McKernan v Fraser

[1931] HCA 54

46 CLR 343

FRASER AND ANOTHER

RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF

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

46 CLR 344

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 the shipowners, and, consequently, no breach of such relations was procured by the defendant. (2) The defendant and the other members of the Union committed no actual or threatened violation of sec. 100 of the Industrial Code 1920 (No. 1453) of South Australia, which makes penal the doing of any act or thing in the nature of a strike, as what was done or threatened did not fall within the definition of a "strike" in sec. 5 of such Act, because in refusing to sign the articles or offer for or accept engagement, the men would be doing no more than refusing to begin a new employment: the word "strike" usually indicates a cessation or relinquishment of work, or at least the failure to resume work after a normal interruption or suspension; and in a penal provision the word "strike" ought not to receive an interpretation wide enough to include the concerted refusal of men to enter into a new employ. ment of long duration, even although that employment was offered according to a regular customary practice by which labour is habitually obtained and, consequently, illegal means were not actually adopted or threatened at the place of engagement. (3) For a combination or acts done in furtherance and the means are not unlawful and no threat of illegality is made in further- ance of the combination, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and this must have been the sole, the true, or the dominating or main purpose of their conspiracy it is not enough to adopt a course which necessarily interferes with the plaintiff in the exercise of his calling and thus injures him; nor is it enough that this result should be intended if the motive which actuated the defendants was not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests: and what actuated the conduct of the Union branch and of the defendant was to benefit themselves in obtaining employment, and, therefore, the cause of action in conspiracy was not established.

Sorrell v. Smith, (1925) A.C. 700, applied.

46 CLR 345

By Evatt J. :-(1) The circumstances of the case showed that all at the pick-up recognized that the "selection" was provisional, and that there was no binding agreement until the articles were signed there was therefore no inducement by the defendant of any breach of contract. (2) The action taken at the pick-up did not constitute a breach of sec. 100 of the South Aus- tralian Industrial Code 1920. (3) The combined action of the defendant and the unionists was taken in deliberate pursuance of a previous plan against the rival unionists, and for the express purpose of depriving the plaintiffs as members of the rival Union of their chance of employment. In spite of this, the cause of action based on "conspiracy to injure 11 failed on two distinct grounds, namely, (a) the injury thus sustained by the plaintiffs was not inflicted wantonly or out of any purely personal hatred or malevolence, although the unionists strongly disliked the policy of their rivals: (b) even if McKernan's own conduct was inspired by purely personal malevolence towards the plaintiffs, he was not liable for conspiracy unless the other parties to the agreement were also liable, and McKernan's personal malevolence was not imputable to such other parties. Dictum of McCardie J. in Pratt v. British Medical Association, (1919) I K.B. 244, at p. 279, dissented from.

Decision of Supreme Court of South Australia (Full Court) McKernan V. Fraser, (1930) S.A.S.R. 364, reversed.

APPEAL from the Supreme Court of South Australia.

Leon Fraser and John Stapleton brought this action in the Local Court at Port Adelaide against Peter McKernan, who was the secretary of the Seamen's Union there, alleging: (1) The plaintiffs are and were at the times hereinafter mentioned greasers and each had on 23rd May 1929 prior to the wrongful acts of the defendant hereinafter complained of entered into a contract with the master and/or owners of the motor-ship Manunda, then lying at Port Adelaide to serve on the said motor-ship as greasers for a period of six months at the monthly wage of £18 7s. 6d. (2) The defendant knowing that the said contract had been entered into as aforesaid maliciously and wrongfully and with intent to injure the plaintiffs procured and induced the said master and/or owners to break their said contracts and to refuse to perform the same and the said master and/or owners did by reason of such procurement and inducement break and refuse to perform such contracts whereby the plaintiffs respectively lost the benefit of the said contracts and suffered great damage and inconvenience. Alternatively, the defendant with the knowledge and in manner aforesaid procured and induced George

46 CLR 346

Eric Middleton a responsible officer of the said master and/or owners to dismiss the plaintiffs and break the said contracts. (3) Further and in the alternative the defendant has maliciously and wrongfully and with intent to injure the plaintiffs intimidated and coerced the master and/or owners and/or the said George Eric Middleton not to enter into contracts with the plaintiffs for the services of the plaintiffs whereby the plaintiffs have suffered damage. (4) Further and in the alternative the defendant unlawfully and maliciously and with intent to injure the plaintiffs conspired with Henry Martin and Daniel Hannah and others whose names are unknown to the plaintiffs to induce the said master and/or owners and/or the said George Eric Middleton to break the said contracts or alternatively to intimidate and coerce the said master and/or owners and/or the said George Eric Middleton to break the said contracts and/or not to enter into contracts with the plaintiffs for their services whereby the plaintiffs have suffered damage. The plaintiffs each claimed £100 damages from the defendants.

The Special Magistrate who heard the action entered judgment for each plaintiff for the sum of £100. He found for the plaintiffs in respect of the first and third causes of action alleged in their claim.

On appeal to the Supreme Court of South Australia all the Justices held that the judgment might be supported on the ground that the means by which the defendant procured the shipowners to break their contracts or to refuse to enter into any contract with the plaintiffs, as the case might be, involved an illegal act under the Industrial Code 1920 of South Australia. And Piper J. also held that a contract was entered into between the plaintiffs and the master and owners of the ship Manunda which the defendant induced them to break M-Kchernan v. Fraser 1.

The facts are fully stated in the judgments hereunder. Nelligan, for the appellant. This was an action for damages against McKernan for preventing these men from getting work. The claim is based on the ground that there had been a contract, and, if there were no contract, that McKernan prevented a contract being made. The Special Magistrate found that there had been a

1(1930) S.A.S.R. 364. 46 CLR 347

contract and that there had been a breach of it.

