LAWS1100 Nickolas James Business law 4_e_----_(chapter_5_deliberately_causing_harm)

LEARNING OBJECTIVES
5.1 What are the legal consequences of causing harm to another person? What are the differences
between criminal liability, tortious liability, contractual liability and statutory liability?
5.2 When will a person be legally responsible for deliberately harming the person or property of another?
5.3 When will a person be legally responsible for deliberately causing financial harm to another person?
5.4 What are the civil consequences of being found to have caused harm? What are the criminal
consequences?
CHAPTER 5
Deliberately
causing harm
James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089.
Created from uql on 2019-06-10 07:21:04.
Copyright©2014.Wiley.Allrightsreserved.

178 PART 2 Legal Consequences
JOHNNY AND ASH
[Ash and Johnny are still walking beside the river. Johnny finishes a phone call and pushes his mobile
phone back into his jeans pocket. He looks angry.]
Johnny — I don’t believe it! Last night is the first Saturday night in months that I take the night off. I
leave Cathy in charge of the restaurant. Cathy is my assistant manager. She’s got a bit of a temper, but
she works hard and she knows what she is doing. Anyway, apparently some kid at one of the tables
spills their soft drink on the floor. No problem there, it happens all the time. But half an hour later this
old lady at another table gets up to go to the toilet, slips over in the spilled drink, and bangs her head
on the floor. She is knocked out cold.
Ash — Oh no! That’s awful!
Johnny — Wait, it gets better. While waiting for the ambulance to arrive, the old lady’s son starts
telling Cathy off. He is yelling at Cathy that it was her responsibility to clean up the spill, and so on.
The son is a bit drunk, swearing and shoving Cathy around. So, Cathy punches the guy in the jaw.
Ash — What? Your assistant manager punched a customer?
Johnny — Knocked the guy out cold. I did say that Cathy had a temper. Anyway, now there are two people
lying next to each other, unconscious on the floor. The ambulance takes them both away, and then the
police arrive and take Cathy away, leaving my restaurant in the hands of my two waiters and two chefs.
None of them know how to run a restaurant. I wish I hadn’t switched my phone off last night. Anyway, now
I have to go in to work to sort out the mess. Not only do I have to do the accounts for last night, and make
sure that my money is still all there, but I have to return phone calls from two different lawyers, both of whom
are apparently threatening to sue me. As if I actually have any money. I don’t understand it. I wasn’t even
there, what does any of this have to do with me?
Ash — Well, there are many situations where the law makes us responsible for harm suffered by
another person. And it isn’t only when we deliberately and directly cause the harm. We can be held
responsible if we cause the harm indirectly, or if the harm is a result of our carelessness.
Johnny — I still don’t understand why it’s my fault.
Ash — Okay, let me explain . . .
CHAPTER PROBLEM
As you make your way through this chapter, consider whether Johnny should be legally responsible for
Cathy’s behaviour.
Introduction
In this chapter we consider the legal consequences of deliberately causing harm to another person. There
are many ways one person can deliberately cause harm to another person. They can attack the other person
physically (e.g. by punching them in the jaw), damage their personal property, disturb or annoy them at
home, or say things about them to damage their reputation. They can cause the other person to suffer finan-
cial loss by stealing from them, lying to them or about them, or intimidating them. Each of these situations
could lead to criminal prosecution and/or civil proceedings by the victim of the harmful conduct.
5.1 Causing harm
LEARNING OBJECTIVE 5.1 What are the legal consequences of causing harm to another person? What
are the differences between criminal liability, tortious liability, contractual liability and statutory liability?
Where one person’s conduct causes harm to another person and that conduct is not justified or excused by
law, there will be legal consequences. In this section we briefly consider five types of legal liability: criminal
liability, tortious liability, contractual liability, statutory liability and vicarious liability (see figure 5.1).

CHAPTER 5 Deliberately causing harm 179
Statutory
liability
Vicarious
liability
Contractual
liability
Tortious
liability
Criminal
liability
Harmful conduct
FIGURE 5.1 Forms of legal liability
CAUTION!
A single harmful act can give rise to more than one form of liability. For example, a breach of contract
may also be a tort and a crime.
Criminal liability
If someone has done something that causes harm to another person, and the harmful act is a crime, they
will incur criminal liability. A crime is a harmful act that will lead to prosecution by the state and, even-
tually, punishment of the offender.
Not all harmful acts are crimes, only those acts with relatively serious consequences. Taking the prop-
erty of another without permission is a crime. Breaking a promise made to another person is a harmful
act with legal consequences, but it is usually not a crime.
Each Australian jurisdiction has its own criminal legislation (see table 5.1). In four jurisdictions — the
Australian Capital Territory, New South Wales, South Australia and Victoria — the criminal law con-
sists of a combination of criminal legislation and common law principles. In the other four Australian
jurisdictions — Queensland, Western Australia, Tasmania and the Northern Territory — the parliaments
have codified the criminal law; that is, they have passed comprehensive legislation that overrides the
common law (although in Tasmania some common law principles remain).
The Criminal Code Act 1995 (Cth) contains a model criminal code intended for adoption by the States
and Territories with a view to achieving the harmonisation of Australian criminal law. This has yet to
occur.

TABLE 5.1 Sources of criminal law
Jurisdiction Source of criminal law
Commonwealth Crimes Act 1914 (Cth) + Criminal Code Act 1995 (Cth)
Australian Capital Territory Crimes Act 1900 (ACT) + Criminal Code 2002 (ACT) + common law
New South Wales Crimes Act 1900 (NSW) + common law
Northern Territory Criminal Code Act 1983 (NT)
Queensland Criminal Code 1899 (Qld)
South Australia Criminal Law Consolidation Act 1935 (SA) + common law
Tasmania Criminal Code Act 1924 (Tas) + common law
Victoria Crimes Act 1958 (Vic) + common law
Western Australia Criminal Code Act 1913 (WA)
Within any particular Australian jurisdiction, criminal penalty provisions are often contained within a
number of different Acts. For example, within each jurisdiction consumer protection legislation contains
criminal penalties. Most jurisdictions have a separate Summary Offences Act.1
Criminal liability is considered in more detail later in this chapter and the next.
Tortious liability
A harmful act may be a tort. The word tort is derived from the Latin word ‘tortus’, which means
‘wrong’ or ‘crooked’. A tort is a civil wrong; that is, it is an act that causes harm to another person and
gives that person the right to commence litigation to recover compensation or some other civil remedy.
Whereas criminal law is concerned with punishment of the wrongdoer, tort law is concerned with the
provision of a remedy to the victim of the harmful act. There are other important differences between a
tort and a crime relating to how an action is commenced, the standard of proof and the outcome of the
proceedings (see table 5.2).
TABLE 5.2 Differences between tortious liability and criminal liability
Tortious liability Criminal liability
Objective Remedy Punishment
Action commenced by Plaintiff (victim) Crown
Standard of proof Balance of probabilities Beyond all reasonable doubt
Outcome Win or lose Guilty or not guilty
A single harmful act may be both a crime and a tort. For example, if Johnny deliberately causes
physical injury to another person, he commits the crime of assault and may be prosecuted by the state,
but he also commits the tort of battery (see below), and the victim of his harmful act may commence a
civil action against Johnny.
Tort law is primarily case law, developed by the courts over hundreds of years. In recent years, how-
ever, a number of important pieces of legislation have added to, varied or abolished the case law prin-
ciples, particularly in the areas of negligence and defamation.
Tort law is considered in more detail in this chapter and the next.
Contractual liability
A contract is a legally enforceable agreement. If a person who engages in harmful conduct has a con-
tractual relationship with the victim of the harm, then the harmful conduct may give rise to contractual
1 Summary Offences Act 1988 (NSW); Summary Offences Act 1923 (NT); Summary Offences Act 2005 (Qld); Summary
Offences Act 1953 (SA); Summary Offences Act 1966 (Vic).

liability. For example, if a careless act on Johnny’s part causes harm to one of his customers, he not only
commits the tort of negligence, he also breaches the contract that he has with the customer, giving rise to
both tortious and contractual liability.
Like tort law, contract law is concerned with the provision of a remedy to the victim of a harmful act.
There are, however, important differences between contractual liability and tortious liability. Tortious
liability can arise in the absence of a contract and even in circumstances where the parties are complete
strangers, but contractual liability arises only if there is a contract in existence between the plaintiff
and the defendant. Johnny owes tortious obligations to a wide range of family members, neighbours,
acquaintances, strangers, fellow motorists, pedestrians, and other members of his community, but he
owes contractual obligations only to a limited number of employees, customers and suppliers.
Contractual liability is considered in more detail in coming chapters.
Statutory liability
A harmful act may — in addition to being a crime, a tort and/or a breach of contract — contravene one
or more statutes, giving rise to statutory liability. Many statutes impose legal liability. For example, if
Johnny carelessly sells a defective product, he not only commits the tort of negligence and breaches the
contract with the buyer, he also contravenes the Australian Consumer Law (ACL).
Contract law and tort law are primarily case law, and typically prohibit general forms of harmful con-
duct such as dishonesty and carelessness. Statute law, on the other hand, is made by parliaments and
prohibits specific types of harmful conduct such as engaging in pyramid selling, breaching copyright, or
breaching a duty to avoid insolvent trading.
In most instances contravention of a statutory duty will lead to prosecution or litigation by the relevant
statutory authority. In some cases individuals affected by the contravention of statutory duty may be
entitled to bring a private civil action.
Statutory liability is considered in detail throughout the other chapters of this text.
ACTIVITY 5.1 — APPLY
Prepare a table summarising the similarities and differences between criminal liability, tortious liability,
contractual liability, and statutory liability.
Vicarious liability
In some circumstances a person will be held liable for harm caused by another. This is known as
vicarious liability. It arises most frequently within the relationship of employer and employee; for
example, Johnny will be liable for any harmful conduct by his employees at the restaurant while the
employees are carrying out their duties.
If an employee is undertaking authorised work in an unauthorised or wrongful manner, the employer
will still be vicariously liable for their actions.
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509
The driver of a petrol tanker lit a cigarette while delivering petrol to an underground tank. The lit ciga-
rette caused a fire. The court had to decide if the employer of the driver was liable for the damage. The
employer argued that the driver was not permitted to smoke while delivering petrol. The court decided that
the employer was nevertheless liable because, at the time, the driver was carrying out an authorised task.
However, if the employee is acting well outside the scope of their employment the employer will not
be vicariously liable.

