McKernan v Fraser [1931] HCA 54

McKernan v Fraser [1931] HCA 54 - HCA 1931 case summary — Zoe

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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

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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 :

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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

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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

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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.

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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

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, 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

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Judgment (288 paragraphs)