The Which Company Pty Ltd t/as T3 Direct v McNicol - [2002] WADC 217

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THE WHICH COMPANY PTY LTD t/as T3 DIRECT -v- MCNICOL [2002] WADC 217

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 23 SEPTEMBER 2002

DELIVERED : 14 OCTOBER 2002

FILE NO/S: CIV 1317 of 2002

BETWEEN: THE WHICH COMPANY PTY LTD t/as T3 DIRECT (ACN 091 728 620)
Plaintiff
AND
JOSEPH JOHN MCNICOL
Defendant

Catchwords:

Practice - Western Australia - Summary judgment application brought by the defendant - Tort of intentional interference with trade or business interests

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr A J N Aristei
Defendant: Mr J M Malcolm

Solicitors:

Plaintiff: Tan & Tan
Defendant: Jeremy Malcolm

Case(s) referred to in judgment(s):

D C Thomson & Co Ltd v Deakin [1952] Ch 646
GWK v Dunlop Rubber Co (1926) 42 TLR 376
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
J T Stratford & Son Ltd v Lindley [1965] AC 269
National Phonograph Co Ltd v Edison-Bell Phonograph Co Ltd [1908] 1 Ch 335
Sanders v Snell (1998) 196 CLR 329

Case(s) also cited:

Allen v Flood [1898] AC 1
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61-424
Ansett Transport Industries (Operations) Pty Ltd & Ors v Australian Federation of Air Pilots & Ors (1989) 95 ALR 211
Australian Guarantee Corporation Ltd v De Jager [1984] VR 483
Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396
Bride v Peat Marwick Mitchell [1989] WAR 383
Burton v The President of the Shire of Bairnsdale (1908) 7 CLR 76
Buyquick.Com Ltd v Foxgold Pty Ltd [2000] WASC 216
Davies v Nyland & O'Neil (1975) 10 SASR 76
Evans Deakin & Co Pty Ltd v Kaiser Engineers and Constructors Inc & Anor [1968] Qd R 379
Fancourt & Anor v Mercantile Credits Limited (1983) 154 CLR 87
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Hamersley Iron Pty Ltd v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch & Ors [2000] WASC 66
In the Matter of Juson Pty Ltd (1992) 8 WAR 13
Lewkowski v Bergalin Pty Ltd, unreported; SCt of WA; Library No 7675
Lill v Merchant Capital (WA) Limited (1996) 15 WAR 536
McKernan v Fraser & Anor (1931) 46 CLR 343
Merkur Island Shipping Corporation v Laughton & Ors [1983] 2 AC 570
Phillips v Mineral Resources Developments Pty Ltd [1983] 2 Qd R 138
Quancorp Pty Ltd & Anor v MacDonald & Ors [2000] WASC 213
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
Rouse v Shepherd [No 2] & Ors (1994) 35 NSWLR 277
Russell Davison v Prosin, unreported; SCt of WA; Library No 980277; 22 May 1998
Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV & Ors [1984] 1 All ER 296
Scaffidi Nominees Pty Ltd v Buswell, unreported; SCt of WA; Library No 960588; 11 October 1996
Strategic Minerals Corporation NL v Hendry Rae & Court, unreported; SCt of WA; Library No 8999; 16 August 1991
Suburban Homes Pty Ltd v Ward [1928] VLR 267
Sydney Holdings Pty Ltd v New Holders Pty Ltd [1938] VLR 217
Torquay Hotel Co Ltd v Cousins & Ors [1969] 2 Ch 106

DEPUTY REGISTRAR HEWITT:

