Schleter t/a Cape Crawford Tourism v Brazakka Pty Ltd - [2002] NTSC 42

Schleter t/a Cape Crawford Tourism v Brazakka Pty Ltd [2002] NTSC 42
PARTIES:SANDRA ANNE SCHLETER
t/as CAPE CRAWFORD TOURISM

v

BRAZAKKA PTY LTD
(ACN 002 460 899)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:94/2002 (20209947)
DELIVERED:  18 July 2002
HEARING DATES:  5 July 2002
JUDGMENT OF:  THOMAS J
CATCHWORDS:

TORTS – trespass to land and rights of real property – land owner’s rights to airspace – whether helicopter joy flights over land are merely incidental or exploitation of the airspace amounting to trespass.
TORTS – interference with contractual relationships – whether the plaintiff was prevented from exercising its rights against the land owner pursuant to the licence – whether the plaintiff’s contractual rights have been interfered with.
TORTS – other economic torts – the tort of interference with economic interest – whether there was an unlawful interference of the plaintiff’s economic interests.
Beach Petroleum NL & Anor v Johnson & Others (1991) 105 ALR 465; Sanders v Snell (1998) 196 CLR 329; Ansett Transport Industries (Operations) Pty Ltd & Others v Australian Federation of Airline Pilots & Ors (1991) VR 637, applied.
Bernstein of Leigh (Baron) v Skyviews & General Ltd (1978) 1 QB 479; Bendal Pty Ltd v Mirvac Project Pty Ltd & Anor (1991) 23 NSWLR 464, followed.

REPRESENTATION:
Counsel:
Plaintiff:R. Bruxner
Defendant:P. Ward
Solicitors:
Plaintiff:Hunt & Hunt
Defendant:Cridlands
Judgment category classification:        C
Judgment ID Number:  tho200207
Number of pages:  11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Schleter t/a Cape Crawford Tourism v Brazakka Pty Ltd [2002] NTSC 42
No. 94/2002 (20209947)

BETWEEN:
SANDRA ANNE SCHLETER
t/as CAPE CRAWFORD TOURISM

Plaintiff
AND:
BRAZAKKA PTY LTD
(ACN 002 460 899)

Defendant

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 18 July 2002)

