevolence" referred to by Cardozo O.J.

Whilst it is necessary for a plaintiff to show, not only that the acts injuring him are those of a combination entered into for such purpose but that the combination possesses the additional character or quality of being " malicious," no recognized formula has yet been

adopted by the Courts in order to ascertain such character or quality.

I think that some light is thrown upon the question of principle by attempting an analysis of the evidence that is usually led in a case of - "conspiracy toinjure." Itis seldom that any criminal conspiracy ean be proved by direct evidence of the making of the agreement ; usually, the inference as to the fact of agreement, must be drawn from the proved actions of thedefendants. In civil cases of conspiracy to injure, the existence of a combined purpose is sometimes shown by giving evidence of the actual terms of a decision come to by a professional or trade organization. It is almost impossible to suppose that an intention to cause injury for a merely malicious purpose would appear from the terms of such a resolution. The aspect of policy, as distinct from the personal aspect, is usually found predominant in the records of such bodies. The present case is no exception.

Before liability can attach to defendants for conspiracy to injure, there must be evidence to support a finding of fact as to the object - or motive animating the parties to a combination which intentionally - causes temporal harm to a plaintiff. Three possible types of case _ may arise : -

(1) (1901) A.C., at p. 515. (2) (1892) A.C. 25. (3) (1901) A.C. 495.

entry by persons into an agreement and its execution, for no reason at all beyond the mere infliction of injury. The whole thing would be stamped with wantonness, almost with absence of meaning or significance. Butif such a case arose, the defendants would, no doubt, be held liable, and the combination would be regarded as possessing the necessary malicious character.

II. Where the agreement to cause damage or loss is made, all the parties seeking to carry out some object or satisfy some motive, beyond the mere infliction of damage. This case assumes the existence of a similar object or motive in all the a parties to the agreement.

III. Where the agreement to cause damage or loss is made, each one of the parties seeking to carry out some object or _ satisfy some motive beyond the mere infliction of damage, but one or more acting solely from one object or motive, others acting solely from a different object or motive, and others still, acting from more than one object or motive.

pause here to refer to the suggestion of Lord Swmner in Sorrell y. Smith (1) that the terms " object" and " purpose" in relation to the " aggressive action of a combination," stand in need of strict definition. He added that "the tests, by which the definition is ) be applied, seem to me not to have been as yet sufficiently ned" (2).

n the present examples, I am assuming that the defendants have ombined to do certain acts which must necessarily cause temporal harm or injury to a plaintiff or a class of which the plaintiff is one. have also assumed that the harm to the plaintiff is "intended " all parties to the agreement. The infliction of such harm may » be called their "object" or " purpose." Each of these two ds indicates the conscious pursuit of some end or goal, or the tation to the actors of such end or goal as a desirable thing. 'May be more accurate to call the immediate end or goal the purpose " of the combination and the ultimate end or goal sought,

(1) (1925) A.c, 700, (2) (1925) A.C., at pp. 741-742,

y to picture such a case, because it supposes the deliberate McKensax

the "' object" of the person who enters the combination. If each party has the same ultimate " object," that is also the "object" of the combination. In this sense, the " object" desired by each

and all, is also the " motive," both of each individual and of the -

combination. It may be that the "intention" or immediate "purpose" of the persons combined is to inflict harm, but their "motive " or ultimate " object " is the furtherance of their trade interests. It may be, on the contrary, that the ' ultimate " object " beyond the immediate " purpose " or " intention" of the combination, is to do harm because the plaintiff is hated for some personal reason and his harm or ruin is desired as an end to be achieved by means of inflicting harm upon him.

I am quite aware that with this terminology, many psychologists would not rest satisfied. But the difficulty is, as the references I

have already given show, that the Courts have not separately defined _

a number of these expressions. In certain relations, the words employed tend to have the same meaning, but in other relations,

"Though it is easy," said Lord Dunedin, "on the strict view of the meaning of the words to draw a distinction between motive and intention yet the meaning of the one runs into the other, and in the set of cases I have quoted I think they are used as synonymous" (Sorrell v. Smith (1) ).

