SOUTH AUSTRALIA. Tort-Conspiracy Seamen " picked up" or selected for employment-Other seamen
induced not to work with them-Whether "picking-up" amounted to a contract of employment-Whether refusal to work with selected men constituted a strike and was unlawful-Meaning of "strike "--Whether refusal to work was to further men's own interests or to injure others-Industrial Code 1920 (S.A.) (No. 1453), secs. 5, 100,
The plaintiffs were members, but unfinancial members, of the Federated Seamen's Union, which was formerly registered under the Commonwealth Conciliation and Arbitration Act, and the defendant was the secretary of that Union at Port Adelaide. The plaintiffs were desirous that the Union should again become registered under that Act and refused to pay the contributions required by its rules until it again became a registered body. Further. the plaintiffs promoted or at least joined another body known as the Australian Seamen's Union, which attempted to register itself under that Act. About January of 1929 the Adelaide Branch of the Seamen's Union resolved that members of that Union should refuse to sail with members who refused to pay their contributions. In May 1929 the Adelaide Steamship Co. "picked up or selected the plaintiffs for engagement as greasers on the m.s. Manunda. The defendant then said in substance to the officer who had " "picked up' or selected them :- You can't sign them on. They are unfinancial. If you take these two men, the other crowd won't sign on." The representatives of the shipping company were prepared to allow the plaintiffs to sign the ship's articles, but after communication with the shipping company's head office the picking-up officer asked the six men who had been picked up with the plaintiffs whether they would sail if the plaintiffs signed on. The defendant
repeated these words to the men who ultimately refused to sail with the plain- tiffs. The shipping company then refused to sign on the plaintiffs. In an action for damages brought by the plaintiffs against the defendant for inducing the master and owners of the ship to break their contracts with the plaintiffs, alternatively for maliciously coercing the master and owners of the ship not to enter into contracts with the plaintiffs, and alternatively for conspiracy to injure the plaintiffs, the Special Magistrate found that the real reason of the animus against the plaintiffs was that they were active in trying to get a rival union registered, and he gave judgment for the plaintiffs. The Full Court of South Australia upheld this decision. On appeal to the High Court,
Held, by Rich, Dixon, Evatt and McTiernan JJ. (Gavan Duffy C.J. and Starke J. dissenting), that judgment should have been given for the defendant.
By Rich, Dixon and McTiernan JJ. :-(1) The "picking-up" or selection of the plaintiffs was merely preliminary to a contract and did not itself amount to a contract; therefore, no contractual relations were established between the plaintiffs and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
McKernan v Fraser [1931] HCA 54
Case
[1931] HCA 54
Decision Date
CaseChat Overview and Summary
The plaintiffs, Leon Fraser and John Stapleton, brought an action against the defendant, Peter McKernan, the secretary of the Federated Seamen's Union at Port Adelaide. The dispute arose when the Adelaide Steamship Co. selected the plaintiffs for engagement as greasers on the m.s. Manunda. McKernan intervened, stating the plaintiffs were unfinancial and that other seamen would refuse to work with them if they were signed on. Subsequently, the shipping company refused to engage the plaintiffs. The plaintiffs sued McKernan for inducing breach of contract, alternatively for maliciously coercing the company not to enter into contracts, and alternatively for conspiracy to injure. The Special Magistrate found for the plaintiffs, a decision upheld by the Full Court of South Australia. The matter proceeded to the High Court of Australia.
The High Court was required to determine several legal issues. Firstly, whether the "picking-up" or selection of the plaintiffs constituted a binding contract of employment, and if so, whether McKernan had induced its breach. Secondly, whether the refusal of other seamen to work with the plaintiffs constituted an unlawful strike under the South Australian Industrial Code 1920. Thirdly, whether the actions of McKernan and other union members amounted to an unlawful conspiracy to injure the plaintiffs.
A majority of the High Court (Rich, Dixon, Evatt, and McTiernan JJ.) held that the judgment should have been for the defendant. Their reasoning was that the "picking-up" was merely preliminary to a contract and did not establish contractual relations, thus no breach of contract was procured. Furthermore, the refusal to work did not fall within the definition of a "strike" under the Industrial Code, as it involved refusing to enter into new employment rather than ceasing existing work. Regarding conspiracy, the court found that for such a claim to succeed, the sole or dominating purpose must be to harm the plaintiff, not merely to advance the defendants' own trade or vocational interests. In this case, the union's actions were motivated by a desire to benefit themselves and advance their interests, not solely to injure the plaintiffs.
Consequently, the High Court allowed the appeal, setting aside the judgment of the Supreme Court of South Australia and ordering that judgment be entered for the defendant.