The plaintiff makes application by summons seeking the following orders:
1.An order that until 30 November 2002, Brazakka Pty Ltd, including its servants and agents, be restrained from conducting aircraft flights over, or within a 5 km radius of the rock formation known as “The Lost City” and located on McArthur River Station, being the land comprised in Perpetual Pastoral Lease number 01051, NT Portion 4319.
2. Such further or other orders as the Court thinks fit.
The application is supported by the following affidavit material filed on behalf of the plaintiff:
(1)      affidavit of Collette Anne Dixon affirmed on 28 June 2000.
(2)      affidavit of Collette Anne Dixon affirmed on 3 July 2002.
(3)      affidavit of Sandra Anne Schleter sworn 29 June 2002.
(4)      affidavit of Sandra Anne Schleter sworn 4 July 2002.
In response the defendant relies on an affidavit of Jeffrey Weeks sworn 4 July 2002.
The background facts of this matter are as follows:
The plaintiff conducts a business under the name Cape Crawford Tourism. Included in this business are helicopter tours to “The Lost City” which is a rock formation consisting of ancient columns of sandstone located on a plateau of the Abner Range on McArthur River Station. “The Lost City” is only accessible by helicopter.
The tour business to “The Lost City” operates during the dry season from May to October each year. “The Lost City” is the prime tourist attraction in and around Cape Crawford.
From Annexure JW1 to the affidavit of Jeffrey Weeks sworn 4 July 2002 being “Record of Administrative Interest and Information” and “Search Certificate” the property on which the rock formation known as “The Lost City” is located is a Perpetual Pastoral Lease owned by Mount Isa Mines Limited. The address of this property is McArthur River Station.
The plaintiff deposes to having a verbal agreement with Mr David Daniell, who is the station manager of McArthur River Station, on behalf of a company named Colinta Holidays Pty Ltd (ACN 010 031 017) granting her exclusive permission to conduct helicopter flights over “The Lost City”, and to land there and conduct ground tours.
Annexure CD1 to the affidavit of Collette Anne Dixon affirmed on 28 June 2002 is a facsimile letter on letterhead MIM Holdings Limited, McArthur River Station, Colinta Holdings Pty Ltd. The letter is signed by David Daniell, the “Manager McArthur River Station”. Omitting formal parts the letter states:
“This letter is to certify that Sandra Schleter of Cape Crawford Tourism has been given sole operator access to the Rock Formation known as The Lost City”.
It is not in dispute on the affidavit material before the Court that the defendant has operated helicopter joy-flights over “The Lost City” rock formation since 7 June 2002.
The defendant’s helicopter flights do not land on the property of the homestead on which the rock formation known as “The Lost City” is located. The defendant’s helicopter flights take off from and land at the Heartbreak Hotel’s helicopter landing site.
In his affidavit sworn 4 July 2002, Mr Weeks deposes to the fact that the defendant flies such helicopter at a minimum of 600 feet above ground level, maintains a distance of approximately five to six nautical miles away from the homestead when flying over the property and has not flown above livestock.
Mr Weeks further deposes to the fact that after departing the Heartbreak Hotel’s helicopter landing site a journey takes approximately eight minutes to reach a point above “The Lost City” rock formation. The helicopter flies a minimum of one orbit and a maximum of three orbits above “The Lost City” rock formation remaining in the vicinity for approximately three to five minutes before flying to the top of Cape Crawford, which is outside the property where “The Lost City” is located, for further sight seeing.
The plaintiff in her affidavits has deposed to the arrangements she has in place for organising her helicopter flights, the tours that she offers her clientele which include on the ground tours around the rock formation, the financial arrangements to pay the owner of McArthur River Homestead, the remuneration she receives, and the loss of business she has sustained as a consequence of the helicopter flights made by the defendant since 7 June 2002.
I accept that as a consequence of the defendant company taking tourists on helicopter flights over the rock formation known as “The Lost City” the plaintiff has suffered a loss of business and been financially disadvantaged.
I now turn to consider the law to be applied in respect of this application to restrain the defendant company from conducting these helicopter flights.
Mr Bruxner, counsel for the plaintiff, submits that the plaintiff has established rights under the tort known as interference with economic interests.
The existence of the tort is recognised in decision of Von Doussa J in Beach Petroleum NL & Anor v Johnson & Others (1991) 105 ALR 456 at 463:
