Jennings v Jennings[2025] QDC 13

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant to strike out paragraphs of a statement of claim on the basis that there is no cause of action known as unlawful interference with a business recognised in Australian law.

2. [2]
   The defendant has not pleaded to the statement of claim and applied for leave to bring the application notwithstanding that fact. It is convenient that it did so, and leave was granted on theday of the hearing. It means that the court should proceed on the basis that the allegations made by the plaintiffs are true.

Pleaded Claim

3. [3]
   The first plaintiff and the defendant are sisters. In or about January/February 2020, it is alleged that the first plaintiff and the defendant orally agreed that the defendant would purchase a home for the plaintiff for which the first plaintiff would have a half interest. It is implicit that it was agreed that the house was to be in the name of the defendant. It is alleged that it was orally agreed that the two would pay one half each of the repayments on the home loan, council rates and water rates. It is alleged that the first plaintiff would renovate the property at her own expense initially, with the defendant paying her half share at the end of each financial year, and that the first plaintiff would be paid for her labour in respect of any renovations when the house was sold. Further, it is alleged that all decisions regarding the new property were to be made in consultation with each other.
4. [4]
   It is alleged that the defendant purchased the house on 3 April 2020 and that subsequently on 25 April 2020 it was agreed that, as the first plaintiff occupied the property solely,she would pay rent. It is alleged that the firstplaintiff subsequently, as agreed, contributed to the maintenance and renovations of the property; both in the form of payment for those expenses and her own labour.
5. [5]
   It is alleged that on 7 October 2024 the defendant entered the property and changed thelocks, thereby excluding the first plaintiff from the property. It is alleged that the exclusion of the first plaintiff was wrongful. It is alleged that it was unconscionable for the defendant to resile from the agreement that the first plaintiff would have a half beneficial interest and that thedefendant was estopped from denying that interest. In the alternative, it is alleged that it was unconscionable for the defendant to deny the contributions of the first plaintiff. The relief claimed was a declaration of a constructive trust in favour of the first plaintiff. On 27 September 2024 the first plaintiff registered a caveat with the Queensland Title Registry claiming a constructive trust.

6. [6]
   The first plaintiff conducted a business through the second plaintiff which had its principal place of business at the property. The defendant knew of that fact.It is alleged the defendant had worked for the second plaintiff for a period.
7. [7]
   In the statement of claim filed with the claim on 31 October 2024, the plaintiffs baldly pleaded that the second plaintiff suffered loss and damage due to the wrongful exclusionof the first plaintiff by the defendant and sought damages as a consequence.
8. [8]
   By letter dated 10 November 2024, the solicitors for the defendant raised a complaint about the plea. On 20 November 2024 the plaintiffs filed and served an amended statement of claim in which it was alleged that the loss and damage suffered by the second plaintiff was from the “unlawful interference to its business” caused by the wrongful exclusion of the first plaintiff. The plaintiffs also gave notice by email on that date of an intention to file an amended claim by adding the words “for the unlawful interference by the defendant to its business” to the claim for damages by the second plaintiff.

Present authorities on the cause of action

9. [9]
   In support of her application, the defendant principally relies upon statements made by members of the Court of Appeal in Queensland in Deepcliffe P/L & Anor v The Council of the CityoftheGoldCoast&Anor.^[1] In that case, the plaintiffs (as the owner and operator of a large restaurant on the Gold Coast) sued the Gold Coast City Council^[2] for damages arising out of the loss of its trade following the erection by council employees of parking signs restricting parking in certain nearby streets to initiallyone hour between 6pm and midnight, Monday to Friday.^[3] Restaurantpatrons were fined if they parked in excess of these restrictions.
10. [10]
    The claims by the plaintiffs were brought in nuisance, misfeasance in public office, interference with business by unlawful means and negligence. The learned primary judge rejected all four claims of damage and gave judgement for the respondents.