Deatons Pty Ltd v Flew (1949) 79 CLR 370
A bar attendant at a hotel got into an argument with a customer, Flew, about his continued use of bad
language. The bar attendant threw a glass of beer at Flew’s face. Flew commenced legal proceedings
against the owner of the hotel, Deatons Pty Ltd, claiming that Deatons Pty Ltd was vicariously liable for
the bar attendant’s actions. The court decided that the bar attendant was not acting within the scope of
their employment at the time of the incident and that, therefore, Deatons Pty Ltd was not vicariously liable
for the bar attendant’s actions.
Most of the vicarious liability case law is concerned with the liability of an employer for the negli-
gence of an employee. However, courts have also confirmed that an employer may be held liable for
intentional harm caused by an employee, and even for crimes committed by an employee, if the employ-
ee’s misconduct is sufficiently connected to the risks inherent in the employer’s business.2
Note that an employer is not vicariously liable for the conduct of an independent contractor.3
Vicarious liability also arises in other contexts, including:
•• the liability of a principal for the actions of their agent, and
•• the liability of one partner for the actions of the other partners.
ACTIVITY 5.2 — REFLECT
Refer to ‘Johnny and Ash’ at the beginning of this chapter. Is Johnny liable for Cathy’s conduct?
REVISION QUESTIONS
Before proceeding, ensure that you can answer each of the following questions.
5.1 What is criminal liability?
5.2 What is tortious liability?
5.3 What is contractual liability?
5.4 What is statutory liability?
5.5 What are the similarities and differences between these four forms of legal liability?
5.6 When is an employer liable for the conduct of an employee?
5.2 Deliberately causing harm to person or property
LEARNING OBJECTIVE 5.2 When will a person be legally responsible for deliberately harming the
person or property of another?
In this part of the chapter we focus on the legal consequences of deliberately causing harm to the person
or property of another. Later in the chapter we consider the consequences of deliberately causing finan-
cial harm, and in a coming chapter we consider the consequences of carelessly causing harm to the
person or property of another, and of carelessly causing financial harm (see figure 5.2).
Deliberately causing harm to the person or property of another may give rise to criminal liability and/
or tortious liability.
Criminal liability
Some (but not all) forms of harmful conduct will give rise to criminal liability. In this section we con-
sider the range of criminal offences and defences only briefly as this is a business law text, and we are
more concerned with civil law than with criminal law.
2 Lloyd v Grace, Smith and Co [1912] AC 716.
3 Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

Criminal liability
Tort of trespass
Tort of nuisance
Tort of defamation
Tort of negligence
Tort of deceit
Tort of passing off
Harm to third party
Defective productsCarelessly
Deliberately
Deliberately
Harm to the person
or property of
another
Financial harm
Causing
Carelessly
Negligent
misstatement
Tort of intimidation
Tort of interference
with contractual
relations
Criminal liability
FIGURE 5.2 Consequences of causing harm
Criminal offences
Criminal offences include:
•• offences against the person, such as murder, manslaughter, assault, sexual offences and kidnapping;
•• offences against property, such as stealing, robbery, burglary, forgery and corporate crime;
•• offences against public order, such as treason and sedition; and
•• offences against administration of the law and public authority, such as perjury and destroying evidence.

ACTIVITY 5.3 — RESEARCH
Download the criminal legislation of your State or Territory (see table 5.1). Locate definitions of
(1) assault, (2) burglary, (3) sedition, and (4) perjury.
Criminal offences can also be classified as either indictable offences or summary offences.
An indictable offence is a serious criminal offence such as murder, manslaughter, rape or robbery. If
a person is charged with having committed an indictable offence, a committal proceeding is first held
in a lower court to determine whether or not there is sufficient evidence to justify a full criminal trial.
If the magistrate decides that there is sufficient evidence, the criminal trial proceeds in a higher court
before a judge and jury.
A summary offence is a less serious criminal offence such as common assault, a traffic offence, or
being drunk and disorderly. If a person is charged with having committed a summary offence, the crim-
inal trial is held before a magistrate in a lower court.
Some indictable offences are dealt with ‘summarily’, that is, in a lower court. These are usually cases
involving damage to property up to a certain monetary value. As a general rule, the defendant must con-
sent to the matter being heard summarily.
Criminal guilt
According to the common law, a person cannot be found guilty of a crime unless two things can be
established:
1. a wrongful act (actus reus), and
2. a guilty mind, that is, intention, foresight, knowledge or awareness (mens rea).
However, if the offence is created by legislation rather than common law, the legislation may not
require the establishment of mens rea in order for the defendant to be found guilty. This is known as
a ‘strict liability’ or ‘absolute liability’ offence. For example, if the defendant has been charged with
driving a motor vehicle in excess of the speed limit, it is not necessary to establish that they did so inten-
tionally; establishing that the defendant has committed the actus reus will be sufficient.
Criminal defences
If a person is prosecuted for a crime, they are entitled first to rely upon the fact that the Crown must
prove the accusation beyond reasonable doubt. The burden of proof is on the Crown, and the defendant
does not necessarily need to raise any defence, although it is usually wise to do so.
There is a range of defences that, although not involving a denial by the defendant that the criminal act
took place, involve an assertion that one or more of the necessary elements of criminal guilt were not present.
•• Self-defence — in appropriate circumstances, the use of force can be used in self-defence or in the
defence of another person or property. The force must be reasonable and not excessive. The defence
is generally not available if the defendant acted after the danger had passed or if they were motivated
by revenge rather than self-protection.
•• Insanity — the defendant could argue that some form of mental illness meant that they were unable to
form the requisite criminal intention. However, if they are found not guilty on the grounds of mental
illness they may be held in custody at a psychiatric institution. Generally they will be released only
when it is found that they are no longer mentally ill or do not require detention. For this reason it is
often preferable to rely upon other defences.
•• Diminished responsibility — provision exists in New South Wales, Queensland, the Northern Territory
and the Australian Capital Territory for the partial defence of diminished responsibility. The defence is
established if it is shown that at the relevant time the defendant suffered from an abnormality of mind
that impaired their understanding of right and wrong, their perception of events, or their capacity to
control their actions. The defence can only be raised in the context of murder trials and has the effect
of reducing liability from murder to manslaughter.

•• Duress — if at the time the crime was committed the defendant’s will was ‘overpowered’ by compul-
sion or the will of another, they may be able to rely upon the defence of duress.
•• Automatism — automatism is action without conscious volition. If at the time of committing the crime
the defendant was not in conscious control of their actions, they will be entitled to an acquittal. At
common law the automatism may be the result of intoxication; this has been overridden by legislation
in most jurisdictions.
•• Infancy — at common law, a child under 7 years of age is incapable of criminal intention, and for
a child between 7 and 14 years, there is a (rebuttable) presumption that the child is incapable of
criminal intention. A child over the age of 14 incurs criminal liability in the same way as an adult.
Statutory amendments in each jurisdiction have raised the minimum age from 7 to 10.4
•• Necessity — this common law defence can be raised where the criminal act was necessary to avert a
serious consequence and the act was in proportion and appropriate to the gravity of the danger.
Review ‘Johnny and Ash’ at the beginning of this chapter. What crime has Cathy committed? What
defence might Cathy seek to rely upon?
In the remainder of this section we consider the civil consequences of deliberately causing harm.
The tort of trespass
A defendant commits the tort of trespass if they intentionally or negligently interfere directly with the
person or property of the plaintiff. There are three principal types of trespass (see figure 5.3):
1. trespass to land,
2. trespass to goods, and
3. trespass to the person.
Trespass to
goods
Conversion
Detinue
Battery
Assault
False
imprisonment
Land
Person
Goods
Trespass
FIGURE 5.3 Types of trespass
4 Criminal Code 1995 (Cth) s 7.1; Criminal Code 2002 (ACT) s 25; Children (Criminal Proceedings) Act 1987 (NSW) s 5;
Criminal Code 1983 (NT) s 38(1); Criminal Code 1899 (Qld) s 29(1); Young Offenders Act 1993 (SA) s 5; Criminal Code
1924 (Tas) s 18(1); Children, Youth and Families Act 2005 (Vic) s 344; Criminal Code Act 1913 (WA) s 29 para 1.

