Introduction
The idea of intimidation in a business context is concerning to any business owner. It’s not common, but when it occurs there is more than money at stake. Intimidating conduct can have a serious personal toll. That is why the law is positioned to intervene when intimidating conduct arises in the course of commercial dealings. But the specific manner in which the law intervenes to address intimidation varies. Generally, you could expect the law to provide a criminal, or civil avenue of relief against intimidation.
If you are confident that the intimidating conduct with which you’re faced amounts to a crime, you can refer it to the police. However, if you wish to pursue civil action against a person, group, or company responsible for intimidating conduct, you have options. Most significantly, you can sue for the tort of intimidation. But before doing so, there are some things to consider. The tort of intimidation is rarely litigated, and, like all torts, it can be challenging to establish.
Torts and Crimes are Different: Here’s How to Classify Business Intimidation
It is important to acknowledge the difference between criminal law and torts. Criminal cases are brought to bear by the State, in most cases. That is why criminal intimidation ought to be referred to police. Actions in tort, on the other hand, are initiated by those who are affected by tortious behaviour. Intimidation involving a demand, and a threat of unlawful action, can fall within that ambit.
The tort of intimidation is a little different to what you might think – here’s why
Establishing tortious intimidation is not simply a matter of proving that one party engaged in intimidating conduct. To classify as intimidation, in a tortious sense, that conduct must take one of several forms. The nature of those forms is seeded in English civil law, which continues to influence its application in Australia today. For example, it was in England that courts initially held that the tort of intimidation needn’t involve a threat of violence or property damage.[1] From that decision, in 1964, the tort of intimidation, as we know it today, was born.
Although intimidation, as a tort, has not been conclusively decided by the Australian High Court, appellant courts in Victoria and New South Wales have outlined a workable notion of what it entails. Currently, according to those courts, the tort of intimidation involves three elements:
- A demand, combined with a threat; where
- The threat made is one to commit an unlawful act; and
- The demand is complied with, as a result of which the Plaintiff sustains loss
Intimidating conduct in a business setting can amount to both a crime and a tort
The elements above describe intimidation as involving a threat to commit an unlawful act. Although that might seem like a crime, it is not necessarily. The distinction, there, is made by virtue of the term ‘unlawful.’ That term does not necessarily mean criminal; it can just as easily refer to a breach of provisions in corporations or employment law. However, the threat of an unlawful act could still be criminal. For example, if the threat accompanying a demand is a threat of violence or property damage, the intimidating conduct is clearly criminal. It may amount to such offences as extortion or blackmail. That is where police intervention is advisable. Nevertheless, if the requisite elements of tortious intimidation are met, police intervention does not always preclude an action in tort. It is complicated to discern an appropriate course of action, though, so legal advice is important.
The Tort of Intimidation is Rarely Litigated, so Some Points Remain Contentious
Earlier, it was mentioned that the High Court has not yet ruled on the tort of intimidation in Australia. That is important, notably, because it means there is not an established, nationwide approach to applying the tort of intimidation. In fact, there has been, in the past, speculation as to whether the tort itself exists in Australia. That speculation was seemingly put to rest by the NSW Court of Appeal, which recognised strong authority in support of the proposition that there is a definable tort of intimidation in Australia.[2] Still, there remains the final avenue of appeal in the High Court, which could adopt a far different position.
A battle of interpretation: is intimidation a freestanding tort, or part of a wider tort of interference?
One of the major sources of contention surrounding the tort of intimidation, is whether or not it is simply part of a broader tort. Specifically, the notion has been presented that the tort of intimidation is a form of interference with contractual and other relations. Indeed, that was the view of the English courts in a recent case.[3] There, it was decided that a number of freestanding torts should, in fact, be regarded as interference with business by unlawful means. Australian courts, though, seem reluctant to follow suite.
In Australia, there has been a shift towards establishing intimidation as a freestanding tort
Rather than emulating the English approach to tortious intimidation, Australian courts seem to have upheld its fortitude as an individual tort. Despite the absence of a High Court conclusion, the tort of intimidation has been successfully litigated in Australia. However, instances of such litigation have not been without their controversy. The high-profile case of Boral Resources (Vic) Pty Ltd v CFMEU demonstrates that clearly.[4] In that case, the argument was presented that the tort of intimidation had no basis in Australian law whatsoever. And while that argument was rejected, somewhat emphatically, it was, at the very least, congruent. The High Court’s reaction to such a case, and such an argument, can only be speculated at present. For the time being, though, intimidation in a business setting remains a freestanding tort. Accordingly, it can be litigated, and it can provide restitution to businesses affected by tortious intimidation.
[1] Rookes v Barnard [1964] AC 1129.
[2] Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760.
[3] OBG Limited v Allan [2008] 1 AC 1.
[4] [2014] VSC 429.
By Finian McGrath
Disclaimer
The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. Business people should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.
Liability limited by a scheme approved under professional standards legislation.