So long, however, as the meaning of the words used is kept clear, the substance of Lord Summer's suggestion will be followed. I therefore return to the illustrations already enumerated.

Further information is required before it is possible to pronounce of either Case II. or Case III. whether any or all of the parties are liable to a plaintiff who sustains injury through the carrying out of the agreement. If in II. the common object or motive be the satisfaction of a personal hatred or grudge by means of the ruin or impoverishment of the plaintiff, liability is clear. If it be the protection or advancement of trading, professional or economic interests common to the defendants, there is no liability. If it be the carrying out of some religious, social or political object, the law prefers to examine the motive or object in each case before pronouncing an opinion. The pursuit of economic ends is most favoured.

t will be noted that Case II. assumes that all the parties intend ict damage. The existence of such agreement or common sign assumes that damage is inflicted deliberately and not 1 dentally. Not only was such deliberate infliction of injury aracteristic of the Mogul Case (1); the fact of agreement itself ludes the possibility that the injury inflicted is accidental and not designed. Before the defendants can be held liable, we must in the object or motive of the combination beyond the iate intention or purpose of inflicting injury. The question es closer examination. Case III. is typical, even of the cases where, if all parties had the object or motive, there would either be clear liability or clear e of it. Take the following illustration : - A, B, C, D, E nd F agree to inflict damage on X. A and B agree, because they desire to protect the standards of the professional body to which A, B, G, D, E and F all belong, and have no other object or motive. 'and D wish to revenge themselves on X for some personal quarrel, g this motive from the other parties to the agreement from each other. E. and F act from mixed motives: they nely wish to maintain the professional ideals of their body, they also have a strong dislike to X and it can truly be said that they are gratifying it when they enter into the agreement. ~ In such case, the only state of mind which is common to A, B, D, E and F is the immediate intention or purpose of inflicting ge upon X. But there are the other facts mentioned. Who is liable for conspiracy to injure? In my opinion A and B, not of the malicious motives animating C and D or the strong e felt to X by E and F, are not liable. C, D, E and F are not e agents of A and B so as to alter the nature and character, the ect or motive, of the common agreement. e example presented by the position of E and F is typical of e group activities. But it is convenient first to examine the stion of liability in C and D. Each has agreed with five others, and each isinspired by personal malice. But the fact of the existence of such malice is not made known by either to the other, and it is unknown to the other parties to the agreement. It is not

possible to say that C and D alone are liable for conspiracy to injure, except on the basis that there has been an agreement come to by 4 them alone. But the only agreement entered into, has six parties 3 not two. The position might be different, if it could be shown that C and D, for the purpose of satisfying their hatred of X, agreed between themselves to procure acts to be done by A, B, E, F, and themselves all in association, for the purpose of causing harm to X. Such agreement would be a separate conspiracy to injure, carried out by using the other persons as instruments for effectuating their own design. In such a case C and D would be liable. But, in the absence of such a separate agreement between them, the uncommunicated existence of an evil motive in each towards X, would not make themselves alone liable to X. This view is, however, - subject to a further contention shortly to be mentioned, and, I hope, disposed of.

Upon the same footing, E and F would not be liable, because no separate understanding between them is shown. In Case III. therefore, subject to the same contention, neither A, B, C, D, H, nor F is liable as for " conspiracy to injure."

One question raised by Lord Sumner in Sorrell v. Smith (1) does not concern the special series of difficulties raised by Case III., but only the question in II. Suppose that A, B, OC, D, E and F agree to inflict damage on X. All intend to injure X and X is injured. All desire to protect or advance their common economic interests so that, if such were their only motive, object or desire, no liability would attach to them. But all heartily dislike X and are gratified and pleased both at the decision to inflict harm on him and its actual infliction. Is there liability in such a case? Words are deceptive. ' " Dislike '' isarelative term. The person injured by the combination may be "disliked," '' unpopular," even "detested," because he has not observed the standards of the group with which he has been associated, or because he threatens their economic well-being. In such cases, it is as difficult to say that the feeling of dislike makes the agreement unlawful, as to infer, from the exhibition of strong indignation on the part of a defendant whose reputation is attacked by a plaintiff and who strongly counter-attacks, that such defendant

must be actuated by " express malice." (1) (1925) A.C. 700.