11. [11]
    The primary judge held that the installation of the parking signs (after considering certain statutory provisions and by-laws and regulations of the council) was without authorisation. The judge held that this made the erection of the signs not a lawful act of the Council but added this did not make the erection of the signs by the Council forbidden by law.
12. [12]
    The primary judge also found that the Council did not intend to damage the plaintiffs’ business by the enforcement of the regulated parking scheme.
13. [13]
    Having found that the act was not unlawful in the sense that it was prohibited, and that there was no intention to damage the plaintiffs’ business, the primary judge dismissed the claim based upon interference with business by unlawful means. The Court of Appeal upheld that decision on the facts. During the course of giving their separate reasons, both McMurdo P and Williams JA gave consideration to whether the tort was recognised in Australia. The third judge, Helman J, said he agreed with both judgments.
14. [14]
    In their reasons, both McMurdo P and Williams JA referred to two decisions of the High Court of Australia: Northern Territory of Australia and Others v Mengel and Others^[4] and Sanders v Snell.^[5] In both decisions, the High Court referred to the emergence in the United Kingdom of a tort of interference with trade or business interests by an unlawful act directed at the persons injured.^[6]
15. [15]
    McMurdo P stated that the tort had not been widely embraced in Australia but noted that its existence had been judicially acknowledged in a number of cases. McMurdo P noted thatthe High Court in Mengel had overturned an earlier decision of that court^[7] where, independently of trespass, negligence or nuisance, a person who suffered harm or loss asthe inevitable consequence of the unlawful, intentional and positive acts of another was heldentitled to recover damages from that other in an action for damages upon the case.In overturning Beaudesert, MasonCJ, Dawson, Toohey, Gaudron and McHugh JJ in Mengel noted that the emerging tort of interference with business by unlawful means “requires that the unlawful act be directed to the person injured” and “does not extend to all unlawful acts and that, at least in that regard, it is in need of further definition.”^[8]

16. [16]
    The reasoning of the court in Sanders followed that of the court in Mengel; albeitthat the High Court in Sanders stated that they did not think it was necessary to decide whether the tort should be recognised in Australia.
17. [17]
    In referring to the decision of the High Court in Mengel, GleesonCJ, Gaurdron, Kirby and Hayne JJ observed in Sanders:

“The majority judgment in Mengel noted that it seemed that the “embryonic or emerging tort” of interference with trade or businessinterests by an unlawfulact does not extend to all unlawful acts and “at least in that regard, it is in need of further definition”. Their rejection of Beaudesert is, however, consistent with confining what is an unlawful act for the purpose of this tort (if, that is, the tort is to be recognised in this country). It is also consistent with (or at least not inconsistent with) excluding from the definition of what is an unlawful act for this purpose acts whose only “unlawful” aspect is that they are unauthorised in the sense that they are ultra vires and void.

The guidance from authority is necessarily uncertain at the moment; the tort is embryonic and emerging.”^[9]

18. [18]
    In Sanders, afterdetailing the conduct engaged in by the public official, and in finding that the respondenthad not made out a case of interference with his trade of business by unlawful means, Gleeson CJ, Gaurdron, Kirby and Hayne JJ commented that:

“There is no pressingnecessity to create a new form of tortiousliability to compensate the respondent for the loss of that hope or expectation.Existing forms of liability,for negligence and for misfeasance in public office, provide adequate constraints on public officials and adequate avenues for compensation to those who suffer wrong.”^[10]

19. [19]
    In the light of the reasoning of the High Court in both cases, Williams JA specifically held that it was not for theCourt of Appeal to hold that the tort existed in Australian law.^[11] McMurdo P accepted for thepurposes of the appeal that the tort is recognised in Australia but held that it was not made out in that case.
20. [20]
    McMurdo P, in so proceeding, made the following statements:

“Accepting for present purposes that the tort is recognised in Australia, it seems to me that three relevant principles emerge from these passages. First, any tort of interference with business by unlawful means requires the doing of an unlawful act in the sense that the act is forbidden by law; such an act is not an act which is unauthorisedonly in the sense that it is ultra vires and void.Second, the tort requires an intentional act calculated in the ordinary course to cause harm. Third, the tort is not made out where the actions complained of are done in the exerciseof public office affecting public not private interests so that any actionable tort will be by way of the tort of misfeasance in public office, or, in appropriate cases, negligence.