There was, however, no contract made between the shipowner and the respondents. The Full Court affirmed the decision of the Magistrate on the ground that the means by which the appellant procured the shipowners to break their contracts or to refuse to enter into any contract with the respondents, as the case might be, involved an illegal act under the Industrial Code of South Australia. There was no intention on the part of the respondents or the shipowner to make a complete contract until the articles were signed. No articles having been signed by the master or the men, there was no final and completed agreement, though it may have been that the appellant prevented a contract being made. Where it is shown clearly by the conduct of the parties that there should be no final agreement until the articles are signed, the mere picking-up of men will not constitute a contract. The Court took the view that the selection at the picking-up place amounted to an engagement which would subse- quently be embodied in articles. It is necessary to have the articles signed in accordance with sec. 46 of the Navigation Act. Where a statute requires an agreement to be made in writing and it is not made in writing, it is strong evidence that the parties did not intend the agreement to amount to a final and complete agreement. The intention of the parties at the picking-up place was no more than to select certain men and not to make a final agreement. If there were no contract and the men acted bona fide in the interests of their trade, and their object was found to be such, no action would lie. The real reason why the appellant acted was because the respondents were active in setting up a rival organization which was working in conjunction with the shipowners. Vickerson V. Crowe 1 and Re Great Eastern Steamship Co. (Claim of Williams) 2 are distinguishable, as in each of those cases the selection went beyond mere negotiation and there was an actual engagement and performance under it (Ridgway v. Wharton 3 ). As the articles were not signed, there was no contract alternatively, if it were not necessary to have the articles signed to make a final contract, there was no sufficient evidence to prove a contract. The matter was

1(1914) 1 K.B. 462. at p. 463. Ex. 1287, at p. 1297 : (1857) 6 H.L.C. 2(1885) 53 L.T. 594. 238 ; 11 E.R. 1287. 3(1854) 3 DeG. M. &G. 677 : 10 46 CLR 348

still in the stage of negotiation. Counsel referred to the Industrial

Code 1920 (S.A.), secs. 5, 100, 129, 130. There was no strike within the meaning of sec. 5 or at common law. But if unlawful means were employed the combination might give rise to a claim for damages (Vasey v. Port Adelaide Working Men's Associate Branch of the Waterside Workers' Federation of Australia 1; Williams Bros. (Hull) Ltd. v. Naamlooze Vennootschap W. H. Berghuys Kolenhandel 2 Sorrell v. Smith 3 ). The Union acted lawfully, and for the purpose of advancing its own benefit. The questions of law in issue are (1) whether lawful means were employed, and (2), assuming that no unlawful means were employed, were the men entitled to act as they did. The William Bros. Ltd. Case 4 is distinguishable as it was based on certain findings of fact which do not apply here. On the question of jurisdiction counsel referred to Farrer v. Close 5; Russell v. Amalgamated Society of Carpenters and Joiners 6. Whatever harm was inflicted on an individual, it is clear that the action was directed towards a class and for the purpose of benefiting those who inflicted the harm, and not for the purpose of injuring those on whom the harm was inflicted. [Counsel referred to Sorrell v. Smith Lumley v. Gye 7 Allen V. Flood 8 Quinn v. Leathem 9 Read v. Friendly Society of Operative Stonemasons of England, Ireland and Wales 10; Conway V. Wade 11 Davies v. Thomas 12 Ware &De Freville Ltd. V. Motor Trade Association 13 Reynolds v. Shipping Federation Ltd. 14; Hardie &Lane Ltd. v. Chilton 15; White v. Riley 16.]

Skipper, for the respondents. In this case, the shipowners having agreed with the Union that only unionists should be employed, objection would not have been raised if McKernan had gone to the employers and objected to the employment of these men as being unfinancial members of the Union; but pressure was brought to

1(1923) S.A.S.R. 235, at p. 242. 2(1915) 86 L.J. K.B. 334. 3(1925) A.C. 700. 4(1915) 86 L.J. K. .B., at pp. 335, 5(1869) L.R. 4 Q. B. 602, at p. 612. 6(1912) A.C. 421, at pp. 435-436. 7(1853) 2 E. &B. 216 ; 118 E.R. 8(1898) A.C. 1, at pp. 163-164, 166. 9(1901) A.C. 495, at p. 514. 10(1902) 2 K.B 732, at p. 737. 11(1909) A.C. 506, at pp. 511, 518. 12(1920) 2 Ch. 189, at p. 198. 13(1921) 3 K.B. 40. 14(1924) 1 Ch. 28. 15(1928) 2 K.B. 306. 16(1921) 1 Ch. 1. 46 CLR 349

bear on the shipowners under which the employers were compelled to discharge the respondents. The appellant destroyed the engage- ment, even putting it short of contract. The unionists used a strike and coercive means and successfully sought to force the employers to break the agreement. The means adopted by McKernan were coercive, and such as were not justified in law. Under the agreement the Union had made with the shipowners, the Union was bound to supply a crew and to give the shipowners free selection. Fraser was engaged to serve on the Manunda under the ship's articles, and McKernan caused a breach of that agreement (Niesmann v. Colling- ridge 1 ). The articles had been signed by the shipping-master and the respondents had a good cause of action against the shipping company. [Counsel referred to Giblan v. National Amalgamated Labourers Union of Great Britain and Ireland 2 and Brisbane Shipwrights' Provident Union v. Heggie 3.] The acts of inter- ference here are deliberate, and are not incidental to carrying on any business and are not accidental. It does not matter whether the terms of the contract were explicit or not. There were an offer and an acceptance, and a contract had been made. The men were willing to sign the articles and would have done SO if they had not been interfered with (Salmond on Torts, 7th ed., pp. 599, 605). McKernan tried persuasive measures and, those failing, he threatened a strike which was in violation of the South Aus- tralian Industrial Code. Had he merely endeavoured to dissuade the employers from taking these men, and had there been no con- cluded contract, the respondents might not have been entitled to succeed. They have, however, proved a combination with intent to injure and a combination wrongfully to injure, though the means may have been justified if the provision in the Industrial Code had not existed, but that Act makes the action illegal. To complete the contract there was nothing for the parties to negotiate about, though the articles had to be signed before the ship went to sea.

Nelligan, in reply.

Cur. adv. vult.

