Unlawful conduct
129 The UFU seeks to impugn the sending of the 17 August Letter as unlawful because it was, as I have found, beyond what the FRV Act authorised. It was said that a public official who purports to exceed his or her statutory authority and make a decision in the exercise or non-exercise of a power that he or she does not possess should be understood to have acted unlawfully for the purposes of s 343(1) of the FW Act. By contrast, the respondents submit that conduct should be understood to qualify as "unlawful" only if it is forbidden by law.
130 So far as the researches of counsel were able to ascertain, there is no authority that expressly identifies the boundaries of what is or is not "unlawful" conduct for the purposes of establishing an intent to coerce under s 343(1) of the FW Act. It is to be remembered that the concept is relevant not because it is incorporated expressly into the statutory injunction upon which the court is here focused; but because courts have factored it as a constituent element of "coercion". There is no obvious reason why the concept of "unlawful conduct" should be understood in the present context otherwise than as it is in other (non-coercion, or non-FW Act) contexts.
131 That being so, some assistance may be gained from authorities that have considered unlawfulness as an element of other civil wrongs. As the analysis that follows lays bare, they point overwhelmingly to a construction of "unlawful" conduct that aligns with what the respondents advanced: namely, that a respondent's conduct is apt to be described as "unlawful" if it was conduct in which he or she was not at liberty to engage because it was prohibited by law, statutory or otherwise.
132 Before turning to those authorities, it is appropriate to make what are surely some obvious observations.
133 First, the conduct of the Minister upon which the court is now focused involved the sending of the 17 August Letter and the Minister's reservation by it of a power to withhold her consent to FRV's potential execution of the Proposed Registration Board Agreement. FRV did not require that consent; and, by holding out otherwise, the Minister should be understood to have assumed (or, more accurately, to have attempted to assume) unto herself a statutory power that she did not have. There is no suggestion (much less any evidence to establish) that the Minister did what she did knowing that it fell outside what the FRV Act authorised, nor that she was reckless or indifferent as to the limits of her statutory powers. Rather and more simply, the UFU submits - correctly - that no such statutory authority attached to her conduct and that the Minister was wrong insofar as she thought otherwise.
134 Second, the sending of letters and the mistaken but honest assumption of a statutory power are not, by themselves, things that are forbidden under the FRV Act or any other law, written or otherwise. There is, for example, no equivalent in s 25A of the FRV Act of what appears at s 8(3), (4), (5) or (6). The latter provisions all prohibit certain things. Section 25A, by contrast, serves merely to confer various powers.
135 In Australia and New Zealand Banking Group v Karam (2005) 64 NSWLR 149 (Beazley, Ipp and Basten JJA), the New South Wales Court of Appeal had occasion to consider (amongst other things) whether certain securities were unconscionable under the general law and should be set aside because they were executed under duress. The court determined (at 168 [66]) that "duress", in that context, involved the application of pressure by means of threatened or actual unlawful conduct. Endorsing those observations in Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2013] WASCA 36, Murphy JA (McLure P and Newnes JA agreeing) observed (in obiter at [159], emphasis added) that:
…the concept of duress should be regarded as limited to pressure involving threatened or actual unlawful conduct, ie wrongful by reference to some external legal standard.
136 That notion of unlawfulness inhering in conduct that is wrongful is reflected in authorities that have considered the so-called economic torts. In Northern Territory v Mengel (1995) 185 CLR 307 (hereafter, "Mengel"), the High Court resolved to set aside the principle established nearly 30 years earlier in Beaudesert Shire Council v Smith (1966) 120 CLR 145, 156 (Taylor, Menzies, and Owen JJ; hereafter "Beaudesert"), namely that:
…independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other.
137 In the course of doing so, the plurality (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) had occasion to consider what was meant by acts that were "unlawful". Their Honours observed (at 336-337, references omitted):
There are two problems in this case which arise out of the statement of principle in Beaudesert. The first concerns "unlawful act". Is it an act forbidden by law or, simply, an unauthorised act in the sense of an act that is ultra vires and void? An analysis of Beaudesert would suggest that it is the former…And the cases in which the issue has since been considered have uniformly favoured the view that the Beaudesert principle applies only to acts forbidden by law.