what is the real motive which lies at the root of every common

is: - _ "You must consider whether the act or acts complained of which caused loss and hurt to the plaintiff were done with the purpose of injuring the plaintiff. 'Was such a purpose the real root of the acts that grew from it, or was the true motive of the acts something else, such as, for instance, the furtherance of the defendant's own business 7" (per Lord Dunedin in Sorrell v. Smith (1) )-

If this principle applies, the question is approached by asking hether the predominant motive or object of the defendants is to rotect or defend their association, trade or professional interests ; my proved hostility or dislike to the plaintiff must be further yzed, in order to ascertain whether it is a motive related to a lash of economic or professional interests and arises from strong ons as to the plaintiff's own conduct in relation thereto ; her, on the other hand, the hostility or dislike is not a result 'the feelings and attachments of the defendants to the economic [professional interests which they allege they are advancing or but has its true source in personal hatred or bitterness. Godfrey Lushington said, in special reference to combined

to ask the question whether they acted to defend their own interests or to injure their economic adversary for the time is equivalent to asking of a soldier who shoots to kill in battle, he does so for the purpose of injuring his enemy or of g his country. The analogy is sound, because combined action is usually undertaken for the purpose, both of causing to the employers and for the improvement or maintenance of standards of the unionists. As Lord Sumner said in Sorrell v. Y (2): " All well planned and successful commercial action of kind must prejudicially affect the rival and is intended to do Such is the commencing and not the finishing point of the nt inquiry. Godfrey Lushington's further comment was that strong feelings c always present when unionists enter upon a struggle against iployers or non-unionists, and, therefore, actual ill will is never

(2) 1925) A.C, at p. 717 (2) (1925) A.C, at p. 734.

Dunedin's decision is that a Court or jury should be able to 4. ©. or A.

to cause hurt or harm to another. The question for the McKznyay

H.C. or A. absent if the struggle lasts - so that overt acts indicating " malice"

. jury that the unionists acted "maliciously," " vindictively," or in

are often available for the purpose of extracting a finding from a

The truth implicit in this observation has gradually been recognized, This is shown in some of the references I have given from the leading 4 decisions. Words and acts which, at first glance, indicate malice, hatred and all uncharitableness may, in the circumstances of a keenly fought industrial contest, be evidence of the clash and opposition of economic interests. The malicious object which must - characterize a combination to make it both a criminal conspiracy, and a necessary ingredient in the proof of the tort of civil conspiracy, must be a malevolence which is much more than a sign of the reality and persistence of the trade, industrial or professional struggle between the defendant and the plaintiff or the group with which he is associated.

Adopting the broad test suggested by Lord Dunedin, it appears clearly that "the real root "' of the action taken by McKernan, and the greasers against the plaintiffs was that of furthering the interests of the old trade Union and its members, by the method of preventing the members of the rival Union from gaining employment in the industry. Whatever dislike or hostility was displayed to Fraser or Stapleton was at once the result of the struggle for supremacy between the rival groups and the best evidence of the keenness of : such struggle. It wasastruggle for survival. Tosay that McKernan and those acting with him were eager to deprive Fraser and Stapleton of all chances of employment in the industry is true enough; but they cared nothing for Fraser and Stapleton as individuals. Their intention and purpose was to carry out their Union's policy against - each and every member who was engaged in the attempt to destroy - it. Whatever "malice" or "malevolence" arose in the struggle, had its source in the opposing interests of the two economic groups, and depended upon such conflict for its continuance and vitality.

The combination was not imbued with " independent malevolence" (Lord Swmner's expression) or " disinterested malevolence" (the quotation of Cardozo C.J.). No doubt, the combination had an "animus" against the opposing group, and wished to "punish" or _

and those joined with him against Fraser, Stapleton and

sentiment of loyalty to their trade organization. conclusion would be sufficient to dispose of the cause of stion against McKernan based upon " conspiracy to injure." But

ity" in the affair, that his liability may be discussed upon ie assumption that he was acting, merely to gratify a private itred or grudge.

