6.13 The tort of (three-party) intimidation

While, as noted above, the tort of two-party intimidation is not firmly established in Australian law, there is no doubt about the existence of the tort of three-party intimidation. Originating in the English case of Rookes v Bernard,^[1] it has since been applied in several Australian cases. Perhaps the most illustrative Australian authority on three-party intimidation is Latham v Singleton.^[2] That case involved a rather complicated fact pattern. Put simply, the plaintiff, an employee of the Broken Hill City Council, took action against several defendants (described by their own counsel as men of no great intelligence but with a deep sense of loyalty towards their workmates).^[3] It was alleged a conspiracy existed to intimidate the plaintiff’s employer in order to have the plaintiff fired. The plaintiff was in fact fired as a response to the other workers refusing to work with him. The Court discussed whether a threatened or actual industrial strike could constitute a threatened or actual breach of contract and held that it could.  However, in this case, the Court concluded that, while an inference could be drawn from the defendants’ actions that they wished for the plaintiff to be removed from his position, such a demand was never spelled out. For that, and other reasons, the Court considered that the defendants’ action could not be seen as an industrial strike, and thus “their actions must be judged within the ambit of the normal law of contract”.^[4]

In the light of this, the Court concluded that:

[I]n the case of most of the defendants they walked off the job when the plaintiff Latham appeared at the depot, rostered for day shift as the result of an agreement which would present a threat to the city council, in order that it would act to the detriment of the plaintiff. These defendants’ actions could not properly be described as the furtherance of a trade dispute and even if they could be so described there was not any, or sufficient, notice given of any proposed strike. As a result the actions of these defendants were a threat of an “unlawful” or “illegal” breach of contract and against them, subject to a possible defence of “justification”, the plaintiff’s cause of action based on intimidation should succeed.^[5]

As far as the requirement that there be “intent to harm the plaintiff”, the Court noted that:

In considering the proof or absence of this element, it is not to be confused with any inquiry about what secondary objects were hoped to be attained. Certainly the element must be the predominant object of the actor. A certain result foreseen but not aimed at is not enough. Nevertheless it is no wit less the ingredient of the tort if the harm sought is but a stepping stone to an ultimate objective. But the ultimate objective could be of importance in considering the defence of justification.^[6]

Chief Justice Nagle went on to discuss the possible defence of “justification”, hinted at in the quotes above, and expressed the view that:

To permit a plea of justification would mitigate some of the harsher effects [that] could flow from the decision of Rookes v Barnard [1964] AC 1129 … Although in principle it may sound odd that an “illegal” act can ever be justified, such an approach would appear to be oversimplistic and the better view seems that … defendants should be able to avoid a verdict if they can establish a defence of justification.^[7]

Thus, it seems possible that there is a defence of “justification” in relation to the tort of intimidation. This might not be as strange as it first seems. Indeed, while it may not be completely in line with Nagle CJ’s approach in the Latham case, it could be argued that the defence of justification merely is the flip side of the requirement that harm to the plaintiff is the defendant’s predominant objective. In other words, as soon as the defendant can show other, justified and stronger, motives for its actions, it can no longer be said that the harm to the plaintiff was the defendant’s predominant objective, and the action has been justified. In this context, Nagle CJ’s discussions of the individual defendants’ pleas of justification, in Latham v Singleton,^[8] are illustrative.

The first thing to note is that Nagle CJ made clear that the burden of proof rests on the defendant seeking to justify its actions.^[9] This means that, in interpreting Rule 26, one must be alert to the fact that the plaintiff need not prove that the defendant’s predominant objective was to harm the plaintiff. Rather, the defendant needs to prove that, while its actions harmed the plaintiff, they were nevertheless justified for some reason.

Second, Nagle CJ made clear that, even where the defendant has an unfavourable opinion of the plaintiff, a plea of justification may still succeed provided that the actions were predominantly motivated not by that opinion, but by some other purpose, such as, for example, proper union purposes, which was the case in Latham.

Finally, Nagle CJ’s discussion of the conduct of two different defendants is illustrative. In relation to one defendant, he noted:

After a perusal of the whole of his evidence … the Court has concluded that this defendant’s predominant purpose – albeit perhaps mistaken – was to serve the purpose of his union. In his case this circumstance outweighs any other and establishes his defence [of justification].^[10]

However, in relation to another defendant, Nagle CJ noted that: “Maybe it is arguable that his actions were, albeit mistakenly, directed to a union purpose. However, a mere tenuous connection with union purposes of itself would in general not amount to ‘justification’”.^[11] This clearly highlights the fine distinction that needs to be drawn in evaluating the possible defence of justification.

In addition to what was said above (at 6.5) about damages, it is to be noted that once the court has established that the plaintiff has suffered some actual financial loss, it may award damages for “past, present and future economic loss, the pain, suffering and distress caused to the plaintiff by the defendants’ actions”.^[12] Further, the court may award “exemplary and aggravated damages”.^[13]