It is significant that none of the cases where the emerging tort has been considered involved a public authority or holder of public office but rather involved commercial business dealings or union activities.It is also noteworthythat the tort does not seem to have been successfully established in Australia since the High Court’s failure to embrace its incorporation into the law of torts in this country in Sanders v Snell.”^[12]

21. [21]
    The existence of the cause of action came for further consideration by Moore J of the Federal Court of Australia in Qantas Airways Ltd v Transport Workers’ Union of Australia and Others.^[13] In the course of his consideration, he referred to and discussed at length the High Court decisions in Mengel and Sanders. He asked himself the question:

“What then should a trial judge to do in relation to a tort which has been said by the High Court to be “embryonic or emerging” and where,subsequently, an intermediate court of appeal has refrained from declaring it is part of the common law of Australia.”^[14]

22. [22]
    In the end, his Honour considered that “it would be inappropriate for me to take the step of deciding the tort exists in the face of the decision of the Court of Appeal of Queensland.”^[15]
23. [23]
    McDougall J of the Supreme Court of New South Wales in BallardvMultiplex^[16] and Siopis J of the Federal Court of Australia in Nyoni v Shire of Kellerberrin (No 2)^[17] followed the reasoning of Moore J. In referring to McMurdo P in Deepcliffe and her approach of “accepting for present purposes that the tort is recognised in Australia,” McDougall J commented, “I do not understand her Honour to have decided it is, or should be.”^[18] Siopis J, having concluded that the tort did not exist, ordered that the relevant paragraphs of the statement of claim be struck.

24. [24]
    Kenny J in Polar Aviation v Civil Aviation Safety Authority (No 4)^[19] in the Federal Court of Australia, applying Sanders, adopted a similar position; refusing liberty to re-plead and giving judgment for the defendant.
25. [25]
    A different approach was taken by Pritchard J of the Supreme Court of Western Australiain HardieFinance CorporationPtyLtdvAhern(No3).^[20] Despiteconcerns aboutwhether there was recognition of the tort in Australia, her Honour said she was persuaded that the tort should now be accepted as part of Australian common law.^[21] That decision, without much development, was more recently followed by another judge of that court, albeit for the purposes of deciding whether to grant an interlocutory injunction.^[22]
26. [26]
    In an earlier decision in the Supreme Court of the Australian Capital Territory in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd,^[23] Refshauge J on an interlocutory applicationwas not prepared to prevent the plaintiff from arguing its case thatthe tort existed in Australia and concluded that, while the present pleading could not stand, the cause of action properly reformulated should be allowed to be raised by a proper pleading. The judge did so noting the reserve expressed by the High Court but referring to, what he described as strong statements in single judge decisions which had recognised the cause of action, though acknowledging that the cases to which he was referring were prior to the High Court decision in Sanders.^[24]
27. [27]
    In a more recent decision, Gordon J, then of the Supreme Court of Victoria, in Sheridan&OrsvAustralian PacificAirports (Melbourne)PtyLtd,^[25] after noting that it remained unclearwhether a broad tort of unlawful interference in trade or business exists in Australia,said she was prepared to assume, for the purposes of her decision, that it did exist but held that it had not been made out.^[26]

Summary of legal position

28. [28]
    In summary, the High Court has explicitly not recognised the cause of action. The Court of Appeal in Queensland, by which I am bound, by majority has explicitly not recognised the cause of action. That approach was followed, albeit perhaps out of caution,by one judge of the New South Wales Supreme Court and three judges of the Federal Court of Australia. For similar reasons as those judges, I do not think it is appropriate for this court to recognise the cause of action.