'Indealing with Case III. I reserved consideration of the important oint of law which now arises. In the case of an agreement between B, ©, D, E and F to inflict injury upon X, the position supposed is that, out of the six participators in the combination, five desire to rotect their industrial interests, but one (say F) has no such desire or tive or object and is entering into the agreement solely out of a grudge against X not connected with the economic interest common to all defendants. It has been suggested that A, B, C, ) and Ei are liable to X as parties to a conspiracy to injure him cause the evil motive of F is imputed by law to all parties to the non agreement.

; 'The illustration may be discussed upon the basis that F is identical th McKernan, that he was consumed with a personal hatred of er and Stapleton, and that his actions at the " pick-up " were inted with such motives.

ct that he was acting in combination with the greasers at the ck-up, has the legal result that his motives are to be attributed to all members of the combination. It is then said that the combina- m possesses the quality of malevolence essential to a conspiracy injure, all parties to it are jointly and severally liable, the non- of the other parties is immaterial and that MeKernan's mal liability remains.

Pratt vy. British Medical Association (1) McCardie J. said: "1 ty incidentally add that, had it been necessary to decide the point,

| the members of the rival Union were intimately bound up with )

H.C. or A. T should hold that where persons are acting in combination to 1931.

achieve such a purpose as that which is shown in the present case,

s then the proved malice of one or more may be attributed to the

other participants in the combination." McCardie J. based this opinion upon two cases of defamation; Smith v. Streatfeild (1) and Thomas v. Bradbury Agnew & Co. (2).

In Smith v. Streatfeild (1) a writer and printer caused to be published a pamphlet, which was defamatory of the plaintiff. Between the writer and the person to whom the publication was made, there existed such a relationship that the occasion was privileged in favour of the writer. The law therefore entitled him to publish his defamatory pamphlet on one condition. The same right was sought to be availed of by the printer. He was held to be entitled to it, as well as the writer. But the right was subject to the same condition. The condition was that the person in whom the privilege was vested, should not abuse it by displaying express malice. But it appeared that the writer was animated by express malice. The condition subject to which the privilege came into existence was broken. Both writer and printer were therefore joint publishers of a defamatory document without the protection of privilege. Such a case has little bearing upon the supposed imputation to every member of a combination of the motive or spite of one member of it. The editor's malice was not "imputed" to the printer: it merely defeated the privilege.

In Thomas v. Bradbury Agnew & Co. (2) a defamatory book review was defended by the proprietors of Puxch and the writer, upon the ground of fair comment. The Court of Appeal held that the defence could not be sustained if the commentator was affected by malice. Evidence was admitted which showed that the writer of the review was on bad terms with the plaintiff. " Comment distorted by malice," said Collins M.R. (3), "cannot . . . be fair on the part of the person who makes it." Such case merely illustrates the principle that the immunity attached to defamatory publications upon the ground of "fair comment" is not absolute, but is defeasible upon proof that the comment is inspired by

(1) (1913) 3 K.B. 764. (2) (1906) 2 K.B, 627. ; (3) (1906) 2 K.B., at p. 642.

ditions, those conditions must be strictly observed.

, their liability is joint and several, and each is liable for the tire amount of damages sustained. And, if action is brought yainst several persons in respect of a tort said to be committed ly, but the facts show that one only is a tortfeasor, a verdict judgment may be recovered against him alone for the whole age sustained by the plaintiff. But, in a case of civil conspiracy A and B for damage caused by the carrying out of an agree- nt between them, it is not possible (except in the rare instances e evidence admissible against one party only, authorizes a to be made against him alone) to adjudge that A conspired with B, but that B did not conspire with A. Asa general rule, unless both are liable, neither is liable. _ In such connection, the question whether '' conspiracy "' as such 'is the " gist" of the tort, does not matter. Acts done in pursuance of the agreement causing temporal damage to the plaintiff must be as well as the agreement itself. But the plaintiff must the alleged conspiracy or agreement, implying that "the : al act of the crime is concert, by which mutual consent to a common purpose is exchanged " (Sir William Erle on Trade Unions, 31). The general rule is that he must fail against both parties, unless he sueceeds against both. When, therefore, McCardie J. says that "the proved malice of he or more may be attributed to the other participants in the combination," the authorities cited do not bear out the general ment, and principle is not consistent with the application of 'Statement to the tort of conspiracy to injure. The question is ys - what has been agreed upon ? - what is the nature of the nbination ? - it must be possible to say of the combination as ch that it is of a " malicious " character. I do not see how malice nputable to all participators in a design merely because it exists in one. The existence of a common purpose gives no authority every party toit, to act as he thinks best on behalf of the other po , for the attainment of the common purpose. If an agreement a common design is proved, each participant is the authorized