“The law of torts has recognised a cause of action for damages if a person wilfully does an act ‘calculated’ to cause physical harm to another and thereby infringe that person’s legal right to personal safety, and in consequence causes physical harm including mental distress: Wilkinson v Downtown [1897] 2 QB 57 at 58-9. It would be a small step to extend that principle to allow an action for damages against a person who wilfully does an act calculated to cause economic harm to another, and in consequence causes economic loss of the kind intended. But that step was rejected in Allen v Flood [1898] AC 1 although it was by then established that a malicious interference, without lawful justification, with existing contractual relations was an actionable wrong (Lumley v Gye (1853) 2 E & B 216; 118 ER 749) and, more recently, see JT Stratford & Son Ltd v Lindley [1965] AC 269. In Rookes v Barnard [1964] AC 1129 the House of Lords upheld the existence of an action for damages for the tort of intimidation, that is for coercion of a person by unlawful threats into doing or abstaining from doing something which that person would otherwise have the right to do. Professor Fleming in The Law of Torts, 7^th ed, pp 660-4 treats these developments in the law of torts as but instances of the emergent and more general tort of unlawful interference with economic interests.”
The High Court has not had occasion to find the existence of the tort of wrongful interference with economic interest. In Sanders v Snell (1998) 196 CLR 329, there was discussion of such a tort. The Court in that instance was not satisfied there had been an unlawful act which would be an essential element to the definition of the tort. Gleeson CJ, Gaudron, Kirby and Hayne JJ stated at p 341 – 342:
“We do not think it is necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia. For present purposes, it is enough to consider one element of that tort: the element of unlawful act.
The tort that is emerging, or has emerged in the United Kingdom, is a tort of interference with trade or business interests by an unlawful act directed at the persons injured. The element of unlawfulness is essential to the definition of the tort. Otherwise, conduct of the most unremarkable kind would be tortious. Any person engaged in trade or commerce will daily act deliberately to further that trader’s economic interests by obtaining business that otherwise would go to a trade rival. The whole focus of the business of many, if not all, traders is to compete with trade rivals and by advancing their own economic interests, inevitably harm the economic interests of their rivals. In many cases the trader’s conduct will be directed specifically at a particular rival. But, if the means of competition employed are lawful, and those means cause no breach of obligation, there is no warrant for holding the trader liable to the rival for the economic consequences of that competitive conduct. The fact that the conduct is engaged in deliberately or is directed specifically at the person who suffers economic detriment is not enough to make the conduct tortious. It may or may not, in given circumstances, give rise to statutory remedies.”
In the application before this Court, counsel for the plaintiff submits that the unlawful act committed by the defendant is an act of trespass on McArthur River Station within which the rock formation known as “The Lost City” is sited.
There does not appear to be any disagreement between the parties that an act of trespass is an unlawful act – see Fleming, The Law of Torts (9^th ed) p 767.
Mr Ward, counsel for the defence, submits that the defendant’s admitted activities do not amount to a trespass.
The argument on behalf of the defence is that: A land owner’s rights are restricted “to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it, and ... above that height he has no greater rights in the air space than any other member of the public.” Bernstein of Leigh (Baron) v Skyviews & General Ltd (1978) 1 QB 479 at 488. Griffiths J went on to state at p 488 par 2:
“Applying this test to the facts of this case, I find that the defendants’ aircraft did not infringe any rights in the plaintiff’s air space, and thus no trespass was committed. It was on any view of the evidence flying many hundreds of feet above the ground and it is not suggested that by its mere presence in the air space it caused any interference with any use to which the plaintiff put or might wish to put his land. ….”
This test has been adopted in Bendal Pty Ltd v Mirvac Project Pty Ltd & Anor (1991) 23 NSWLR 464. Bryson J at 470 par 1:
“At some point for which no precise definition is available, activities above the surface of land cease to have sufficiently close relationship with it to be protected by the law of trespass, the modern example being furnished by the decision of Griffiths J in Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479 relating to overflying aircraft.”
In the application before this Court the evidence is that the owners of McArthur River Station hold the property pursuant to the terms of a Perpetual Pastoral Lease. Copy of the Perpetual Pastoral Lease and the terms and conditions are Annexures JW1 and JW2 to the affidavit of Jeffrey Weeks sworn 4 July 2002. This includes a condition:
“4. That subject to section 88 of the Pastoral Land Act, the lessee will use the land only for pastoral purposes.”