1(1921) 29 C.L.R. 177. 2(1903) 2 K.B. 600. 3(1906) 3 C.L.R. 686. 46 CLR 350

The following written judgments were delivered :-

GAVAN DUFFY C.J. AND STARKE J. The plaintiffs in this action are greasers and they brought an action in the Local Court at Port Adelaide against the defendant, who is the secretary of the Seamen's Union there. In their claims the plaintiffs alleged three causes of action. The first was that the defendant induced the master and owners of the motor-ship Manunda to break their contracts with the plaintiffs engaging them as greasers on the ship for a period of six months at a monthly wage of £18 7s. 6d. The second was that the defendant maliciously, and wrongly, and with intent to injure the plaintiffs, intimidated and coerced the master and owners of the Manunda not to enter into contracts with the plaintiffs for the service of the plaintiffs, whereby they lost employment. The third was that the defendant, Henry Martin, Daniel Hannah and others combined or conspired together, with intent to injure the plaintiffs in their calling as greasers, (a) to induce the master and owners of the ship to break their contracts of employment with the plaintiffs, (b) or to intimidate or coerce the said master and owners to break the said contracts, (c) or to intimidate or coerce the said master and owners not to enter into contracts with the plaintiffs for their service, whereby the plaintiffs were damaged.

The Special Magistrate who heard the action entered judgment for each plaintiff for the sum of £100. He found for the plaintiffs in respect of the first and third causes of action alleged in their claim. On appeal to the Supreme Court of South Australia all the Justices held that the judgment might be supported on the ground that the means by which the defendant procured the shipowners to break their contracts or to refuse to enter into any contract with the plaintiffs, as the case might be, involved an illegal act under the Industrial Code 1920. But Piper J. also held that a contract was entered into between the plaintiffs and the master and owners of the ship Manunda which the defendant induced them to break.

In our opinion, the judgment should be supported. It does not appear to us necessary to consider whether any contract of service was concluded between the master or owners of the Manunda and the plaintiffs, who were selected, or "picked up as the phrase is, for engagement. Nor is it necessary to inquire whether the defendant

46 CLR 351

used unlawful means under the Industrial Code in inducing the H. master and owners of the ship Manunda not to employ the plaintiffs as greasers. Since the decision of the House of Lords in Sorrell v. McKERNAN Smith 1 it must be taken as settled in English law that 44 a combination of two or more persons wilfully to injure a man in his trade or calling is unlawful and, if it results in damage to him, is actionable. If the real purpose of the combination is, not to injure another, but to forward or defend the trade of those who enter into it, then no wrong is committed and no action will lie, although damage to another ensues." According to Lord Dunedin in the same case 2, the effect of Allen v. Flood 3 and Quinn V. Leathem 4 is " to settle beyond dispute that in an action against an individual for injury he has caused to the plaintiff by his action, the whole question is whether the act complained of was legal, and motive or intent is immaterial but that in an action against a set of persons in combination, a conspiracy to injure, followed by actual injury, will give a good cause for action, and motive or intent when the act itself is not illegal is of the essence of the conspiracy." The tribunal must be satisfied that there has been a conspiracy, a common intention and a combination on the part of the defendants to injure the plaintiff in his business, and that acts must be proved to have been done by defendants in furtherance of that intention which had inflicted actual money loss upon the plaintiff in his trade " 5.

The facts in the present case are not in dispute, though possibly all minds would not draw the same inferences from these facts. The plaintiffs and the defendant belonged to an association known as the Federated Seamen's Union. The defendant was the secretary of that Union at Port Adelaide. The Union has been registered as an organization under the Commonwealth Conciliation and Arbitration Act but its registration had been cancelled, apparently owing to its misconduct or that of its members, and it was an unregistered body at all times material to this action. The plaintiffs were desirous that the association should again become a registered organization and refused to pay the contributions required by its rules until it

1(1925) A.C. 700. 2(1925) A.C., at p. 724. 3(1898) A.C. I. 4(1901) A.C. 495, 5(1925) A.C., at p. 721. 46 CLR 352

again became a registered body. They were thus unfinancial members but had not ceased to be members of the Union. Further they promoted, or at least, joined another body known as the Australian Seamen's Union, which attempted to register itself as an organization under the Commonwealth Conciliation and Arbitration Act. About January of 1929 the Adelaide Branch of the Seamen's Union resolved that members of the Seamen's Union refuse to sail with members who refused to pay up their contributions and that shipowners and all branches be SO informed. Sometime in May the defendant informed the manager of the Adelaide Steamship Company that trouble might arise on the water-front because there were two factions among the seamen and if members of one faction were engaged then members of the other faction might cause trouble. The fact that some members of the Seamen's Union were refusing to pay their contributions to the Union, and SO were unfinancial members, may have been referred to, but that it was at the root of the trouble does not appear to have impressed itself upon the manager of the shipping company. The matter, however, came to a head on the 23rd of May 1929 when the Company proceeded to "pick up' or select men for engagement on the motor-ship Manunda. The plaintiffs were 'picked up" or selected, but the defendant 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, and the sailors won't go into the yard." The Superintendent under the Navigation Act was prepared to allow the plaintiffs to sign the ship's articles and

SO was the picking-up officer; but he communicated with his head office, and ultimately told the defendant that he would ask the other selected men whether they would "sign on " with the plaintiffs. The picking-up officer thus states what followed: " I went out in the yard with the eight men and the rest of the men were standing near by. I said to the six men who had been selected with Stapleton and Fraser: 4 Will you sail if the other two men sign on ?' The defendant repeated these words after me. There was a hesitation. One man spoke up and asked what the conversation over the phone was between Hayter and the Company's office. I replied that has nothing to do with the question asked. I repeated the request,

46 CLR 353

46 C.L.R.]

OF AUSTRALIA. Will you men sign on if these other two men sign on also ? After several minutes one man said: 'I won't sign on; then a couple of minutes later the rest of them said: ' We won't sign.' I then handed back the discharges to Stapleton and Fraser and selected two fresh men. I could not accept them. It would mean holding up the ship."

It is clear enough on these facts that the defendant and members of the Seamen's Union were all acting together, i.e., in combination, as the phrase is. It is quite legitimate in many circumstances for a set of men to object to work with another man or another set of men and so to inform an employer (White v. Riley 1 ). But they are not justified in combining to prevent and in fact preventing a workman from obtaining any employment in his trade or calling merely because they wish to punish him. So we understand Sorrell V. Smith 2 and Giblan v. National Amalgamated Labourers' Union &. 3. The case, therefore, reduces itself to the question whether the defendant and his fellows combined together to withdraw the services of men of the Seamen's Union from the shipowners with intent to injure the plaintiffs.