Trespass is actionable per se, which means that there is no need for the plaintiff to prove actual loss or
damage in order to commence a civil action against the trespasser. It is, however, necessary to prove that the
interference was either intentional or negligent. If it was accidental the tort of trespass is not committed.
Stanley v Powell [1891] 1 QB 86
Stanley and Powell were hunting together. Powell shot at a bird and missed, and the bullet ricocheted off of a
tree and hit Stanley. Stanley sued Powell in the tort of trespass to the person. The court decided that Powell
had not committed trespass because the interference was neither intentional nor negligent; it was accidental.
Trespass to land
Most people are familiar with trespass to land. This type of trespass occurs if the defendant intention-
ally or negligently interferes directly with land in the rightful possession of the plaintiff without the
plaintiff’s consent or other excuse. For example, Johnny commits the tort if he:
•• enters Simon’s home without his permission,
•• refuses to leave Simon’s home within a reasonable time of being asked to do so,5
or
•• leaves rubbish or other objects on Simon’s property.6
CHECKLIST
The tort of trespass to land is committed by X if all of the following requirements are satisfied:
◼◼ X interferes with Y’s exclusive possession of land.
◼◼ X’s interference is direct.
◼◼ X’s interference is either intentional or negligent.
◼◼ There is no consent by Y or lawful justification for the interference.
There does not have to be physical contact with the land; interference with the airspace above the land
will still be trespass.
5 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.
6 Bathurst City Council v Saban (1985) 2 NSWLR 704.

Kelsen v Imperial Tobacco Co [1957] 2 QB 334
An advertising sign erected by Imperial Tobacco Co on their property projected into the airspace above
a shop on Kelsen’s neighbouring property. The court decided that the sign amounted to a trespass to
land.
It is not only the owner of the land who has the right to sue others for trespass. A tenant in rightful
possession of land has the right to sue for trespass, including the right to sue the landlord if the landlord
enters the land without permission or lawful excuse.7
A person who has not been previously invited to the property is not necessarily a trespasser. If the
path or driveway leading to the entrance of the building is unobstructed, the entrance gates are unlocked,
and there is no sign or other indication that visitors are forbidden entry, there is an implied grant of per-
mission by the occupier of the property in favour of members of the public to use that path or driveway
to communicate with or make a delivery to a person in the building.8
Will trespassers be ‘prosecuted’?
Trespass to goods
The three torts relating to interference with goods are:
1. trespass to goods,
2. conversion, and
3. detinue.
Although they are separate and distinct torts, there is some overlap between the three forms.
Trespass to goods is direct and intentional or negligent interference by the defendant with goods in
the possession of the plaintiff without their consent. The plaintiff does not have to be the owner of the
goods, as long as they have rightful possession of the goods at the time. For example, Johnny commits
the tort of trespass to goods if, without Simon’s permission, he takes something from Simon or handles
or uses something in Simon’s possession.9
It is not necessary to prove that the goods were damaged in
any way.
CHECKLIST
The tort of trespass to goods is committed by X if all of the following requirements are satisfied:
◼◼ X interferes with Y’s possession of goods.
◼◼ X’s interference is direct.
◼◼ X’s interference is either intentional or negligent.
◼◼ There is no consent by Y or lawful justification for the interference.
Conversion is intentional (and not merely negligent) interference with the goods of the plaintiff in
a way that is inconsistent with their ownership or rightful possession of the goods. It will occur if the
defendant wrongfully takes goods belonging to the plaintiff with the intention of keeping them. It will
7 Gifford v Dent [1926] WN 336.
8 Halliday v Nevill (1984) 155 CLR 1.
9 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

also occur if the defendant rightfully has possession of the plaintiff’s goods but does something with
those goods without the plaintiff’s permission. For example, Johnny commits the tort of conversion if he
has borrowed Simon’s car with his permission, but he:
•• destroys the car,10
•• uses the car in a way which Simon has not authorised,11
•• refuses to return the car when Simon tells him to,12
or
•• transfers or sells the car to another person without Simon’s consent.13
Wrongfully detaining the goods of another is called detinue. It will occur if the defendant rightfully
has possession of the plaintiff’s goods but when the plaintiff demands that they return the goods, the
defendant unreasonably refuses to do so. It differs from conversion in that it includes negligent as well
as intentional detention of the goods. Thus, if Johnny borrows Simon’s car and then carelessly loses it,
his failure to return the car to Simon when asked to do so will be detinue.14
Trespass to the person
Trespass to the person is direct and intentional or negligent interference with the person (i.e. the body)
of the plaintiff. The three forms of trespass to the person are:
1. battery,
2. assault, and
3. false imprisonment.
Battery is intentional or negligent conduct that directly causes contact with the body of the plaintiff
without their consent or lawful justification. If the defendant punches the plaintiff, pushes them, stabs
them or shoots them they commit the tort of battery. Sometimes even the merest touch can be battery,
such as an unwelcome hug or kiss. The courts have however made it clear that the plaintiff is not entitled
to insist that no one ever touch them, and that a certain minimal level of physical contact is an unavoid-
able element of daily life.15
Rixon v Star City Pty Ltd [2001] 53 NSWLR 98
Rixon continued to play roulette at the Star City casino after being banned. A Star City employee con-
fronted Rixon and detained him until the police arrived. When the employee confronted Rixon, the
employee placed his hand on Rixon’s shoulder to get his attention. Rixon sued Star City in the tort of
battery. The court decided that the physical contact was made to get Rixon’s attention and as such was
‘generally acceptable in the ordinary conduct of daily life’. Star City was not liable.
People who participate in contact sports are deemed to have consented to physical contact within the
rules of the game.
CHECKLIST
The tort of battery is committed by X if all of the following requirements are satisfied:
◼◼ X causes some sort of physical interference with the body of Y.
◼◼ X’s act is direct.
◼◼ X’s act is either intentional or negligent.
◼◼ There is no consent by Y or lawful justification for X’s act.
10 Hollins v Fowler (1874–75) LR 7 HL 757.
11 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
12 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports 81–244.
13 Perpetual Trustees and National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports 80–295.
14 John F Goulding Pty Ltd v Victorian Railway Commissioners (1932) 48 CLR 157.
15 Collins v Wilcock [1984] 1 WLR 1172.

Assault is a threat that causes the plaintiff to anticipate direct, imminent and harmful or offensive
contact with their person. If the defendant causes the plaintiff to reasonably believe that they are about
to be subjected to a battery, the defendant commits the tort of assault. No physical contact needs to
occur for this tort to be committed; it is the threat of physical contact. For example, if Johnny threatens
to shoot Simon, or shakes his fist under Simon’s face in a threatening manner, he commits the tort of
assault.16
If the defendant accompanies the threatening gesture with words that make it clear that the plain-
tiff is in no imminent danger — for example, if Johnny shakes his fist at Simon and says ‘If I was
a violent man, I would hit you’ — the tort is not committed.17
However, if the defendant makes
carrying out the threat conditional upon the plaintiff complying with the defendant’s demand — for
example, if Johnny threatens to punch Simon unless Simon leaves the restaurant — the tort is still
committed.18
It is not necessary that the defendant actually be able to carry out their threat; the question is whether
the plaintiff reasonably believes that they are about to be physically attacked. If Johnny threatens to
shoot Simon with an unloaded gun, but Simon does not know that the gun is not loaded, Johnny still
commits the tort of assault. Similarly, it is not necessary that the defendant intends to actually carry out
the threat; it is necessary, however, that the defendant intends the plaintiff to believe that the defendant
is going to carry out the threat.19
CHECKLIST
The tort of assault is committed by X if all of the following requirements are satisfied.
◼◼ X causes Y to develop a reasonable apprehension of imminent physical contact.
◼◼ There is no consent by Y or lawful justification for the act.
How does the tort of assault differ from the crime of assault?
False imprisonment is the total deprivation of the plaintiff’s freedom of movement without
consent or lawful justification. It is not necessary that there be direct physical interference. There
must, however, be no reasonable means of escape.20
If Johnny locks Simon in a room against his
will, Johnny commits the tort of false imprisonment. Johnny also commits the tort of false impris-
onment if Simon is a passenger in Johnny’s car and insists that Johnny stop the car to let him leave,
and Johnny continues to drive at a relatively high speed; this is so even if the doors of the car are not
locked.
The restraint need not be physical — it may be psychological. If Johnny convinces Simon that he is
legally authorised to detain Simon and that Simon has no alternative but to remain in Johnny’s custody,
Johnny commits the tort.21
16 Stephens v Myers (1830) 4 Car & P 349; 172 ER 735.
17 Tuberville v Savage (1669) 1 Mod 3; 86 ER 684.
18 Rozsa v Samuels [1969] SASR 205.
19 Hall v Foncea [1983] WAR 309.
20 Burton v Davies [1953] St R Qd 26.
21 Symes v Mahon [1922] SASR 447.