here two or more persons are proved to have jointly committed McKr:

agent of the others for the purpose of carrying out what is the design or agreement, but not otherwise.

I am of opinion that, if a number of traders or professional men or members of a trade union agree to do acts which must cause harm or damage to A, the fact that the sole motive of one member of the combination is a purely personal hatred of A and a desire for his ruin as an end in itself, does not convert such combination into an unlawful conspiracy. No doubt, overt acts or words indicating such personal malice may be of such frequent occurrence in and about the execution of the common agreement, and so well known to and accepted by all participators in it, as to furnish some evidence of the malicious nature of the whole combination. But acts or words indicating malice in one or two or more, are merely evidentiary, in order to prove the general motive or object. The evil motive proved to exist in one or two or more is not imputable to the other members of the combination. Each party is the agent of the others, only for the purpose of carrying out the agreed plan. If the plan is imbued with personal spite against a plaintiff, the nature or quality of the agreement may be termed " malicious." If there is an agreement to perform acts to A's detriment, and the motives of some participators are merely to protect or advance their profes- sional organization or their trading interests or their trade union, the additional fact that one or more other participators are not really pursuing such objects or motives, but merely desire to satisfy their personal hatred, does not give a different quality to the agree- ment. In short, such hatred or grudge does not, on any principle of law, become a motive imputable to those who are either unaware of it, or who, being aware of it, condemn.

This principle would itself be sufficient to find in McKernan's favour, even if it were found (which it is not) that his object at the '' pick-up " was to wreak some personal vengeance upon Fraser and Stapleton. He is under no liability for conspiracy to injure unless in respect of an agreement between himself and the six greasers to injure the plaintiffs. It must be possible to say, not only of McKernan but of the common design, that it was infected with, : or sprang from, personal hatred and malice against the plaintiffs. But there is no evidence of any knowledge by the greasers or other -

of the old Union, of any personal hostility to Fraser or H. ©. or A. on on the part of McKernan. There is no evidence of any baer

hostility to the plaintiffs on the part of any member of McKxnsas e old Union except McKernan. It is not true to say that the ned action taken at the " pick-up " had its source in personal ce, even if McKernan was so inspired. Indeed, the Magistrate's was that the greasers acted against the plaintiffs because 'Kernan forced them to do so. The only "common" design ved was to carry out the Union policy of not accepting engage- ents with members of the rival Union. McKernan was, at most, nstituted the agent of the other participants to carry out this . He could not act so as to bind them, except in pursuance what had been agreed upon. He was not the agent of all to 8 on their behalf, still less to have possessed in the past, a or object or desire or animus or motive to do the plaintiffs harm, y to satisfy such wish or object or desire or animus or motive. e result of such considerations is that there cannot be a finding

McKernan was a party to an executed conspiracy or agreement e, even if he himself was actuated by a purely personal grudge. y. Flood (1) shows that his own bad motives cannot affect ulness of what he did, considered merely as personal action. e bad motives of McKernan in doing certain lawful acts, do not the lawfulness of his conduct, the further fact that his conduct