The Special Magistrate, who saw and heard the witnesses, had no doubt that the men, instigated by the defendant and acting with him. refused their services to the shipowners with intent to injure the plaintiffs. I have come to the conclusion," said he, " that all this talk about the plaintiffs being unfinancial is absolutely insincere. It is all moonshine. The real reason of the animus against the plaintiffs is that they were active in trying to get a rival union registered in the Federal Arbitration Court. The plaintiffs could not be attacked on personal grounds, SO the assertion that they were unfinancial, although true as regards defendant's Union, was merely

pretext to damage them." This finding, we think, is open on the evidence. The Union rules doubtless provided what privileges and rights should be withdrawn from members who are unfinancial, and, if the Union were registered, contributions payable under its rules might be recovered in any Court of competent jurisdiction (Commonwealth Conciliation and Arbitration Act 1904-1930, sec. 68). According to the Special Magistrate the overdue contributions on the part of

1(1921) 1 Ch. at p. 13. 2(1925) A.C. 700. 3(1903) 2 K.B. 600. 46 CLR 354

A. each plaintiff only amounted to a sum of £1. In the face of facts

such as these, it is difficult to believe that the action of the defendant and his fellows was dictated solely or at all by a desire to forward or protect their own interests. The real object of that action was to punish the plaintiffs and prevent them obtaining employment as greasers anywhere in the Commonwealth. The combination, the intent to injure the plaintiffs and the resulting damage were estab- lished to the satisfaction of the Special Magistrate and on evidence upon which any reasonable man might act, and we see no reason to disturb his findings.

Consequently, in our opinion, the judgment below should be supported and this appeal dismissed.

RICH J. I have read the judgment of my brother Dixon and agree with it.

DIXON J. The Federated Seamen's Union of Australasia was registered as an organization under the Commonwealth Conciliation and Arbitration Act. In the year 1925 its registration was cancelled. It thereupon became a voluntary association of persons, unless and

SO far as it possessed or obtained a corporate or quasi-corporate character from some State enactment. In fact it appears that the Union, or some branches of it, had been registered under Part I. of the Industrial Arbitration Act 1912 to 1922 of New South Wales and under the Industrial Conciliation and Arbitration Act of Queensland.

In 1925 an agreement was made between the Union 'for and on behalf of itself, its officers and members," and the Commonwealth Steamship Owners' Association 'for and on behalf of itself and its members" including the Adelaide Steamship Company. This agreement described in detail the rates of pay and the conditions of employment to prevail upon vessels of the shipowners in respect of members of the Union. It contained an undertaking and agree- ment by the Union for itself, its officers and members, to man all vessels as soon as required to do SO by the owners, and not to interfere with the free selection and engagement of crews or individual members of crews. The registration of the Union in New South

46 CLR 355

Wales and Queensland did not, in my opinion, change its status elsewhere, nor did it affect the operation of the agreement upon members employed or engaged outside those States, at any rate if McKERNAN they were not members of the New South Wales and Queensland branches. Accordingly in South Australia the agreement amounts to a contract made by the persons appointed to manage a voluntary association for and on behalf of its members. It follows that, although the agreement may bind the funds of the Union, an individual member is not contractually bound unless, being a member at the time of the agreement, he authorized or ratified its making or was bound by rules which authorized the Committee of Management to contract in such a matter on his behalf. It does not appear whether any such rule existed or not.

In the year 1928 the officials holding office in the Union were "recalled" by a general meeting or meetings and others were appointed in their stead. Among those so appointed was the appellant, who became secretary of the South Australian Branch of the Union. His right to assume office was not undisputed, but it does not appear that the removal of the previous secretary and the appointment of the appellant were irregular. The Branch consisted of some five hundred members, and of these about one hundred seem to have been opposed to the policy of the new régime.

A rival union was set up and both Unions applied for registration under the Commonwealth Conciliation and Arbitration Act. Many members of the old Union, who espoused the new Union, refused to pay their subscriptions to the old Union upon the ground that it

had "lost its status" and ought no longer to be recognized. Among those who took this course were the two respondents. On 8th January 1929 a meeting of the Branch discussed the matter. In the course of the discussion one of the respondents was referred to by name. The meeting resolved that if the men who had refused to pay their subscriptions were picked up, the members of the Union would refuse to sail with them and instructed the secretary "to inform the shipowners not to pick up any of these men as it will cause unnecessary trouble," and " to inform all branches of these men's names." On 17th January 1929 a special meeting of the Branch adopted another resolution, "that all members who

46 CLR 356

A. refused to pay their contributions would either have to pay up or

leave their ship," and requested other members of the crew not to

McKERNAN sail with them. On 26th March 1929, at a stop-work meeting of

the Branch, it was resolved that "these men be asked to leave the meeting and all branches be informed of the names of the men who refused to pay their contributions." In May 1929 a crew was needed for the m.s. Manunda, owned by the Adelaide Steamship Company, and on 27th May the articles of the ship were opened by the Master. On or shortly before that date the appellant interviewed the acting manager of that Company and informed him of the rival factions in the Union and of the attempt to form another union, and gave him to understand that if their opponents were picked up the others would cause trouble; probably he said that the men had instructed him to say that they would not sail with "unfinancial" members. On the following day, for the purpose of engaging the engine-room staff and afterwards the crew, the engineer of the ship and an officer of the Company, a shipping-clerk, attended at the place near the Mercantile Marine Office in Port Adelaide where it was customary to pick up or engage seamen. The ordinary practice was observed.