It is not false imprisonment if the plaintiff has consented to being detained.
CHECKLIST
The tort of false imprisonment is committed by X if all of the following requirements are satisfied:
◼◼ X causes Y to be totally restrained.
◼◼ There is no consent by Y or lawful justification for the act.
Defences
Defences to the tort of trespass include the following.
•• Accident — the interference was neither intentional nor negligent.22
•• Consent — the plaintiff has either expressly or by implication voluntarily consented to the trespass.23
•• Necessity — the trespass was necessary to protect life, land or goods from imminent and real harm.24
•• Self-defence — the trespass (usually to the person) was reasonably necessary to protect the
defendant or another from imminent physical aggression by the plaintiff, and was proportionate to
the threat.25
•• Defence of property — the trespass (usually to the person) was reasonably necessary to protect the
defendant’s land or goods from imminent harm by the plaintiff and was proportionate to the threat.26
Southwark LBC v Williams [1971] Ch 734
Williams was a homeless person found squatting in a house owned by the Borough. When sued for tres-
pass he sought to rely upon the defence of necessity. The defence failed. As the court explained, if home-
lessness was recognised as a defence to trespass ‘no one’s house would be safe’ .
The tort of nuisance
Nuisance is an act by the defendant that indirectly interferes with the plaintiff’s use and enjoyment of
private or public land. There are two forms of nuisance:
1. private nuisance, and
2. public nuisance.
There is an important difference between nuisance and trespass to land: trespass is direct interference
with land in the possession of the plaintiff, and nuisance is indirect interference with the plaintiff’s use
and enjoyment of land. If Johnny enters Simon’s home without his permission, he commits the tort of
trespass. If Johnny plays loud music in his restaurant that disturbs his neighbours, he commits the tort
of nuisance.
Private nuisance
A private nuisance is an act by the defendant that indirectly interferes with the plaintiff’s use and
enjoyment of private land. The interfering act does not need to be committed from the defendant’s land;
it can be committed from the street or from airspace above the land.
22 Stanley v Powell [1891] 1 QB 86.
23 McNamara v Duncan (1971) 26 ALR 584.
24 Wilson v Pringle [1987] QB 237; Cope v Sharpe (No 2) [1912] 1 KB 496.
25 Fontin v Katapodis (1962) 108 CLR 177.
26 Norton v Hoare (1913) 17 CLR 310.

CHECKLIST
The tort of private nuisance is committed by X if all of the following requirements are satisfied.
◼◼ X interferes with Y’s use and enjoyment of private land.
◼◼ Y has an interest in that land (e.g. they are the owner or a tenant).
◼◼ Y suffers actual harm or damage.
◼◼ X’s interference is indirect.
◼◼ X’s interference is either intentional or reckless.
◼◼ X’s interference is sustained and unreasonable.
Examples of acts that amount to private nuisance include:
•• destruction of the plaintiff’s vegetation by noxious fumes,27
•• blocking of a watercourse causing flooding to the plaintiff’s property,28
•• excessive noise by the defendant,29
•• use of the defendant’s premises for prostitution,30
•• floodlights in the defendant’s backyard,31
and
•• vibration from the defendant’s factory.32
The law does not allow someone to insist that they never be disturbed, and instead recognises that
members of a community must be prepared to put up with some interference from their neighbours. It is
only when that interference becomes unreasonable that the tort of nuisance is committed. The law seeks
to balance the plaintiff’s right to undisturbed enjoyment of their property with the defendant’s right to
undertake the activity causing the disturbance.
In assessing the unreasonableness of the interference the court will take into account:
•• the severity of the interference,33
•• the duration and time of day of the interference,34
•• the location of the plaintiff’s property (e.g. if it is in a residential area or an industrial area),35
•• whether the plaintiff is abnormally sensitive,36
•• whether the interference is deliberate and malicious,37
and
•• whether the defendant took precautions to minimise the interference.38
Public nuisance
A public nuisance is an act that indirectly interferes with the plaintiff’s use and enjoyment of public
land such as a street or a park. For example, if Johnny leaves a delivery of new furniture on the pavement
at the front of his restaurant, he may commit the tort of public nuisance.
A particular individual is entitled to bring a legal action against the defendant for public nuisance
only if they can show that they have suffered loss over and above loss caused to members of the public
generally.39
Public nuisance is more likely to lead to prosecution under the criminal law or to proceed-
ings brought by the Attorney-General on behalf of the community.
27 St Helens Smelting Co v Tipping (1865) 11 HLCas 642; 11 ER 1483.
28 Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317.
29 Andreae v Selfridge and Co Ltd [1938] Ch 1.
30 Thompson-Schwab v Costaki [1956] 1 WLR 335.
31 Raciti v Hughes (1995) 7 BPR 14,837.
32 Sturges v Bridgman (1879) 11 Ch D 852.
33 Andrae v Selfridge and Co Ltd [1938] Ch 1.
34 Wherry v KB Hutcherson Pty Ltd (1987) Aust Torts Reports 80–107.
35 Sturges v Bridgman (1879) 11 Ch D 852.
36 Robinson v Kilvert (1889) 41 Ch D 88.
37 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
38 Painter v Reed [1930] SASR 295.
39 Walsh v Ervin [1952] VLR 361.

CHECKLIST
The tort of public nuisance is committed by X if all of the following requirements are satisfied.
◼◼ X interferes with Y’s use and enjoyment of public land.
◼◼ Y suffers actual harm or damage over and above that suffered by members of the public generally.
◼◼ X’s interference is indirect.
◼◼ X’s interference is either intentional or reckless.
◼◼ X’s interference is sustained and unreasonable.
Silservice v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 207
Queues of people lining up to buy bread from a shop owned by Supreme Bread were blocking access to
a neighbouring shop owned by Silservice. Silservice sued Supreme Bread in the tort of public nuisance.
The court decided that the interference was not unreasonable, and that Supreme Bread was therefore not
liable, but went on to explain that a defendant will be liable if the crowd is attracted by something done
by the defendant which is not necessary for the conduct of their business; or the defendant’s business
premises are inadequate or not suitable to hold or control the likely crowds; or the defendant failed to use
some reasonable means to minimise or prevent the damage to the plaintiff.
LAW IN CONTEXT: LAW IN THE MEDIA
Public park or private gym: boot camps or bloody nuisance?
Fitness ‘boot camps’ are becoming an increasingly common feature within Australian parks.
Typically, a personal trainer will charge a modest fee to instruct a small group that gathers in a public
park to work out. Sessions usually last about an hour.
But as boot camps have grown in popularity, some park users and residents have become annoyed
by the noise and competition for space. People have called for the practice to be closely regulated or
banned altogether.
Is this fair and what are the alternatives?

The problem with boot camps
The trouble is that in some cities such as the Gold Coast, some park users and nearby residents are
becoming fed up and complain their parks are ‘overrun’ by boot camps. They want their local councils
to do something about it.
Some boot camps have pumping music, training equipment and yelling instructors, which can disturb
other park users and nearby residents. Some people also feel that businesses should not profit from
public parks — at least not without giving something back to the community.
The Santa Monica City Council in the United States is considering closing down ‘boot camps’
altogether, whereas the Gold Coast City Council, like some other Australian councils, is proposing to
regulate them and charge instructors a fee for using public parks and reserves.
Boot camp supporters argue that participants have a right to use public parks, because they pay
council rates too. Boot camps also benefit society by making people fitter and healthier. Some have
questioned the right of local authorities to regulate park uses. This raises some important questions:
Why does conflict occur in parks? Who are parks for? Who should decide what is acceptable behaviour
in a park? Do local councils have the right to regulate park use?
What causes conflict in parks?
Researchers have found that conflict can occur in parks for multiple reasons. Park users may see these
spaces as appropriate for some activities but not others.
Conflict can also occur because some park activities disturb or disrupt other park users, causing
them to change the part of parks they visit, alter the time of day they visit, switch parks altogether, or
switch the activities they undertake. Local residents can also be affected by high levels of park use.
Is conflict in parks new?
Conflict among park users is as old as parks themselves. Parks began as the hunting preserves of the
social elite. Following the industrial revolution, when people flocked into cities from the countryside,
urban reformers demanded private estates be opened to the general public to improve the life of resi-
dents. London’s favourite parks such as Hyde Park and Regents Park began this way.
In the United States, park designers copied the European model and deliberately created ‘rural-like’
spaces in the city. These parks, which resembled landscaped gardens, were intended as places where
people could escape the stresses of urban life, relax, and commune with nature, but also interact with
each other. In principle, parks were democratic spaces.
But park designers also regarded early parks as ‘civilised’ spaces for ‘passive recreation’ — activities
such as running and ball-games were regarded as ill-mannered and inappropriate. Some early parks
developed reputations as places where prostitution, gambling, drunkenness, and robbery were common.
Park rangers and park police were created to regulate use, especially activities deemed immoral or
offensive. Early Australian parks such as Sydney’s Hyde Park developed rules like ‘keep off the grass’ to
prevent park users from damaging park facilities, but also prohibited rude language, gambling, climbing
trees, playing musical instruments, bathing, washing clothes and even singing.
Why and how are park activities regulated?
Regulating activities within parks and managing the behaviour of park users has occurred since the first
parks were created. Usually this is done by developing local laws with penalties that apply for breaching
park rules. Some rules make perfect sense. Playing golf or flying model aircraft can present a safety
hazard for park users.
But other park rules can be discriminatory, excluding some racial or ethnic groups who enjoy
particular activities. For example, Latinos in the USA have argued that prohibiting soccer excludes them
from parks.
There are alternatives. Researchers have shown that the design of parks can strongly influence how
parks are used and can thus reduce conflict. Carefully designing the physical space of parks may
encourage some activities but make other activities difficult or unappealing. Subtle design cues can
promote better behaviour without the need for fines, penalties or long lists of rules.
The space within parks can also be allocated for particular activities. Playgrounds, dog parks, skate-
board parks and community gardens were once derided just as boot camps are today, yet they all have
their place. And we can allocate activities according to time of day — designating places where activi-
ties are permitted at certain times but not others.