138 Writing separately, Deane J addressed the same point as follows (at 362, references omitted):
In Dunlop v Woollahra Municipal Council, Lord Diplock, having referred to the distinction between "illegality on the one hand and invalidity on the other", said that their Lordships of the Privy Council had "no doubt" that the word "unlawful" as used in the Beaudesert proposition was "intended ... to be understood in what for the past 90 years has been its only accurate meaning", namely, illegal in the sense of being "contrary to law". While I would hesitate to assert that the "accurate meaning" of "unlawful" for the past ninety years had precluded the word ever being properly used to refer to mere invalidity on grounds such as "immorality" or "unreasonable restraint of trade", I agree that the word "unlawful" was used by Taylor, Menzies and Owen JJ in the critical passage in Beaudesert in the sense of "contrary to law" as distinct from either invalid or unauthorised…
139 Mengel involved allegations of conduct that was said to be tortious in multiple respects (not merely in the action-on-the-case sense previously recognised in Beaudesert). As concerned the constituent elements of the tort of misfeasance in public office, Brennan J (also writing separately to the plurality) observed (at 356) that "…a purported exercise of power is not necessarily wrongful because it is ultra vires". Although plainly stated in a different context, his Honour's observation marries with those of his colleagues recorded above (appreciating, of course, that a purported exercise of power could be impugned as wrongful if it were attended by other circumstances sufficient to engage, for example, the tort of misfeasance in public office). Importantly, the observation also reinforces the distinction that is to be drawn between conduct that is ultra vires and beyond what an administrative or executive actor has jurisdiction to do (on the one hand), and conduct that is wrongful and unlawful (on the other).
140 Something further should be said of the reasoning of Lord Diplock (delivering the opinion of the Privy Council) in Dunlop v Woollahra Municipal Council [1981] 1 NSWLR 76. Although raised in the context of a Beaudesert action-on-the-case claim, the Privy Council was there concerned to address an issue almost identical to what arises presently. There, the conduct that was said to be actionable involved the passing by a local council of two resolutions that, as it happened, were not validly passed. As Lord Diplock framed it (at 82), the question for determination was "…whether an act which in law is null and void and so incapable of affecting any legal rights is, for that reason only, included in [the expression 'unlawful']" (emphasis original). As the summary offered by Deane J in Mengel (above, [138]) makes clear, that question was answered very firmly in the negative.
141 Although action-on-the-case is no longer, unlawful conduct continues as an element of other torts. The tort of intimidation, for example, involves a person inducing a second person to refrain from exercising a legal right to deal or transact with a third person. It is perfected when the inducement is intended to injure the third person and assumes the form of a threat to commit an unlawful act as against the second person: Rookes v Barnard [1964] AC 1129; Latham v Singleton [1981] 2 NSWLR 843; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383.
142 Likewise (and as its name suggests), the tort of unlawful interference with contractual relations arises where a person deliberately engages in unlawful conduct; and does so intending to visit loss upon a second person via the prevention or frustration of the performance of a contract to which the second person is party: Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404, [208]-[211] (Beach J). Similarly, conspiracy by unlawful means occurs where a respondent reaches an agreement or understanding with another person whereby either or both engage in unlawful conduct with the intention of visiting loss upon a third person: Hillier v Martin (No 14) [2022] FCA 984 [93] (O'Sullivan J).
143 The tort of interference with trade or business by unlawful means is yet to be recognised by the High Court. This court has both rejected (Qantas Airways Ltd v Transport Workers' Union of Australia (2011) 280 ALR 503, 595 [430] (Moore J)) and doubted (Pathmanathan v St John of God Healthcare Inc (No 3) [2023] FCA 628, [354] (McElwaine J)) its existence in Australia; but others have recognised it (Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637, 667 (Brooking J; hereafter "Ansett"), Hardie Finance Corp Pty Ltd v Ahern (No 3) [2010] WASC 403, [720] (Pritchard J)). It is now well-established in the United Kingdom: see, for example, OBG Ltd v Allan [2008] 1 AC 1.
144 So far as I have been able to discern, there are no economic tort cases, Australian or English, that turn upon unlawful means that were said to have existed in conduct by a public official that was beyond his or her statutory authority. Overwhelmingly, where those torts have been found to have been committed, the unlawful means in question itself assumed the form of other tortious conduct (for example, nuisance, as in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia [1971] 1 NSWLR 760 (Jacobs, Holmes and Mason JJA) and Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 (Murphy J), or the inducement of contractual breach, as in Ansett or Merkur Island Shipping Corp v Laughton [1983] 2 AC 570 (Sir John Donaldson MR, O'Connor and Dillon LJJ)).
145 In Sanders v Snell (1998) 196 CLR 329, 341 (Gleeson CJ, Gaudron, Kirby and Hayne JJ) the High Court declined an invitation to decide "…whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia". Its reasons for doing so are significant for present purposes. In that case, the plaintiff, Mr Snell, was dismissed from his appointment as the Executive Officer of the Norfolk Island Government Tourist Bureau. His dismissal was effected without notice by the bureau's members upon direction from the Minister for Tourism, Mr Sanders. Amongst other things, Mr Snell alleged that Mr Sanders had, by unlawful means, interfered with Mr Snell's trade or business interests. The unlawful means were said to subsist in the want of procedural fairness that attended the direction that Mr Sanders issued to the bureau's members.
146 The High Court accepted (by majority) that that direction was void for want of procedural fairness and resolved to remit for rehearing Mr Snell's claim in tort for damages for misfeasance in public office. It nonetheless rejected (again by majority; Callinan J not needing to decide) the suggestion advanced by notice of contention that the direction to the bureau amounted to an interference with trade or business by unlawful means. It did so because it did not consider that the giving of an invalid direction could amount to "unlawful means".