A notice was chalked on a board outside the yard giving the name of the ship and the ratings that she required. The men gathered opposite. The appellant was present as Union secretary. He came in response to a message from the Company. The selection of eight greasers for the engine-room was the first task. The appellant told the crowd of men that eight greasers were wanted and a large number of men, about fifty, came into the pick-up yard, among them the two respondents. The engineer picked out men, one by one, who appeared suitable. As he picked out a man he called for and examined his discharge. If he decided to select him he handed his discharge to the shipping-clerk to hold and he told the man to stand on one side. After four greasers had been selected in this manner, the engineer picked out the respondent Fraser, examined his discharge, handed it to the shipping-clerk and told Fraser to stand aside. The appellant immediately asked him for his Union book and, having obtained it, turned to the engineer and told him he could not take the man because he was "unfinancial. The engineer replied that he had nothing to do with that. Fraser left

46 CLR 357

the yard to see the Superintendent, and returned saying that the H. shipping-master said his papers were in order and he could sign on. Two more men were then chosen, but the seventh greaser picked out by the engineer was the respondent Stapleton. The appellant objected to him on the same grounds and received the same answer. Stapleton saw the Superintendent and returned with the same report. When the eighth greaser had been selected, the appellant said that two more must be picked up in lieu of the respondents, that the other men would not sign the articles with them and that sailors would not come into the yard for engagement. The shipping- clerk and the engineer then went to the telephone in the shipping- master's office to communicate with the acting manager of the Company. The appellant went with them and heard what was said to the acting manager but not what was said by him. The shipping-clerk said that the secretary of the Union objected to two of the men picked up for the engine-room, and, unless two men were picked up in their place, the others would not sign on and there would be no picking-up of sailors. The acting manager, after consideration, said the ship must get away, and instructed him to ask the other men themselves whether they would sign on, and, if they refused, to pick up two other men in lieu of the respondents. They returned to the yard and the engineer asked whether the other men selected would sail if the respondents signed on. The appellant repeated the question. One man in the yard asked what had taken place in the office. The engineer replied that it had nothing to do with the question. Another said there were plenty who would sail if they did not: but at length one man said he would not sign on if the respondents did, and then the rest of the greasers also refused to sail with them. The respondents' discharges were thereupon handed back to them and two more greasers were selected, the sailors came into the yard, a full crew was selected and the articles were signed.

The respondents then sued the appellant in the Local Court of Port Adelaide for damages representing loss of wages and sustenance, which they recovered upon causes of action alleging that the appellant wrongfully and maliciously procured the shipowners to break contracts entered into by selecting them as greasers, and that the

46 CLR 358

A. appellant had conspired with two of the greasers and others to injure

the respondents or to intimidate and coerce the shipowners to break their engagements or not to enter into contracts with the respondents. The judgment of the Local Court was affirmed in the Supreme Court of South Australia, whence this appeal has been brought by special leave.

The first question for consideration is whether a contractual relationship was established between the respondents and the shipowners by what took place in the yard before they agreed to replace the respondents by two other greasers. There are decisions to the effect that, notwithstanding the provisions of the Merchant Shipping Act upon which secs. 46 and 47 of the Commonwealth Navigation Act 1912-1926 are based, a valid contract of service may be made by a seaman before signing articles although service at sea is included in the contract (Vickerson v. Crowe 1 and Haws v. Brown 2; and see Thomson v. Hart 3 and Re Great Eastern S.S. Co. 4 but compare Bell v. Mansfield 5 ). But assuming the statute allows a seaman to make such a contract of service, or at any rate to make with the shipowner a mutually binding contract to sign articles, the question remains whether upon a proper interpretation of what took place in the yard the shipowners by their engineer and shipping-clerk did then and there make such a contract immediately with each of the respondents. The wages and conditions of employment had been established by the agreement of 1925 between the Union and the shipowners, the ship was in a trade in which running agreements with the crew are made of the maximum duration, namely, six months, her articles had been opened and in any case were not likely to contain any unusual stipulations. Thus, in the nature or terms of the engagement there was no obstacle to the parties immediately giving their final mutual assent. On the other hand, the practice of picking up seamen was regulated, not merely by custom, but also in some respects by express provisions of the agreement between the Union and the shipowners. The place of engagement is fixed (subject to some exceptions) at the

1(1914) 1 K.B. 462. 2(1917) 117 L.T. 408. 3(1890) 18 R. (Ct. of Sess. Cas. 4th ser.) (Just. Cas.) 3. 4(1885) 53 L.T. 594. 5(1893) 19 V.L.R. 165; 14 A.L.T. 46 CLR 359

Mercantile Marine Offices or the adjacent buildings or land. The evident purpose of this provision is that articles may be signed before the Superintendent as soon as the men are selected. A McKERNAN clause provides that if a seaman is "engaged" and the ship's officer holds his discharge and "he is afterwards not engaged' the seaman shall be paid the sum of fifteen shillings. This provision shows that before the clause was adopted shipowners and seamen were considered to have a locus poententia after picking up. The pick-up, then, could not have been regarded as a mounting to a concluded agreement to serve or to sign articles. The whole agreement bears internal evidence of having originated in the industrial regulation of the Commonwealth Court of Conciliation and Arbitration which doubtless governed the relation between shipowner and seamen until the Union's registration was cancelled. The intention of the clause does not appear to be that picking-up shall amount to a contract with the man to pay him fifteen shillings if he is not signed on, but it rather seems to recognize that picking- up amounts in itself to no contract, and to impose upon the ship- owner an external obligation as an award might do, but by way of contract with the Union. When all this is considered with the supervisory control of the contract of service and its making which the statute confers upon the Superintendent, the proper conclusion appears to be that picking-up is merely preliminary to a contract and does not itself amount to a contract. From this it follows that no contractual relations were established between the respondents and shipowner and, so, that no breach of such relations was procured by the appellant.

