6.5 The tort of (two-party) intimidation

The legal principles of a tort of two-party intimidation do not appear entirely settled in Australian law. The tort of intimidation originated from the House of Lords decision in Rookes v Barnard,^[1] in which the plaintiff was a draftsman employed by the BOAC (later British Airways). The plaintiff resigned his membership in the union, and, in turn, the union members threatened the BOAC with a strike if the plaintiff was not removed from the office within a certain time. The threat of a strike was held to be an unlawful act, and resulted in the BOAC dismissing the plaintiff, who, in turn, suffered loss. Thus, the Court held that all the elements of the tort of intimidation were satisfied, and that the plaintiff was entitled to damages. As is clear, this was a case of three-party intimidation.

The tort of intimidation has been applied in Australia in relatively recent decisions such as Bracher v Club Marconi,^[2] which also is a case involving a labour dispute. In that case, a former employee was taking action against his former employer due to having suffered a personal injury allegedly stemming from the employer’s conduct. The Court noted, with apparent approval, how one text on torts law described the tort of intimidation as involving three elements:

(1) that the defendant has made a demand, coupled with a threat to either the plaintiff or a third party; (2) that the threat is to commit an unlawful act; and (3) that the person threatened complied with the demand, thereby causing loss to the plaintiff.^[3]

Further, the Court went on to quote Lord Denning’s statement in Stratford & Son Ltd v Lindley:^[4]

[The tort of intimidation] has long been known in cases of threats of violence.  If one man says to another, ‘I will hit you unless you give me five pounds’ [two-party intimidation], or ‘unless you give the cook notice’ [three-party intimidation], or ‘unless you stop dealing with your butcher’ [three-party intimidation], and the party so threatened submits to the threat by paying over the five pounds or by giving notice to the cook, or by ceasing to deal with the butcher, then the party damnified by the threat – the payer of the five pounds, or the cook or the butcher, as the case may be – has a cause of action for intimidation against the person who made the threat.  But it is essential to the cause of action that the person threatened should comply with the demand.  If he has the courage to resist it, and replies saying, ‘you can do your worst.  I am not going to pay you five pounds’, or ‘I am not going to give notice to the cook’, or ‘I am not going to stop dealing with the butcher’, then the party threatened has no cause of action for intimidation.  Nor has the cook.  Nor the butcher.  For they have suffered no damage by the threat.^[5]

Having concluded that the “gist of the third element of the tort of intimidation is the suffering of damage”,^[6] the Court went on to state that:

In the present case where the plaintiff’s damage lies in suffering a personal injury it seems to me at least arguable that the tort of intimidation was perfected when the plaintiff suffered the psychiatric and psychological injury he claims to have experienced and that, at that stage, the tort is perfected.^[7]

When adding up the above, it becomes clear that it is a requirement that the plaintiff has suffered damages for the tort of intimidation to have been committed. However, as was made clear in Australian Wool Innovation Ltd v Newkirk (No 2),^[8] while that damage may stem from the plaintiff having complied with the threat, it may also stem from direct suffering in not complying with the threat. That case involved intimidation of retailers in Europe and the US with a view to procuring an agreement from the retailers to not purchase products containing Australian wool because of the controversial procedure of ‘mulesing’. The Court stated that, “the tort of intimidation requires that the threatened unlawful act must be effective.”^[9]

Damages, the possible defence of “justification” and other aspects of the tort of intimidation are discussed in detail below at 5.13 in the context of the tort of three-party intimidation.

A recent case of relevance in this area is IceTV Pty Ltd v Ross,^[10] which mainly supports Articles 1 and 3 of Rule 19. In that case, the defendant brought a cross-claim of intimidation against the plaintiff, who had brought action for damages against Ross and another defendant for breaches of their respective contracts.  In respect of the intimidation claim, per Brereton J at [27], while this case involved a threat by the plaintiff to withdraw services supplied to the defendants, with the intention of causing harm to the defendants, “it is an essential element of the tort of intimidation that the threat be of an unlawful or illegal act… [and]… that act must be unlawful, independently of the demand.” Since there is nothing inherently unlawful about a services supplier declining to provide those services to a particular potential customer, the defendants’ cross-claim could not succeed.