147 After referring to Mengel and what was said in that case about an "unlawful act" being one that was "forbidden by law", the majority (Gleeson CJ, Gaudron, Kirby and Hayne JJ) observed (at 343 [35]) that the rejection in Mengel:
…of Beaudesert is…consistent with confining what is an unlawful act for the purpose of this tort (if, that is, the tort is to be recognised in this country). It is also consistent with (or at least not inconsistent with) excluding from the definition of what is an unlawful act for this purpose acts whose only "unlawful" aspect is that they are unauthorised in the sense that they are ultra vires and void.
148 It is not clear what was intended by the use of quotation marks around the final reference in that passage to what is "unlawful". Perhaps it might be thought to reflect a view that conduct that is void for want of jurisdiction (or for any other reason, for that matter) is not "unlawful" in the ordinary sense that attaches to that word.
149 Regardless, there is English authority consistent with the majority's observation. In Brekkes Ltd v Cattel [1972] Ch 105, the High Court of Justice rejected, albeit in obiter, a submission that entry into an agreement that was void as a restraint of trade at common law could suffice as the unlawful means by which a plaintiff's contractual relations were said to have been interfered with.
150 Similar sentiments were expressed by Lord Halsbury in Mogul Steamship Co Ltd v McGregor Gow & Co [1892] AC 25. His Lordship there had occasion to consider whether entry into a contract in restraint of trade might serve as the unlawful means by which the defendants allegedly conspired to injure the plaintiffs. He observed (at 39, again in obiter):
There are two senses in which the word "unlawful" is not uncommonly, though, I think, somewhat inaccurately used. There are some contracts to which the law will not give effect; and therefore, although the parties may enter into what, but for the element which the law condemns, would be perfect contracts, the law would not allow them to operate as contracts, notwithstanding that, in point of form, the parties have agreed. Some such contracts may be void on the ground of immorality; some on the ground that they are contrary to public policy; as, for example, in restraint of trade: and contracts so tainted the law will not lend its aid to enforce. It treats them as if they had not been made at all. But the more accurate use of the word "unlawful,"…namely, as contrary to law, is not applicable to such contracts.
It has never been held that a contract in restraint of trade is contrary to law in the sense that I have indicated.
151 In the same case, Lord Hannen made a similar observation (at 58, references omitted):
It was contended that the agreement between the defendants to act in combination which was proved to exist, was illegal as being in restraint of trade. I think that it was so, in the sense that it was void, and could not have been enforced against any of the defendants who might have violated it... But it does not follow that the entering into such an agreement would, as contended, subject the persons doing so to an indictment for conspiracy…
152 In Fatimi v Bryant [2002] NSWSC 750 (Campbell J), the New South Wales Supreme Court had occasion to consider whether a transfer of land was sufficient to stand as the unlawful means by which it was alleged that the defendant had conspired to injure the plaintiff. It was said to have been effected with the intention of defrauding creditors. If that were so, it might have been understood to have amounted to a voidable alienation of property under s 37A of the Conveyancing Act 1919 (NSW). Campbell J observed (at [202]):
…s 37A does not make any conduct unlawful. Rather, it provides for a legal consequence to follow (voidability) if there is conduct of a certain type (alienation of property with intent to defraud creditors). It creates no prohibition on conduct. Breach of s 37A cannot provide the "unlawful means" needed for the tort of conspiracy.
153 It is, of course, the case that none of the authorities that have considered what might or might not amount to unlawful conduct in a tortious context is binding upon the court now. Nonetheless, they are instructive and the principles that have been developed in that context are, in my view, ripe for application here.
154 An executive or administrative decision that is a product of jurisdictional error is "regarded, in law, as no decision at all": Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 615 [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646-647 [152] (Hayne J). So understood, it is difficult to see how such a decision might be impugned as unlawful in any legally accurate sense. "Unlawful" means contrary to law. A decision that is a product of jurisdictional error is not, merely for that reason, contrary to anything. It is a non-decision; something that is incapable of visiting any legal consequence.
155 Insofar as the authorities contemplate that conduct might qualify as coercive for the purposes of s 343(1) (or, more broadly, pt 3-1) of the FW Act if it was unlawful, that must be understood to reference conduct in which a person was not at liberty to engage because it was, as the High Court put it in Mengel, forbidden by law.
156 Presently, there could be no suggestion that, by sending the 17 August Letter (and, thereby, purporting to reserve unto herself a power to withhold consent to FRV's entering into the Proposed Registration Board Agreement), the Minister engaged in conduct that was forbidden by law. Generally speaking (and acknowledging that there are exceptions), the law does not forbid people from writing letters, nor from mistakenly asserting that they possess certain powers. Here, the worst that can be said of the Minister's conduct is that it was not authorised under the FRV Act.
157 For the purposes of assessing whether it might qualify as coercive for the purposes of s 343(1) of the FW Act, I do not regard the Minister's conduct to have been relevantly unlawful.