It therefore becomes necessary to consider the respondents' cause of action in conspiracy. This cause of action is put upon more than one ground. It is said that the appellant was party to a combination to interfere with the respondents in the exercise of their calling by the use of unlawful means, or by the threat of unlawful means. The pressure which the appellant brought to bear upon the shipowners to induce them to refrain from taking the respondents upon the ship's articles is alleged to amount to or to involve an actual or threatened violation of sec. 100 of the Industrial Code 1920 of South Australia. This section makes penal

46 CLR 360

the doing of any act or thing in the nature of a strike. Secs. 129

and 130 render liable, as principal offenders, persons who are

McKERNAN concerned in the commission of such an offence, or incite, instigate

or counsel or encourage its commission, and persons who attempt to commit it. The statute defines "strike," but "without limiting the meaning of the term " (sec. 5). What was done or threatened does not fall within the description contained in the statutory definition, because, in refusing to sign the articles or offer for or accept engagement, the men would be doing no more than refusing to begin a new employment. But the Judges of the Supreme Court considered that there had been a general concerted refusal of the greasers to work and a threat of a general concerted refusal by the sailors, because of an alleged grievance affecting or connected with their employment, and that this amounted to a strike within the common understanding of the term. It is not easy to know what is necessary to constitute a "strike." The word does not represent any legal definition or description" (per Lord James of Hereford, Denaby and Cadeby Main Collieries Ltd. v. Yorkshire Miners' Associa- tion 1 ); and perhaps it has no certain connotation which is settled or accepted. When the accustomed course of the supply of commodities or services is interrupted or disturbed because labour is withdrawn or withheld, those who are affected by the consequence and are not much concerned with the cause naturally tend to call it a strike without further inquiry or discrimination. But it is noticeable that, in most of the attempts to state what amounts to a strike, prominence is given to the cessation or relinquishment of work, or at least the failure to resume work after a normal interruption or suspension. See the definition in New Oxford Dictionary, S.V. "strike," sub. § 9 and verb § 24, the passage in the judgment of Hannen J. in Farrer v. Close 2 and in that of Kelly C.B. in King V. Parker 3. It is true that in the Commonwealth Conciliation and Arbitration Act 1904-1930 the word is defined to include " the total or partial refusal of employees, acting in combination, to accept work, if the refusal is unreasonable: but it is to be observed that in Aus- tralian Commonwealth Shipping Board v. Seamen's Union of Australasia 4, where seamen refused in combination to accept employment on

1(1906) A.C. 384, at p. 405. 2(1869) L.R. 4 Q.B., at p. 612. 3(1876) 34 L.T. 887. 4(1925) 35 C.L.R. 462, at p. 483. 46 CLR 361

a ship until particular members of a crew were dismissed, Higgins J. said that if it were not for this definition " the refusal in combination to accept work would not be a strike at all. The ordinary meaning of strike is confined to ceasing work- downing tools.'' There is nothing opposed to this view in the judgment of Sankey J. (as he then was) in Williams Bros. (Hull) Ltd. v. Naamlooze Vennootschap W. H. Berghuys Kolenhandel 1, which was relied upon by Piper J. in the Supreme Court rather upon the sufficiency of the purpose of the abstention from work. The word "strike" may have more extensive meanings in commercial instruments, and its application may differ in the case of trades or callings in which the workmen ply for hire as luggage porters do, or work upon a succession of jobs as wharf-labourers do. But in a penal provision it ought not to receive an interpretation wide enough to include the concerted refusal of men to enter into a new employment of long duration. even although that employment is offered according to a regular customary practice by which labour is habitually obtained. For these reasons I do not think illegal means were actually adopted or were threatened at the place of engagement. The resolutions passed by meetings of the Branch were wide enough to include refusals to sail with "unfinancial members" in circumstances involving a strike within the statutory definition or breaches of sec. 100 and sec. 103 of the Navigation Act 1912-1926. But, at most, this amounts to a combination for a purpose to be effected by a lawful means or, if necessary, by unlawful means. The occasion did not arise for resorting to or threatening to resort to unlawful means, and no circumstance occurred in which such means could have been employed against the respondents. No attempt was made to rely upon the agreement of 1925 between the Union and the shipowners as making the means employed unlawful. The appellant himself cannot be considered as procuring a breach of this agreement by the Union (see Said v. Butt 2 and G. Scammell &Nephew Ltd. v. Hurley 3 ), and there is no evidence that the appellant himself was bound by the obligation of the agreement.

But on behalf of the respondents the cause of action in conspiracy was also supported upon the ground that the appellant was party

1(1915) S6 L.J. K.B 334. 2(1920) 3 K.B. 497. at p. 506. 3(1929) 1 K.B. 419, at pp. 443 46 CLR 362

OF A. to a combination which had for its object the wilful infliction of

damage upon the respondents. This assumes that the end is not in

McKERNAN itself unlawful, that the means are not unlawful, and that no threat

of an illegality is made in furtherance of the combination. It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy. At any rate so I understand the doctrine which has slowly won its way to final acceptance by the House of Lords (Sorrell v. Smith 1 ). To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests. There is some evidence in the present case that the appellant was embittered towards one at least of the respondents: but a consideration of the whole evidence establishes, in my opinion, that what actuated the meetings of the Branch and the appellant in pursuing the policy which the Branch adopted and he probably advocated, was the desire and the purpose of compelling the promoters of the rival Union to desist from the project by depriving them of employment and making manifest to their followers the unwisdom of adhering to them. Because in the struggle the opponents of those in charge of the old Union refused to contribute to its funds, their unfinancial" status became at once the means of identifying and describing them, and the pretext for disciplining them. When the Local Court finds

'that the defendant's real, as distinguished from his ostensible, objection to the plaintiffs was not that they were unfinancial but that they had been active in supporting a rival union," I do not think it states the facts with precision, but the finding does not, in my view, advance the plaintiffs' case. I think the cause of action in conspiracy was not established.

The appeal should be allowed. The order of the Local Court should be set aside and judgment be entered for the defendants.

1(1925) A C. 700. 46 CLR 363

EVATT J. In November 1928 the appellant, Peter McKernan, was appointed secretary of the Federated Seamen's Union of Australasia. This was a union of employees which had been in existence since McKERNAN 1885. At the time it had 6,000 members in the Commonwealth, including about 500 in the State of South Australia.

Shortly before McKernan's appointment, two persons named Woodsford and Rigby were prominent officials in the South Australian Branch of the Union. For some reason or other they were recalled from office by the members. Not content with the decision, they set about the formation of another organization. The new body was duly launched and called the Australian Seamen's Union. The promoters met with some little success, and enrolled about 100 members in the State of South Australia. The old Union had once been registered as an organization under the Commonwealth Concilia- lion and Arbitration Act, but it was deregistered in 1925. In 1929 the new Union was attempting to obtain such registration for itself. During the period under review, both Unions covered the same class of employee. Each claimed the exclusive right of representing the seamen of Australia.

When McKernan arrived in Adelaide to assume the duties of secretary, Rigby and Woodsford were smarting at their replacement. As they were prominent in the control of the new Union, considerable difficulties faced McKernan in carrying out the organizing work of the old Union.