So what should be done about boot camps?
At face value, allowing boot camps in parks seems reasonable, especially in an era when public author-
ities are struggling to combat sedentary lifestyles and obesity. Researchers have found that parks
can help people to be more physically active. Boot camps are common in parks in the United States,
Canada and United Kingdom and are regulated through permits.
Instructors are required to have insurance and must operate in designated spaces at specific times of
the day. Many councils around the world are also installing fitness equipment in parks. So it seems like
a logical step to add boot camps to park programing.
At a time when planners and health officials are working to make parks livelier, more inclusive, and
spaces that promote physical activity — boot camps surely have their place.
If rock concerts, art exhibitions, movies and food festivals are appropriate in parks — why not boot
camps too?
Source: Jason Byrne, 25 January 2013, http://theconversation.com/public-park-or-private-gym-boot-camps-or-bloody-
nuisance-11664.
Give examples of each of the following:
1. Harmful conduct that amounts to private nuisance.
2. Harmful conduct that amounts to public nuisance.
3. Harmful conduct that will not qualify as private or public nuisance and must be tolerated.
Defences
Defences to the tort of nuisance include the following.
•• Consent by the plaintiff — the plaintiff consented to the nuisance, either expressly or by implication.40
•• Statutory authority — legislation exists that permits the defendant to engage in the harmful conduct.41
•• Contributory negligence — the harm suffered by the plaintiff was at least partially the result of the
plaintiff’s own carelessness.
The tort of defamation
Defamation is the publication by the defendant to a third party, in spoken or written form, of a statement
about the plaintiff that would damage the reputation of the plaintiff.
At common law, a distinction was drawn between two forms of defamation: libel and slander. Libel
was defamation in a permanent form, such as in writing or on film. Slander was defamation in a tran-
sient form, such as spoken defamation. Australian law no longer distinguishes between these two forms
of defamation.
Until recently, each State and Territory either had its own defamation legislation or relied upon
common law principles. In 2005 and 2006, each jurisdiction adopted model defamation legislation.42
Elements of defamation
The plaintiff must establish three things to successfully bring an action against the defendant in the tort
of defamation.43
1. The defendant’s statement about the plaintiff was defamatory.
2. The defendant’s statement identified the plaintiff.
40 Kiddle v City Business Properties Ltd [1942] 1 KB 269.
41 Cohen v City of Perth (2000) 112 LGERA 234.
42 Civil Law (Wrongs) Act 2002 (ACT); Defamation Act 2005 (NSW); Defamation Act 2006 (NT); Defamation Act 2005 (Qld);
Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA).
43 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86.

3. The defendant’s statement was published to a third party.
In addition, only a living plaintiff can sue for defamation — the dead cannot be defamed.
A corporation can only sue for defamation if it:
•• is a not for profit organisation, or
•• has fewer than ten employees.
Requirement 1: The statement was defamatory
The precise meaning of ‘defamatory statement’ is not set out in the defamation legislation, but it is
usually interpreted by the courts as meaning a statement that:
•• makes ordinary people think less of the plaintiff,
•• causes people to shun or ridicule the plaintiff, or
•• causes the plaintiff to be excluded from society.
What kinds of statements would be considered defamatory if made about:
1. a businessperson?
2. a university student?
3. an accountant?
4. a famous actor?
The defamatory imputation may be expressed clearly in the statement or implied by innuendo.
Bjelke-Peterson v Warburton [1987] 2 Qd R 465
The leader of the Queensland Opposition claimed that certain government ministers had ‘their hands in
the till’ . The court decided that this statement expressed by innuendo the claim that the ministers were
corrupt and was, therefore, defamatory.
The defendant’s intended meaning is irrelevant. The court decides whether or not the statement is
capable of being defamatory according to its ordinary and natural meaning (a question of law), and then
decides whether, in the circumstances, the statement was in fact defamatory (a question of fact).
Requirement 2: The statement identified the plaintiff
The defendant’s statement must identify the plaintiff. It is not necessary that the plaintiff actually be
named, as long as the statement is one that can be reasonably identified as referring to the plaintiff.
If it is an entire class of persons that has been defamed — e.g. by the statement ‘all lawyers are
thieves’ — then, generally speaking, an individual who is a member of the class cannot sue the
person who made the statement for defamation. If however the class has a limited membership,
they may be able to sue if they can show that the statement can be reasonably understood as refer-
ring to each of the individuals in the class. For example, if a person makes the statement ‘all of the
lawyers in this law firm are thieves’, one of the lawyers in the firm may be able to bring an action
in defamation. The larger the class the less likely it will be that a member of the class can sue for
defamation.
Requirement 3: The statement was published
‘Publication’ in this context simply means communicated to someone other than the plaintiff. It does not
necessarily mean published in a newspaper, book or magazine, although these things will usually qualify
as publication. ‘Publication’ includes sending an email or a text message; broadcasting a television pro-
gram; making an announcement at a lecture; and even talking to a friend.

CAUTION!
The requirement that a defamatory statement be ‘published’ does not mean that it must appear in a
book, newspaper or magazine. ‘Published’ in this context simply means ‘communicated’, and includes
any spoken or written statement made to or in the presence of another person.
For example, Johnny making a defamatory statement about Simon directly to Ash is ‘publication’, as
is Johnny making a statement about Simon directly to Simon in the presence of Ash.
Defamation proceedings can be brought not only against the original publisher, but also against any-
body who publishes or republishes the defamatory material.44
CHECKLIST
The tort of defamation is committed by X if all of the following requirements are satisfied.
◼◼ X makes a statement about Y that is defamatory.
◼◼ The statement identifies Y.
◼◼ The statement is published to someone other than Y.
Defences
The defamation legislation sets out a range of possible defences to the tort of defamation.
•• Justification — the statement about the plaintiff is substantially true.45
•• Contextual truth — the defamatory statement carried, in addition to the defamatory meanings about
which the plaintiff complained, one or more other meanings that are substantially true, and that the
defamatory meanings did not do any further harm to the reputation of the plaintiff because of the sub-
stantial truth of the other meanings.46
•• Absolute privilege — the statement was made during parliamentary or judicial proceedings, regardless
of their motives.47
•• Publication of public documents — the defamatory material was contained in a public document or
a fair summary of or an extract from a public document.48
Public document is defined as including
parliamentary reports, court judgments and other publicly available material.
•• Fair reporting of matters of public concern — the defamatory material was contained in a fair report
of any proceedings of public concern, including Parliamentary committees, commissions of inquiry,
law reform bodies, local councils and a range of corporate, professional, sporting and recreational
bodies.49
44 John Fairfax Publications Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50.
45 Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2005 (NSW) s 25; Defamation Act 2006 (NT) s 22; Defamation
Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25;
Defamation Act 2005 (WA) s 25.