8 were also parties, does not make McKernan liable for the rt of conspiracy to injure, unless the others are equally liable with _ Their good motives make it impossible to predicate of the mbination that it was an agreement entered into for the purpose ing personal malice. Assuming an agreement of the parties the shipping companies not to employ Fraser or Stapleton, Was not an agreement characterized by personal malevolence. @ greasers did not know of, much less approve or share, such

e that the result of this opinion is that, if members of a or trade organization acting together at their meetings, ide upon action adverse to a plaintiff or his group upon some

rA. ground of association policy, it will be very difficult to prove a case -

of conspiracy to injure against the association or its members. x There will always be available as evidence in favour of the defendants - the avowed objects of the association, and the attempted pursuit by members of such objects will seldom be possible of denial. In the second place, proof of spite, hatred or malicious feelings on the part of some members of the organization towards the individua or class injured by the collective action, will not be sufficient to prove the malicious quality of the combination. As it must be shown that the combination was entered into, " ultroneously " (the : phrase of Lord Dunedin) or with " 'disinterested malevolence' or something closely akin thereto " (per Cardozo C.J. in Nann v. Raimist (1) ) or with " independent malevolence " (per Lord Sumner, Sorrell v. Smith (2) ), the proof of personal malice on the part of some - members of the association will not show that the ultimate object - or motive of the members combining is malicious. Usually it will show that the common object is not malicious. 4

We are approaching a stage at which this anomalous cause of action, and the anomalous crime which must be proved as part of the cause of action, will rarely be susceptible of proof in trade or professional combinations. Unless there are numbers engaged in carrying out a common purpose, no crime and no cause of action will be established. The greater the number engaged in such an enterprise, the less likely is it that the purpose which is really common. is to gratify personal hatred. And if the persons combined ar associated together in some trade or professional organization which - is either recognized by law or not unlawful, the only common purpose - which will ordinarily be proved, will be that of protecting or advancing the collective interests of the organization.

One school of thought may contend that this conclusion a lead to reconsideration of the principle of Allen v. Flood (3). may be that if A, inspired by bad motives, does an act which is no a unlawful but which designedly causes injury to B, a proper sys of jurisprudence should hold A liable. Professor Goodhart recently pointed out the importance in this connection of sec. 226

N.Y., at p. 319. (2) (1925) A.C., at p, 737. (3) (1898) A.C. 1.

e German Civil Code, which declares that " the exercise of a

• which can have no purpose except the infliction of injury on t is unlawful."

Allen v. Flood (1) had been decided differently and if the system d prevailed, it would be possible to visit with liability those ipators in a common design to inflict injury who act from bad es, and to allow those whose motives are pure, to go free. The er, having been parties to the intentional infliction of damage ir private ends, would not escape because of those whose honest ion they have abused. But these fascinating questions now matter for legislative intervention, not judicial reaction. 1d as it is, it would hardly be reasonable to make members of a group, acting bona fide and in the supposed interests of the pup, liable in damages at the suit of A, merely because they enter 0 an agreement resulting in harm to A and some members bear personal and private grudge. If, in such a case, those who bear such malice also escape liability, be remembered (1) that they have not made a separate ment to inflict such injury; (2) that only one agreement and it is impossible to make them liable as parties to the ment unless the other parties to it are also liable; and (3) it is no more unreasonable that they should escape liability, that an individual should escape on the principle of Allen vy. Ms the "conspiracy to injure" part of the claim, McKernan because the common design had as its " real root," the e of all the greasers and McKernan himself to advance the rests of the old Union, and to protect it and its members against he strong opposition of the new. The facts show that the defence organization and its economic and industrial interests in on to the hostile operations of the rival Union, was the primary d substantial object of the action taken against Fraser and up . Such action deprived them of the chance of being ed, but it was not inspired by personal hatred of either of Any dislike evinced to them by McKernan or the members 'the Union was the result of what was considered to be their

H.C. or A. disloyalty to the old-established trade union. Even if McKern pe was inspired by hatred of the plaintifis in the sense of " independen McKerxax malevolence " (and the evidence does not establish this), such malic cannot be imputed to the greasers who acted in combination ¥ him at the pick-up. They, certainly, entered into the agre from motives of Union policy. They are not liable for conspir: to injure the plaintiffs. And if they are not, neither is MeKerna All three causes of action have failed, the appeal should be

McTiernan J. I am of the opinion that the appeal should b allowed. I have read the judgment of my brother Dixon, which I agree.

Appeal allowed with costs. Judgment of th Supreme Court discharged and in liew thereof appeal from Local Court allowed with co

Solicitors for the appellant, Nelligan, Hague & Parsons. Solicitors for the respondents, Scammell, Hardy & Skipper.