From one aspect, this litigation itself is but another incident of the struggle between the old Union and the new. The plaintiffs in the present action, Fraser and Stapleton, were protagonists of the new body. Their costs in the litigation were borne by it. Woodsford, who had been secretary of the old Union, was provisional secretary of the new. He and Rigby seem to have been closely associated with the institution and direction of the present legal proceedings against McKernan. There is nothing wrong about that. But it evidences the undoubted fact that when Fraser and Stapleton brought their present action against McKernan in the Local Court at Port Adelaide, they were doing so, not merely to protect their own civil rights, but to strike a blow on behalf of the new body.

46 CLR 364

Fraser and Stapleton were awarded £100 damages each, against McKernan. They sued in respect of certain supposedly tortious acts committed against each of them individually. Their case is put most favourably by stating that they relied upon three alternative causes of action, namely :-

1. That McKernan conspired with two greasers named Martin

and Hannah and others to injure the plaintiffs by preventing their being employed on the m.s. Manunda; 2. That McKernan procured the owners of such vessel to break

actual contracts of service which had been entered into between each plaintiff and the owners; and 3. That McKernan was a party to a combination to prevent

the plaintiffs from being employed on the vessel by means which were unlawful as being prohibited by the Industrial Code 1920 of South Australia.

I omit from this statement much of the verbiage of the filed particulars of claim. The interests of justice usually require that when allegations of conspiracy are levelled, particulars should be given. The persons charged should know what is the case alleged against them and what overt acts are intended to be proved. The requirement of particulars in cases of criminal conspiracy has recently been affirmed in this Court (R. v. Weaver 1 ). The reasons for applying the practice to cases of civil conspiracy are almost as cogent because, apart from special dispensation given by statute, it now seems clear that the tort of civil conspiracy cannot be established unless the plaintiff proves (inter alia) the existence of a conspiracy punishable in criminal jurisdiction.

Administration of the law of conspiracy in its relation to trade competition and industrial disputes has been impeded by the frequent use of words of praise and blame. Both Atkin L.J. (as he then was) and Scrutton L.J. have forcibly pointed out the dangers of this tendency (Ware and De Freville Ltd. v. Motor Trade Association 2 ). In the present case, the temptation to characterize the conduct of McKernan and the old Union proved irresistible to the Local Court. Its judgment is strewn with question-begging phraseology. According to the Magistrate, the agreement between

1(1931) 45 C.L.R. 321. 2(1921) 3 K.B. 40. 46 CLR 365

the shipowners and the old Union "shows up the defendant and H. everybody connected with him in a most baneful light' "; the defendant and those associated with him "have not played the game," the plaintiffs "for their egregious sin in not paying up their Union subscriptions amounting to £1 each have been black-listed in all ports of the Commonwealth." These are a few of the instances where light is sacrificed to heat.

It is vital to the application of the principles of law to this case, that the facts should be seen in their proper perspective. The evidence of the responsible officer of the steamship company, Mr. G. R. Hayter, and others, shows that, throughout the trouble, McKernan's behaviour was marked with great restraint. I pass by for the moment the attempt made to discredit him, by calling evidence suggesting that he had a personal spite against Fraser, one of the plaintiffs. McKernan's evidence gave a very different complexion to the incidents, and the Magistrate in no way based his judgment upon this minor part of the case. Nor did the plaintiffs call the witnesses who could have corroborated Fraser's version of the matter.

Fortunately, the main facts of the case are not in substantial dispute. I have already explained how the conflict between the two rival Unions commenced in November and December 1928. Both the plaintiffs joined the new Union. Fraser, although not resigning from the old Union, paid no dues to it after September 1928. He was quite frank about his attitude. He stated in evidence that his reason for not paying was not because he was unemployed or in financial difficulties but merely because he "did not recognize " the old Union. "Stapleton and I," he said "were members of both Unions but supported the new." Fraser was active in trying to induce members of the old Union to join the new body, Stapleton was not actively concerned with the organizing work of the new Union. That McKernan was hostile to Stapleton personally, was not suggested. Stapleton had never seen him before May 23rd, 1929, when the important incidents of the "pick-up" for the Manunda took place. Fraser at one part of his evidence said: "I would not say I was on unfriendly terms with McKernan on 23rd May."

46 CLR 366

Throughout the years 1928 and 1929 the old Union had a working arrangement with the shipping companies under which an official of the Union would attend, when it was proposed to pick up" or select seamen for the purpose of being signed on for service on board vessels leaving Adelaide. After his appointment as secretary, it became McKernan's practice to attend these "pick-ups." He always did SO at the request of the representative of the shipowners. The owners also recognized the old Union, by acting upon the terms of a written agreement between them. This agreement laid down the general terms and conditions governing the employment of seamen in the industry. At no time was there any open recognition by the owners of the new Union, which was no party to the working agreement and was never represented at any "pick-up."

The majority of Adelaide seamen remained loyal to the old Union. They resented the attempt of a defeated minority to destroy or impair the status of their industrial organization. The danger to the old Union was not lessened but increased because the members of the rival Union did not formally terminate their membership. The evidence shows that McKernan himself did not have a vote at meetings of the Union. But he was entitled to speak at the meetings. He advised against any attempt on the part of members to adopt measures of retaliation against Rigby, Woodsford, Fraser and the others associated with them. Rigby and Woodsford do not appear to have been actively employed as seamen during the period in question. No doubt the organization of the new Union took up all their available time.

But McKernan's advice was not acceptable to his Union. On January 8th, 1929, a special meeting adopted a resolution "that in the event of these men, meaning Fraser and other unfinancial members, being picked up in the yard, we, the members of the Seamen's Union will refuse to sail with them and we instruct our secretary to inform the shipowners not to pick any of these men up as it would cause unnecessary trouble. We also instruct the secretary to inform all branches of these men's names." The men referred to in the resolution were Fraser and others who had refused to pay their Union dues, because they supported the new Union.