•• Qualified privilege — the statement was not motivated by malice, and the defendant had an interest or
duty to make the statement to a person who had a corresponding duty to receive it.50
For example, if
Simon was formerly Johnny’s employee, Johnny made a defamatory allegation about Simon’s relia-
bility when asked if he would recommend Simon for a new position, and Johnny honestly believed the
allegation to be true, he could rely upon the defence of qualified privilege.
•• Honest opinion (fair comment) — the statement was:
–– an expression of opinion rather than a statement of fact,
–– made in relation to a matter of public interest,
–– based on material that is substantially true, and
–– honestly held.51
•• Innocent dissemination — the defendant published the defamatory material in their capacity as a sub-
ordinate distributor such as a bookseller or librarian, they neither knew nor ought to have known that
the material was defamatory, and their ignorance was not due to their own negligence.52
•• Triviality — the circumstances of the publication were such that the plaintiff was unlikely to suffer
any harm.53
Hockey’s defamation win is dark news for democracy and free speech
We should all be careful before saying anything that will hurt our politicians’ feelings: they might sue us
for defamation. On Tuesday, Treasurer Joe Hockey was awarded A$200 000 damages against Fairfax
Media in relation to a series of publications that focused on his political fundraising activities. That
this case was brought at all is ridiculous. That Hockey won is absurd. His victory marks a dark day for
freedom of speech in Australia.
The decision
In a lengthy decision, Federal Court Justice Richard White found that Hockey was defamed by a poster
advertising the story’s headline, and tweets on Twitter linking to the articles. Significantly, the court
found that the actual articles that the poster and the tweets related to were not defamatory.
The means of publication proved critical. By the nature of the medium, the poster was brief. It con-
tained the words: ‘Treasurer For Sale’. The tweets contained a similar message, but also a hyperlink to
electronic versions of the Fairfax stories.
The court accepted that these headlines were written merely to attract readers to the actual story.
Nevertheless, it found that the meaning of tweets and posters may be determined in isolation, without
reference to the story.
The court awarded $200 000 in damages: $120 000 for the poster and $80 000 for two tweets. The
award followed the usual principles for awarding damages in defamation cases. Among other reasons,
the damages were awarded to Hockey as ‘consolation’ for the distress and hurt caused.
Don’t newspapers have a defence in these kinds of cases?
There is uniform law in Australia providing a defence of ‘qualified privilege’. The defence protects publishers
like Fairfax Media that provide information to recipients (the public) who have some interest in receiving it.
50 Civil Law (Wrongs) Act 2002 (ACT) s 139A; Defamation Act 2005 (NSW) s 30; Defamation Act 2006 (NT) s 27; Defamation
51 Civil Law (Wrongs) Act 2002 (ACT) s 139B; Defamation Act 2005 (NSW) s 31; Defamation Act 2006 (NT) s 28; Defamation
52 Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2005 (NSW) s 32; Defamation Act 2006 (NT) s 29; Defamation
53 Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2005 (NSW) s 33; Defamation Act 2006 (NT) s 30; Defamation

The defence protects a vital function in our democracy. A well-informed population makes public
debate — and so our country — stronger. This is particularly important in respect of discussion of pol-
itical issues. In this case, Justice White quoted a previous High Court decision, which held:
The common convenience and welfare of Australian society are advanced by discussion —
the giving and receiving of information — about government and political matters.
So why didn’t the defence hold up this time? Because the Federal Court found that Fairfax Media’s
conduct was not ‘reasonable’.
Qualified privilege requires that the publisher was reasonable in its conduct in publishing the matter,
in all of the circumstances. Fairfax Media argued that if it was reasonable to publish the articles, then it
was also reasonable to draw attention to them with the posters and tweets. The court disagreed.
Extraordinarily, Justice White proposed more ‘reasonable’ posters and tweets, which would have satisfied the
defence of qualified privilege. ‘Access to treasurer can be bought’ could cost Fairfax nothing, but ‘Treasurer For
Sale’? 200K. If this case holds up, we might expect some seriously boring newspaper headlines in the future.
So will it be appealed?
It is not yet clear if Fairfax Media plans to appeal. It has 21 days to decide whether it wants to. If it does
decide to appeal, Fairfax Media faces further hurdles. The court made a number of findings just in case the
matter is appealed. These included a finding that the defamatory publications were made with malice.
Under the national legislation, a qualified privilege defence will be defeated if it is proven that the
publication was ‘actuated by malice’.
Defamation as a political weapon
Media law academic David Rolph recognises that Australian politicians of all political stripes have been
great consumers of defamation law. For example, earlier this year, former Queensland Premier Campbell
Newman sued shockjock Alan Jones for defamation, but later dropped his case.
Such claims are risky from a legal perspective. Journalists can claim a number of defences, and so
there is a very real prospect that a litigious politician will lose. So why do they do it?
A defamation case can be used as a political weapon. A rapid legal response to a negative publication
can give a politician some legitimacy in dealing with the bad publicity. A victory in court adds weight to
that legitimacy, albeit some time later. The law recognises that one of the purposes of awarding cash for
defamation is so the defamed person can be vindicated in the eyes of the public.
But this tactic reeks of desperation. Picking a fight with a media company should not be a politician’s priority.
We deserve better
One MP was quoted as saying:
Politicians are fair game and people should be able to speak freely.
I wholeheartedly agree.
The elephant in the room in this case was the actual story that was being attacked. There is a
legitimate need for a broader conversation about the role of money in Australian politics. It is
a conversation that Hockey, apparently, would prefer that we not have. Media organisations
ought to be able to instigate the debate without fear of reprisals by litigious politicians.
The Australian people deserve a more robust debate. It is worth considering whether we should
follow the US ‘public figure’ doctrine, which makes it harder for politicians to be successful in a defa-
mation claim.
The irony in all of this is the attention it has brought on the issue, and on Hockey. The public might
have long forgotten Fairfax Media’s headline, but with this decision, the wound is re-opened. Google
‘Treasurer For Sale’, and see what happens.
Source: Michael Douglas, 1 July 2015, http://theconversation.com/hockeys-defamation-win-is-dark-news-for-democracy-
and-free-speech-44129.
In what circumstances can a comedian who makes fun of a well-known politician rely upon the defence
of honest opinion?

REVISION QUESTIONS
5.7 What types of conduct are classified as criminal offences?
5.8 How are criminal offences tried?
5.9 What is the difference between an indictable offence and a summary offence?
5.10 What is a committal proceeding?
5.11 When is a person guilty of a criminal offence?
5.12 What are the defences available to a person accused of committing a criminal offence?
5.13 What is trespass?
5.14 What is trespass to land? Give some examples.
5.15 Who is entitled to sue for trespass to land?
5.16 Is every uninvited visitor a trespasser?
5.17 What is trespass to goods? Give some examples.
5.18 What is conversion? Give some examples.
5.19 What is detinue? Give some examples.
5.20 What is battery? Give some examples.
5.21 What is assault? Give some examples.
5.22 What is false imprisonment? Give some examples.
5.23 What defences are available to an action in trespass?
5.24 What is nuisance?
5.25 What is the difference between nuisance and trespass to land?
5.26 What is private nuisance? Give some examples.
5.27 What is public nuisance? Give some examples.
5.28 What are the defences to an action in nuisance?
5.29 What is defamation?
5.30 What is the source of defamation law in Australia?
5.31 What must a plaintiff establish to successfully sue in the tort of defamation?
5.32 What defences are available to an action in defamation?
5.3 Deliberately causing financial harm
LEARNING OBJECTIVE 5.3 When will a person be legally responsible for deliberately causing financial
harm to another person?
In the previous section we considered the legal consequences of deliberately causing another person to
suffer personal injury or damage to their property. In this section we consider the criminal and civil conse-
quences of deliberately causing another person to suffer a financial loss. Of course, business is often about
making money for oneself at the expense of customers and competitors, but if a businessperson’s conduct
crosses the line from entrepreneurial to harmful, both criminal law and civil law may become relevant.
Criminal liability
We focus in this section upon two types of criminal activity leading to financial harm:
1. white-collar crime, and
2. cybercrime.
White-collar crime
A white-collar crime is a crime committed by a person within a business or government organisation
where the person takes advantage of their position to commit the crime. White-collar crime is notori-
ously difficult to detect, and many white-collar criminals are not prosecuted.

Why do you think white-collar crime is so difficult to detect and prosecute?
Each of the following white-collar crimes may, if detected, lead to prosecution and punishment of the
offender under the relevant Federal, State or Territory criminal law.
•• Theft — taking another person’s money without their permission is theft. For example, an employee
of Johnny’s who takes the restaurant’s takings for the month commits theft, as does an employee who
takes stationery from the office cupboard without permission.
•• Embezzlement — a person commits embezzlement if they fraudulently use or retain the money of
another when that money has been entrusted to them. For example, a solicitor or accountant who uses
money belonging to a client for their own purposes commits embezzlement.
•• Bribery — giving a person money in return for some advantage or preferential treatment is bribery.
For example, if the buyer of a house pays the real estate agent in return for the agent convincing the
seller to agree to a lower price, the buyer has bribed the agent.
•• Insider trading — a person with a connection to a company (e.g. a director or a professional
adviser) who becomes aware of information about the company that is not publicly available and
that has the potential to influence the share price of that company engages in insider trading when
they profit from buying or selling shares in the company before the information becomes publicly
available.
•• Industrial espionage — the acquisition of confidential information about a competitor or their
products or methods without their permission is industrial espionage. For example, an employee
who sells confidential information about their employer to a competitor engages in industrial
espionage.
•• Money laundering — converting the proceeds of criminal activities into legitimate funds or property
is money laundering.
White collar crime and metadata: beware of building a new honeypot
With the struggle by law enforcement agencies to keep pace with new technologies has come calls by
the agencies for additional investigatory powers.
The call for communications service providers to retain two years of their customers’ metadata
is simply the latest round in this debate. While much of the current discussion has centred on con-
sumer data and policing agencies, the proposal also covers the communications of businesses,
and the Australian Securities and Investments Commission (ASIC) is one of the agencies seeking
access.
Analysing two years’ retained metadata about your communications would give any law enforcement
agency enormous insight into your life and, potentially, leverage over you. Using the data they could
easily identify completely legal but otherwise embarrassing confidential events in your life, such as
whether you have, for example, had an affair, an abortion, called a suicide help-line, a brothel or alco-
holics anonymous.
Having the power to analyse two years’ retained metadata about a business’ communications cre-
ates different risks: for example, knowing whether the senior executives of a listed company are talking
often with a bankruptcy advisory firm or an investment bank’s mergers/acquisitions team could create
enormously valuable trading opportunities prior to the release of that information to investors and the
general public.
The benefits of granting additional powers designed to increase the efficiency of law enforcement
agencies need to be balanced against a range of risks, including the need to protect civil liberties and
the possibility of unintended consequences.

