Dear Colleagues;

While it is only a first instance decision, I thought the ruling in Uber BV & Anor v Howarth [2017] NSWSC 54 (3 April 2017) http://www.austlii.edu.au/au/cases/nsw/NSWSC/2017/54.html might be of interest as a (fairly rare) example of a successful action based on the economic tort which in the UK seems to be called “Causing Loss by Unlawful Means” and in Australia at the moment seems to be regarded as “3 party intimidation”. The well known company Uber was operating in a legally “gray” area by encouraging its drivers to carry passengers without holding a taxi license (the law has changed in recent years to accommodate this model, I understand). At any rate during this time Mr Howarth decided he would take it on himself to conduct “citizens’ arrests” of Uber drivers for breaking the law. He did this on 9 occasions and filmed himself and put the footage on social media. Uber then sued Howarth for the tort of intimidation. The claim was successful, the judge awarding an injunction against similar actions in the future.

Slattery J noted as follows concerning this action in Australia:

 

121. Uber contends that on these facts Mr Howarth has engaged in the tort of intimidation. The elements of the tort may be shortly stated. In Sid Ross Agency Pty Limited v Actors and Announces Equity Association of Australia  [1971] 1 NSWLR 760 (“Sid Ross”) at 766E-F, Mason JA (Jacobs and Holmes JJA agreeing) identified the elements of the tort in the following terms:

“... If A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C”.

122. The Victorian Court of Appeal recently approved this statement in CFMEU v Boral Resources (Vic) Pty Ltd  (2014) 45 VR 571;  [2014] VSCA 348 at [37]:

“In our view, the respondents’ submissions should be accepted. None of the matters relied on by the appellant casts doubt on the correctness of the decision in Sid Ross,[36] which recognised the tort of intimidation as part of the common law of Australia. ”

123. The elements of the tort therefore can be identified as follows:
     • (a) A intends to injure C;
     • (b) A gives effect to his intention by threatening B that A will commit an unlawful act as against B;
     • (c) The unlawful act is threatened, unless B refrains from exercising his legal right to deal with C; and
     • (d) B is thereby induced to refrain from exercising his legal right to deal with C.

 

Here on the facts it was held that Mr Howarth had been behaving unlawfully in conducting his “arrests”, as under relevant statutory provisions his actions were neither “necessary” nor carried out with the intention of commencing criminal proceedings- see [136]. Hence his actions of grabbing and holding the drivers were unjustified acts of battery and false imprisonment. He intended to injure Uber in its business model, and his actions had the effect of inducing the drivers not to drive for Uber. Hence the tort was made out.

I think that on the facts the claim would have been successful applying Lord Hoffmann’s criteria for “causing loss by unlawful means” in OBG v Allan. However, while individual trial judges in Australia have followed OBG, there is no clear support yet at a superior appellate level in Australia for that decision, the Vic CA as noted above preferring to use the tort of intimidation in its 3 party version.

Regards

Neil

 

 

NEIL FOSTER

Associate Professor

Newcastle Law School

Faculty of Business and Law

MC177 McMullin Building

 

T: +61 2 49217430

E: neil.foster@newcastle.edu.au

 

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Blog: https://lawandreligionaustralia.blog

 

 

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