46 CLR 367

On January 17th, 1929, another resolution was carried to the H. effect "that all members who refused to pay their contributions would either have to pay up or leave their ship and we request other members of the crew not to sail with these men." On March 26th. 1929, a resolution was passed as follows "that these men be asked to leave the meeting and all branches be informed of the names of the men who refused to pay their contributions." No trouble ensued as a result of these resolutions before the Manunda pick-up on May 23rd, 1929.

On May 22nd the Manunda required eight greasers, twenty-two A.B.'s and a boatswain. The articles were duly opened at the office of the shipping-master, Port Adelaide. At all material times on May 23rd, the articles were ready for signature at the office by the persons selected to complete the crew. It is part of the case made against McKernan, that on May 22nd the members of the old Union were determined not to sail on the Manunda if the owners decided to engage any members who were refusing to pay their Union dues because of their association with the rival body. To this class Fraser and Stapleton belonged.

The existence of this determination on the part of members of the old Union cannot be disputed. On May 22nd McKernan saw Mr. Harris, acting manager of the steamship company, and conveyed to him that such was the decision of the Adelaide members who remained loyal to the old Union. "I will not deny," says Harris, "that McKernan said that the men had instructed him that they would not sail with unfinancial members. I was given to understand that there might be trouble with the men. At that time there were two factions among the Seamen's Union. The idea was that if we picked up men of the opposing section the others would create trouble.

We had a friendly chat about conditions generally, and consequently I gathered the impression that defendant wished to warn me that if I picked up men of one section there would be trouble with the other."

On May 23rd, in the morning, Mr. Hayter, who was the representa- tive of the shipowners at the* pick-up, telephoned to McKernan

as the recognized secretary of the Union," and the latter came to the shipping office. It was then agreed that Mr. Hayter would

46 CLR 368

"pick up' eight greasers for the Manunda. At this time, no one was present in the yard. McKernan made a sign to those awaiting selection, and 30 or 40 came into the yard. Middleton, Hayter's assistant, selected 3 or 4 men. He next "selected" Fraser, but McKernan at once objected, saying: "This man cannot sign on, he is unfinancial." Middleton said: "That has nothing to do with me." Fraser then left the yard and returned to say that the shipping- master said "he could sign on." Middleton went on selecting. In his evidence Hayter says

"He came to Stapleton, the other plaintiff. McKernan said :- That man cannot sign on, he is unfinancial. If you take these men, the other crowd will not sign on and the sailors will not go into the yard.' Stapleton then went away, and also announced on his return that 'the shipping-master will sign me on. " Middleton picked up the eighth greaser, and McKernan then said to Hayter: You will have to pick up two more men in place of Fraser and Stapleton." Hayter said: "I cannot do that until I receive instructions." Hayter then telephoned to Mr. Harris and told him what had happened, saying that "the others will not sign on unless we pick up two other men." It was then decided between Harris and Hayter that the selected men would be asked if they would sign on with Fraser and Stapleton, and, if they were not willing, two others would be selected.

Hayter, Middleton and McKernan then re-entered the pick-up yard, and Middleton asked the six greasers selected: " "Will you men sign on with these two men Fraser and Stapleton?' One of the greasers asked what conversation had taken place in the office. Middleton refused to tell him. Another greaser at once said "No" in answer to Middleton. Then McKernan repeated Middleton's question, and all the men said that they would not sign on with Fraser and Stapleton. Two other greasers were then picked up, and a full crew of sailors was also selected. All selected went into the shipping office, where the articles were read pursuant to the requirements of the Navigation Act, and the crew all signed on.

It appears from Hayter's evidence that he was told by McKernan on the previous day, that if the unfinancial members associated with the new Union were picked up with a view to being signed on the Manunda's crew, the Union members would not sail with them.

46 CLR 369

It follows that, when McKernan repeated Middleton's question to OF the six men about signing on, their refusal was merely in accordance with what the shipowners had already been informed.

The following facts are established by the evidence :- (1) The immediate object of the resolutions of the Union was to prevent all unfinancial members associated with the new Union. from obtaining employment on ships

(2) The representatives of the shipowners were aware of the fact that the greasers and sailors belonging to the old Union were determined not to enter into binding contracts of service or 44 sign on the articles, if the class they objected to, or any of them, were "signed on ,, with them;

(3) Fraser and other members of the new organization had, before and on May 23rd, refused to recognize the status of the old Union Fraser described it as "a somewhat lawless body as it is not regis- tered

(1) All persons present at the pick-up, including Fraser and Stapleton, and the representatives of the shipping company, regarded the signing on " of the persons selected for engagement as an essential condition to the coming into existence of a binding contract of employment. The visit of Fraser and Stapleton to the shipping office in order to ascertain whether they might sign on," shows that they treated such act as the commencing point of any engage- ment to serve as greasers. The phrase "sign on " was used repeatedly to indicate something deemed necessary to the making of any concluded agreement either to employ or be employed.

On the "conspiracy to injure" part of the claim. McKernan succeeds because the common design had as its real root," the desire of all the greasers and McKernan himself to advance the interests of the old Union, and to protect it and its members against the strong opposition of the new. The facts show that the defence of the organization and its economic and industrial interests in relation to the hostile operations of the rival Union, was the primary and substantial object of the action taken against Fraser and Stapleton. Such action deprived them of the chance of being employed, but it was not inspired by personal hatred of either of them. Any dislike evinced to them by McKernan or the members of the Union was the result of what was considered to be their

1(1898) A.C. 1. 46 CLR 412

disloyalty to the old-established trade union. Even if McKernan

was inspired by hatred of the plaintiffs in the sense of "independent malevolence" (and the evidence does not establish this), such malice cannot be imputed to the greasers who acted in combination with him at the pick-up. They, certainly, entered into the agreement from motives of Union policy. They are not liable for conspiracy to injure the plaintiffs. And if they are not, neither is McKernan.

All three causes of action have failed, the appeal should be allowed and judgment entered for the defendant.

McTIERNAN J. I am of the opinion that the appeal should be allowed. I have read the judgment of my brother Dixon, with which I agree.

Appeal allowed with costs. Judgment of the

Supreme Court discharged and in lieu thereof appeal from Local Court allowed with costs and judgment entered for defendant with Solicitors for the appellant, Nelligan, Hague &Parsons. Solicitors for the respondents, Scammell, Hardy &Skipper