What ASIC wants
The government’s current plan for data retention law includes provisions which would limit which law
enforcement agencies could gain warrantless access to the retained metadata. In its submission to the
Parliamentary Joint Committee for Intelligence and Security Inquiry into Data Retention, ASIC argued
the proposed Bill would reduce its existing powers to access telecommunications data and stored com-
munications for the purposes of investigating white collar criminal activities, such as insider trading,
market manipulation and financial services fraud.
Over the last five years, ASIC has secured convictions against 129 people for serious offences under
the Corporations Act (including sentences of more than 13 years’ incarceration in some instances)
and 2404 people for less serious offences, though it did not specify how many of these convictions
depended upon evidence gained from metadata.
ASIC currently has access to telecommunications data under sections 178–179 of the Telecommuni-
cations Interception Act. It claims it has used that information in over 80% of its insider trading investi-
gations, including in the Lucas Kamay (NAB) and Christopher Hill (ABS) case.
ASIC uses a variety of techniques to investigate white collar crimes, including data analytics of trading
patterns. It also receives reports of suspicious trading activities from industry participants and the gen-
eral public.
Metadata is particularly useful for ASIC when seeking to identify potential suspects (and their accom-
plices) and their methods/patterns of communication, so that further surveillance of ongoing behaviour
can be undertaken. While metadata itself does not definitively prove the identity of who was talking on
a particular phone, typing a text message or sitting behind a keyboard, it can suggest who was most
likely to have been doing those things (i.e. in many cases, the registered owner of the account). The
actual identities of the participants can then be confirmed through follow-up surveillance.
Metadata can provide information on the methods that two or more people are using to commu-
nicate (whether by landline, mobile phone, SMS, Skype, etc.). It can also provide a rich history of
both patterns of communication (which devices are in contact with which other devices, when and
how often) and interruptions to such patterns of communication, such as ceasing to communicate
by mobile phone or changing phone SIMs, which could indicate the suspects believe they are under
surveillance.
In some trials, evidence of the timing of communications can be critically important. For example,
when NAB trader Lukas Kamay received confidential information from Christopher Hill about yet-to-be-
released Australian Bureau of Statistics’ data, Kamay was able to profit by placing leveraged foreign
exchange trades on the value of the Australian dollar. ASIC only became aware of this activity after it
was tipped off by Kamay’s forex brokerage firm, Pepperstone Financial, and while access to metadata
played a small part in the investigation, it was traditional surveillance which resulted in the convictions
of Kamay and Hill.
Access to retained metadata would grant ASIC the ability to search the history of patterns of conduct
between suspects, such as whether they were repeatedly communicating and trading just prior to the
announcement of market-sensitive information, even in situations where ASIC only became aware of the
possibility of illegal activities well after they had actually occurred. It may also assist them to identify
additional co-conspirators.
A new honeypot?
To be able to undertake such analysis, ASIC would need metadata to be retained from businesses as
well as from individuals. Under the Bill, such metadata would be stored by communications providers,
such as mobile phone companies and ISPs. This poses a risk for some businesses as their communi-
cations metadata contains highly valuable confidential information.
In its drive to increase the effectiveness of its fight against white collar crimes, it is possible ASIC and
the government may unintentionally increase the risk of such crimes occurring while also making them
harder to detect.
Communications service providers forced by the proposed legislation to store metadata are likely to
provide security sufficient to protect against unauthorised access based upon the risk profile of their
average customer, rather than for their most-at-risk customers. This raises the possibility of third parties
seeking to gain unauthorised access to businesses’ financially sensitive information through their
retained metadata, whether third party hackers using zero-day exploits, or trusted public servants (like
Hill) looking to supplement their government pay cheques.

Insider trading and market manipulation may become harder to detect because third party hackers
will no longer need to directly attack listed companies and their advisers, but instead could indirectly
gain information by attacking metadata repositories. If a communications service provider pooled all
of its customers’ metadata into a single database, then this may represent the equivalent of an inade-
quately secured goldmine for white collar criminals.
We should not rush to implement a system of metadata retention before all of the costs and benefits
of such a proposal are fully considered.
Source: John Selby, 27 February 2015, http://theconversation.com/white-collar-crime-and-metadata-beware-of-building-a-
new-honeypot-37891.
Cybercrime
A cybercrime is a crime where a computer is used as a tool to commit an offence, or as a target of an
offence, or as a storage device in relation to an offence. The Criminal Code Act 1995 (Cth) contains com-
puter offences designed to address forms of cybercrime that impair the security, integrity and reliability of
computer data and electronic communications. TheAct provides for three serious computer offences.
1. Unauthorised access, modification or impairment with intent to commit a serious offence.54
The
maximum penalty is equal to the maximum penalty for the serious offence. For example, a person who
hacks into a bank computer and accesses credit card details with the intention of using them to obtain
money will be liable for the penalty applying to the fraud offence the person was intending to commit.
2. Unauthorised modification of data, where the person is reckless as to whether or not the modification will
impair data.55
For example, a hacker obtains unauthorised access to a computer system and impairs data.
3. Unauthorised impairment of electronic communications.56
This offence is designed to prohibit tactics
such as ‘denial of service attacks’.
54 Criminal Code 1995 (Cth) s 477.1.

The Act also provides for four other computer offences:
1. unauthorised access to, or modification of, restricted data,57
2. unauthorised impairment of data held on a computer disk etc,58
3. possession or control of data with intent to commit a computer offence, and 59
4. producing, supplying or obtaining data with intent to commit a computer offence.60
Other criminal penalty provisions
There are many other statutes that impose criminal penalties for conduct that causes financial harm to
another. Some examples are as follows.
•• The Competition and Consumer Act 2010 (Cth) imposes substantial fines if a person intentionally
breaches the consumer protection provisions or the competition provisions of the Act.
•• The Privacy Act 1988 (Cth) imposes fines if a person misuses credit reporting information or the per-
sonal information of individuals.
•• The Corporations Act 2001 (Cth) imposes fines and/or prison terms if a person breaches their duties
to the company as a company director.
•• If a person has been declared bankrupt, the Bankruptcy Act 1966 (Cth) imposes a penalty of impris-
onment if they attempt to defraud creditors by fraudulently concealing property, disposing of property,
leaving the country or failing to cooperate with the trustee in bankruptcy.
The tort of deceit
If a person makes a false statement during contractual negotiations to induce the plaintiff to enter into a
contract, they make what is called a misrepresentation. If the misrepresentation is fraudulent (i.e. delib-
erate), the person commits the tort of deceit. This will entitle the plaintiff to damages under tort law, as
well as possible remedies under contract law.
CHECKLIST
The tort of deceit is committed by X if all of the following requirements are satisfied.
◼◼ X makes a statement of fact to Y knowing that it is false.
◼◼ X makes the statement with the intention that it be relied upon by Y.
◼◼ Y relies upon the statement.
◼◼ Y suffers harm as a result of relying upon the statement.
A statement of opinion is not a statement of fact, and a person who shares an opinion that later turns
out to be wrong has not committed the tort of deceit. However, if a person shares an opinion that they do
not in fact hold, then they have made a false statement of fact and therefore committed the tort of deceit.
Bisset v Wilkinson [1927] AC 177
Wilkinson agreed to sell two adjoining blocks of rural land to Bisset. During negotiations Wilkinson stated that
he believed the land could hold 2000 sheep, if cultivated and used correctly. After purchasing the land Bisset
discovered the land could not hold 2000 sheep. Bisset sued Wilkinson in the tort of deceit. The court decided
that Wilkinson was not liable. He had made a statement of opinion and not a statement of fact. It was an
opinion honestly and reasonably held; as Bisset was aware, the land had never been used for sheep farming
in the past.
Misrepresentation and deceit are considered in more detail in later chapters.