Striking Out

29. [29]
    That leaves for decision whether the claim should be struck out. It is well accepted thatgreat care must be taken in summarily dismissing a claim.^[27] Onthe other hand, a pleading can and should be struck out when it does not disclose a reasonable cause of action.^[28]In The BeachClubPortDouglas Pty Ltd v Page,^[29] the Court of Appeal held that this requires consideration only “to the state of the law as it exists now, and not at some indeterminate future time when it may have evolved beyond present recognition.”^[30]
30. [30]
    The court in Nyoni took the view that given the state of the law such a claim should be struck out.^[31] A similar result occurred in Polar.^[32] In both cases, the court was following the reasoning of Moore J in Qantas Airways.^[33]
31. [31]
    On the other hand, in Canberra Data,^[34] Refshauge J did not consider that he should prevent the plaintiff pleading the cause of action.
32. [32]
    It may be that the Queensland Court of Appeal or the High Court will ultimately recognisethe cause of action, but given the Court of Appeal decision, by which I am bound, the appropriatecourse in my view is to adopt the approach of Moore J and not recognise the cause of action as part of the existing law of Australia.

33. [33]
    The inevitable result is that this claim must be struck out.

Defective Present Pleading

34. [34]
    Even if I had not reached that conclusion as a matter of law, the present pleading is clearlydefective. The defect is not cured by the clarification of the nature of the claim in the amended statement of claim.
35. [35]
    Although there is debate about the existence of the cause of action, in CanberraData the court stated that, if it existed, a pleading should contain the four elements referred to by the House of Lords in OBG Ltd v Allan.^[35] The elements were as follows:

1. "(1)
   a wrongful interference with the actions of a third party in which the applicant has an economic interest;

2. an intention on the respondent’spart thereby to cause loss to the applicant;
3. the acts of interference are actionable by the thirdparty as an interference with its freedom to deal with the applicant; and
4. loss or damage suffered by the applicant.”^[36]

36. [36]
    These elements were adopted by the courts in Polar^[37] and Yap.^[38]

37. [37]
    The High Court in Sanders^[39] and following it, McMurdo P in Deepcliffe,^[40] emphasised that the relevant act must be unlawful and directed at the persons injured; otherwise conduct of the most unremarkable kind would be tortious.
38. [38]
    Justice Gordon in Sheridan^[41] and McDougall J in Ballard^[42] also referred to the unlawful nature of any act and stated that there must be an intention to cause loss to the claimant.
39. [39]
    There is no articulation in the present amended statement of claim as to the unlawful act, or, if it be relevant, the wrongful act directed against the second plaintiff. The most that is alleged is that there was a wrongful exclusion of the first plaintiff from the home.The highest that this was put in submissions on behalf of the plaintiffs was that the wrongful act consisted of the defendant denying the first plaintiff’s equitable interest.

40. [40]
    No reference was made to intention in the pleading. In oral submissions, it was simply said by thesolicitor for the plaintiffs that the defendant, by excluding the first plaintiff affected the second plaintiff and their case was that the defendant must have caused harm by that exclusion.

Order

41. [41]
    The result is that paragraphs 16 to 20 and 22 (and paragraph 4 of the claim for relief) in the amended statement of claim, and paragraph 4 of the claim must be struck out.
42. [42]
    Further, leave must be refused to the plaintiffs to amend the claim in accordance with the application filed 2 December 2024.
43. [43]
    Costs on a standard basis of the defendant’s amended application filed 27 November 2024 and the plaintiffs’ application filed 2 December 2024 should follow the event. If either party wishes to contend otherwise the plaintiffs are to file submissions limitedto two pages by 3 March 2025, the defendant is to file submissions limited to two pages by6 March 2025 and, if the defendant seeks some other order, the plaintiffs may reply to those by 10 March 2025.
44. [44]
    I will make the order as to costs on 12 March 2025, unless there is a consent order as to costs filed before that date.