The admitted activities of the defendant as deposed to in Mr Weeks’ affidavit include flying the helicopter over the pastoral lease at a minimum height above ground level of 600 feet. The defendant helicopter maintains a distance of approximately five to six nautical miles away from the homestead and has not flown above livestock.
I agree with the submission made by Mr Ward on behalf of the defendant that the rights of the owner of McArthur River Station are limited to the terms of the pastoral lease. I accept these rights extend upward only so far as is necessary for pastoral purposes. I accept the submission on behalf of the defendant that the activities of the defendant do not infringe any rights of the land owner.
Mr Bruxner, on behalf of the plaintiff, submits that the touchstone must be whether the defendant’s presence in the airspace is merely incidental or instead involves some form of exploitation of the airspace. I have had the opportunity of reading the article which Mr Bruxner referred me to being “The Law Relating to the Use of Remote Sensing Techniques in Mineral Exploration” (1982) Vol 56 ALJ 30 by S.M. Morgan
I accept the author’s analysis of the decision of Griffiths J in Bernstein of Leigh (Baron) v Skyviews & General Ltd (1978) (supra) in that Griffiths J did not deny the existence of rights with respect to airspace nor did he decide that interference with the upper airspace is never actionable. It was a decision based on the facts of that particular case, that those rights had not been infringed.
Similarly on the basis of the facts of the case before this Court I am not persuaded that an act of trespass has been committed by the defendant.
The author of this article summarises his conclusion as to the current state of the law regarding trespass to airspace as follows (p 37):
“1. An entry into airspace which does not interfere with the actual or potential user of the surface occupier and which does not exploit the airspace against the interests of such occupier is not trespass.
2. Any unauthorised entry which, by exploiting the airspace results in a benefit to the prospective defendant is trespass.”
On the facts in this case I am unable to conclude that the defendant, flying its helicopter in the way described, that there is an interference with the rights of the owner of the pastoral lease or that the defendant is exploiting the airspace against the interests of the owner or occupier of the pastoral lease.
In Ansett Transport Industries (Operations) Pty Ltd & Others v Australian Federation of Airline Pilots & Ors (1991) 1 VR 637 Brooking J at 667:
“… It will be enough for me to refer to the speeches of Lord Reid and Viscount Radcliffe in J.T. Stratford & Son Ltd. v. Lindley [1965] AC 269, at p. 324 and pp. 328-9; to the decision of the Court of Appeal in Daily Mirror Newspapers v. Gardner [1968] 2 QB 762; [1968] 2 All ER 163; to the decision of the Court of Appeal in Acrow (Automation) Ltd. v. Rex Chainbelt Inc. [1971] 1 WLR 1676 (a decision that has been criticised in so far as it regarded the means used as unlawful); to what was said by Lord Denning MR, who has had so much to do with this tort, in Torquay Hotel Ltd. v. Cousins [1969] 2 Ch. 106, at p. 139; Ex parte Island Records Ltd. [1978] Ch. 122, at p. 136 and Hadmor Productions Ltd. v. Hamilton [1983] 1 AC 191, at pp. 201-3; to the speech of Lord Diplock in the last-mentioned case, at pp. 228-9; to Brekkes Ltd. v. Cattel [1971] 2 WLR 647; to Emms v. Brad Lovett Ltd. [1973] 1 NZLR 282; to Van Camp Chocolates Ltd. v. Aulsebrooks Ltd. [1984] 1 NZLR 354; and if I may say so respectfully, last but not least, to the decision of the house of Lords in Merkur Island Shipping Corporation v. Laughton [1983] 2 AC 570, where Lord Diplock, in a speech with which the other Law Lords expressed their agreement, accepted, at p. 609, the existence of a common law tort of ‘interfering with the trade or business of another person by doing unlawful acts’. The speech accepts that for the purposes of this genus of torts ‘unlawful act’ includes the procuring of another person to break a subsisting contract or interference with the performance of a subsisting contract. I mention also Lonrho Plc. v. Fayed [1989] 3 WLR 631. As a judge of first instance, I do not think I need go beyond these authorities, especially in view of what was said by Lord Diplock. What the law is in Australia on this subject must await the authoritative determination of the High Court, but my duty is to apply the law as laid down by the House of Lords.”
I agree with the submission made by Mr Ward on behalf of the defendant that in this case, the defendant has done nothing to prevent the plaintiff exercising its rights as against the landowner pursuant to the licence, nor to interfere with the plaintiff’s contracts with its customers. There has, therefore, not been any interference with the plaintiff’s contractual rights.
There being no evidence the defendant has committed an unlawful act the tort of interference with economic interests cannot be made out.
Accordingly I would dismiss this application.
I grant leave to the parties to apply on the question of costs.

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