The tort of passing off
A person commits the tort of passing off if they misrepresent themselves or their product as having
some kind of connection with the plaintiff or their business. For example, if Johnny uses Simon’s trade-
mark, distinctive packaging, name or likeness without Simon’s permission in order to sell Johnny’s own
product, Johnny commits the tort of passing off.
CHECKLIST
The tort of passing off is committed by X if all of the following requirements are satisfied.
◼◼ X makes a misrepresentation (expressly or by implication) that their goods or services are connected
with Y or have Y’s endorsement or approval.
◼◼ The misrepresentation is made in the course of a trade.
◼◼ The misrepresentation is intended to deceive potential purchasers.
Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553
Pacific Dunlop Ltd (PD) produced a television advertisement for Dunlop shoes based on a scene from
the movie Crocodile Dundee. An actor dressed like the main character from that film is shown being
confronted by a mugger in an alley while walking with his girlfriend. The girlfriend warns the actor that
the mugger is wearing leather shoes, to which the actor responds ‘You call those leather shoes? Now
these are leather shoes’, and points to his Dunlop shoes. Hogan, the actor and owner of the Crocodile
Dundee character, brought a civil action against PD. The court decided that PD had committed the tort of
passing off: the advertisement amounted to an assertion that Hogan and PD had entered into a commer-
cial arrangement for the use of the Crocodile Dundee character.
In the absence of a misrepresentation the tort of passing off is not committed.
Newton-John v Scholl-Plough (Aust) Ltd (1986) 11 FCR 233
Scholl-Plough Australia Ltd was the manufacturer of Maybelline products and ran a magazine advertise-
ment that featured a model that looked like Olivia Newton-John. Below the picture of the model appeared
the words ‘Olivia? No, Maybelline’ . Olivia Newton-John claimed that Scholl-Plough Australia Ltd had com-
mitted the tort of passing off. The court decided that Scholl-Plough Australia Ltd had not committed the tort
of passing off because there was no misrepresentation: the advertisement made it clear that the picture was
not of the plaintiff.
There is an overlap between the tort of passing off and statutory liability for breach of s 18 of the
ACL, which prohibits misleading and deceptive conduct.
The tort of intimidation
A person commits the tort of intimidation if they threaten to commit an unlawful act (including a tort
or a breach of contract) in order to force the plaintiff to do something against their interest, or to force a
third party to do harm to the plaintiff. Intimidation is both a tort and a crime.
CHECKLIST
The tort of intimidation is committed by X if all of the following requirements are satisfied.
◼◼ X threatens to commit an unlawful act such as a crime, a tort or a breach of contract.
◼◼ The threat is made in order to force Y to do something against their interest or to force someone else
to do harm to Y.

Rookes v Barnard [No 1] [1964] AC 1129
The plaintiff resigned from the defendant’s union. The union threatened the plaintiff’s employer with an
unlawful strike if he did not dismiss the plaintiff. The employer dismissed the plaintiff and the plaintiff com-
menced legal proceedings against the union. The court decided that the union had coerced the employer
into doing something he would not otherwise have done by threatening to commit an unlawful act, which
breached the contract between the union and the employer. This amounted to the tort of intimidation.
The tort of interference with contractual relations
This tort is committed when one person knowingly induces another to break a contract with a third party.
For example, if Matt has a contract with Simon, and Johnny knowingly induces Matt to break the contract,
Johnny commits the tort of interference with contractual relations and he will be liable to Simon.
CHECKLIST
The tort of interference with contractual relations is committed by X if all of the following requirements
are satisfied.
◼◼ X makes a statement or takes an action intended to induce another person to breach a contract with Y.
◼◼ X’s statement or action in fact induces that person to breach the contract.
◼◼ Y suffers harm as a result of the breach.
Lumley v Wagner (1852) 1 De G M & G 604; 42 ER 687
Wagner, a well-known opera star, entered into a contract with Lumley to perform at Lumley’s theatre, and
agreed not to perform elsewhere during the contracted period. Gye then convinced Wagner to enter into a
contract to perform at another venue over the same period as the contract with Lumley. The court decided
that Gye’s actions in inducing Wagner to break her contract with Lumley amounted to the tort of interfer-
ence with contractual relations.
In the example described above concerning Matt, Simon and Johnny, if Johnny was not acting alone
Simon may also be able to bring an action against Johnny under the secondary boycott provisions of
Part IV of the Competition and Consumer Act 2010 (Cth). These provisions make it an offence for two
or more businesses to pressure a third business to refuse to deal with a fourth business leading to a sub-
stantial lessening of competition.
REVISION QUESTIONS
5.33 What is ‘white-collar crime’?
5.34 Using illustrative examples to explain each of your answers, what is (a) theft; (b) embezzlement;
(c) bribery; (d) insider trading; (e) industrial espionage; and (f) money laundering?
5.35 What is cybercrime? Give some examples.
5.36 What are some other sources of criminal liability for financial harm?
5.37 What is the tort of deceit?
5.38 What is the tort of passing off?
5.39 What must a plaintiff establish to successfully bring an action in passing off?
5.40 What is the tort of intimidation?
5.41 What is the tort of interference with contractual relations?

5.4 The consequences of causing harm
LEARNING OBJECTIVE 5.4 What are the civil consequences of being found to have caused harm? What
are the criminal consequences?
In this section we consider the criminal and civil consequences of a court finding that one person has
caused harm to another person.
Criminal consequences
Generally speaking, the objectives of criminal law are:
•• punishment,
•• deterrence,
•• incapacitation, and
•• rehabilitation.
The criminal law seeks to achieve these objectives through the imposition of penalties upon the finding
of guilt at a criminal trial. Criminal penalties range in severity, and include:
•• warnings,
•• fines,
•• imprisonment, and
•• the confiscation of criminal profits.
Fines are by far the most common criminal penalty, and range from nominal penalties
to penalties as high as $10 million for breaches of Part IV of the Competition and Consumer Act
2010 (Cth).
What are the issues that a judge must confront when deciding upon a criminal penalty for a corporation
rather than an individual?
Civil consequences
If in a civil action the court finds that the defendant has committed one of the torts described in this
chapter (or the next), the plaintiff will be entitled to a range of possible remedies.
Damages
Damages is an award of monetary compensation to the plaintiff. There are several forms of damages
that the court can award.
•• Ordinary damages — the purpose of an award of ordinary damages is to compensate the plaintiff
for the loss or injury suffered as a result of the defendant’s harmful conduct. The objective is to return
the plaintiff to the position they would have occupied if the defendant’s conduct had not taken place.61
Damages are assessed ‘once and for all’: the plaintiff is not able to return to court at a later date
seeking further compensation, and it is therefore necessary to estimate any future losses the plaintiff
may incur as a consequence of the harmful conduct.
If the plaintiff’s property has been destroyed or damaged then the amount of compensation will be the
cost of replacing or repairing the property. If the plaintiff has suffered personal injury then the amount
of compensation will include:
–– reimbursement of medical expenses,
–– rehabilitation expenses,
61 Todorovic v Waller (1981) 150 CLR 402.

–– the cost of personal care,
–– compensation for pain and suffering,
–– compensation for loss of amenities, and
–– reimbursement for any lost income.
If the injury is such that it will affect the plaintiff’s future earning capability then the damages award
will include compensation for loss of future earnings. An award of damages following serious personal
injury can therefore be substantial.
Fishing skipper wins $750 000 damages from former employer
In August 2009 a fishing skipper was awarded $750 000 in damages from his former employer after his
left hand was mangled in a boating accident.
Glenn Hunter, 49, sued New Fishing Australia Pty Ltd after his left hand was crushed between a
winch and a rope in a boating accident in October 2001. Justice Keiran Cullinane in the Townsville
Supreme Court awarded Mr Hunter $751 668.05 in damages for loss of income in past employment,
future employment, pain killers, surgery costs and financial assistance for ‘mowing a lawn’.
Mr Hunter left school at age 16 to become a prawn fisherman, and spent until March 2005 in the
fishing industry. Despite no qualifications in any other area, he was earning a gross annual income of
about $140 000.
Mr Hunter’s accident occurred in the Gulf of Carpentaria in Northern Territory waters when he
was holding a rope on a winch that was held there by a cleat. The winch was stopped but began to
move and as it rotated the plaintiff’s left hand became crushed between the winch and the rope. The
injury required Mr Hunter to have his left index finger amputated, while other fingers required
surgery.
The court suggested easier occupations Mr Hunter may be able to take up until he was 67 years old,
such as a car park attendant or storeman, and used the average wage of those jobs to calculate the
damages payable. However Justice Cullinane said he doubted that a man of Mr Hunter’s ‘enterprise’
would ever be satisfied in such roles. ‘Overall he has lost the capacity to engage in the only work that
he has for all intents and purposes ever engaged in,’ he said. The fact is he is now 49 years old and
has no other qualifications. He must be regarded as having a substantial destruction of his earning
capacity.
Source: David Barbeler, ‘Fishing skipper wins $750 000 damages from former employer,’ AAP, 25 August 2009.
•• Nominal damages — if the plaintiff has successfully established that the defendant has breached a
legal right but the plaintiff has suffered no compensable damage, then nominal damages will be
awarded. For example, Simon may have established that Johnny committed the tort of trespass by
walking across Simon’s lawn, but since Simon has not suffered any actual harm the court might award
nominal damages in the amount of $1.00.
•• Aggravated damages — if the defendant’s conduct is such that the plaintiff should be compensated for
humiliation and emotional distress, then aggravated damages will be awarded. Aggravated damages
are more likely to be awarded in respect of actions such as defamation or sexual assault.
•• Exemplary damages — if the defendant has deliberately and maliciously disregarded the plaintiff’s
rights and interests, then exemplary damages will be awarded. They are more than mere compen-
sation; they are intended to punish the defendant and to act as a deterrent.
The civil liability legislation in some jurisdictions now prohibits a court awarding aggravated or exem-
plary damages in negligence actions.62
62 Civil Liability Act 2002 (NSW) 21; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19; Civil Liability Act 2003
(Qld) s 52.

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