The matter for determination arises from the defendant's application filed on 4 June 2002 seeking a summary judgment pursuant to O 16 r 1 against the plaintiff.
The plaintiff derives income by direct marketing on behalf of paying clients using the email network and in the course of that business the plaintiff used certain internet protocol numbers which are described in par 3 of the Statement of Claim.
Unsolicited marketing emails of a kind comparable with junk mail are known within the industry as SPAM. There exists on the internet an internet site known as SPEWS ("SPAM Prevention Early Warning System"). SPEWS maintains a list of internet addresses of entities and individuals accused of sending out SPAM to which internet service providers subscribe. The internet service providers used by the plaintiff did so subscribe.
The pivot of the plaintiff's case against the defendant is contained in par 4 of the Statement of Claim and it is in the following terms:
"On or about the 20^th May 2002 the Defendant caused to be sent to an organisation named SPAM PREVENTION EARLY WARNING SYSTEM ("SPEWS") an unfounded complaint that the Plaintiff had been sending Unsolicited Bulk Email ..."
As a result it is alleged that SPEWS listed the plaintiff on its website as an entity disseminating SPAM. The result of the SPEWS listing was that the internet service providers with whom the plaintiff had operated declined to forward the plaintiff's emails and have severed their business relation with it allegedly resulting in loss and damage.
Potentially two heads of claim arise through the pleaded case. The first possibility is that the cause of action is based upon the unlawful interference with trade or business interests. Although not recognised within Australia to this stage, that tort has emerged in the United Kingdom. The High Court in Sanders v Snell (1998) 196 CLR 329, whilst not endorsing the existence of a similar tort within Australia, did not reject the possibility and in my view there is a reasonable prospect that the Courts in this country will recognise principles similar to those emerging in the United Kingdom and that the tort of unlawful interference with trade or business or some equivalent may well arise within this jurisdiction. Summary judgment applications should not operate stifle the development of the law providing there is a reasonable possibility that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365. Therefore, insofar as the summary judgment application might be said to rely on the proposition that the plaintiff's cause of action is based on law as yet to be developed and expressed in Australia, that would not, in the context of this case, be a sound basis for giving the defendant a judgment. In making that comment I immediately note that Counsel for the applicant/defendant, although including that proposition in his summary of argument, did not press it before me.
The alternative cause of action upon which the Statement of Claim might rest is the tort of interference with contractual relations.
No matter which of the torts might form the basis of the plaintiff's claim, each contains within it the proposition that the behaviour that the defendant can be characterised as an unlawful or wrongful act. "… The element of unlawfulness is essential to the definition of the tort. Otherwise conduct of the most unremarkable kind would be tortious …" Sanders v Snell (supra) at 341.
In England examples of such unlawful behaviour have been: placing the plaintiff under physical restraint D C Thomson & Co Ltd v Deakin [1952] Ch 646; removal of essential tools D C Thomson & Co Ltd v Deakin (supra); fraud National Phonograph Co Ltd v Edison-Bell Phonograph Co Ltd [1908] 1 Ch 335; trespass GWK v Dunlop Rubber Co (1926) 42 TLR 376; inducement of a third party to commit a wrongful act J T Stratford & Son Ltd v Lindley [1965] AC 269.
I struggle to identify any act on the part of the defendant which could be characterised as unlawful or wrongful. The pleaded case put forward by the plaintiff hinges on the proposition that the plaintiff made an unfounded complaint that the plaintiff had been sending unsolicited bulk email. To my mind the critical allegation is that the complaint made was unfounded.
In par 8 of the Affidavit of Wayne Mansfield filed on 2 July 2002 the deponent states as follows:
"The Plaintiff Company does not deny that they do send bulk unsolicited email as part of their business. It does deny that any unsolicited emails have been sent through the services provided by Swiftel and Webcentral whose services are subjected to the imposition of blocks caused by the actions of the Defendant. The services provided by Swiftel and Webcentral have been terminated due to the actions of the Defendant both before and subsequent to the commencement to this action …"
It therefore follows that the proposition upon which the plaintiff rests its pleaded case is not sustainable, that is that the complaint that the plaintiff had been sending unsolicited bulk email was unfounded. The evidence of the plaintiff clearly establishes that allegation was accurate.
There was some discussion between myself and Counsel for the plaintiff on the question of whether the complaint might be characterised libellous and thus unlawful in some sense. An accurate statement can never be defamatory within this jurisdiction, the provisions of the Criminal Code giving complete exculpation in regard to statements of truth. It therefore follows that the complaint pleaded in the Statement of Claim is incapable of being defamatory and thus even on that basis incapable of being characterised as unlawful in order to sustain either of the causes of action upon which the plaintiff apparently relies. In any event recognition of a new tort would not be required to allow a plaintiff to sue for damages for defamation.
There is however another aspect of the matter with which I shall deal. It is alleged that the defendant communicated with SPEWS. That is a pivotal matter within the Statement of Claim. The defendant on his oath denies that to be the case and states that he does not even know how to contact SPEWS. No evidence has been put forward by the plaintiff in opposition to this application which in my view impugns that statement or gives any basis upon which it might be regarded as suspect. The internet listing at the SPEWS site refers to an internet website operated by the defendant. It also lists another internet site. There is no acknowledgment within the SPEWS web page as to where it obtained the information concerning the plaintiff and it appears to me there is no inference to be drawn from the SPEWS listing that the information it published was obtained from any communication by the defendant much less anything to indicate he is not to be believed on his oath.
Counsel for the plaintiff suggests that it would be unfair to end this action at this stage without giving the plaintiff the opportunity to further explore this case using the interlocutory processes now available to it in these proceedings.
I do not agree. The plaintiff has commenced an action which appears to me to have been speculative and based on propositions which it knew to be incorrect (see my earlier discussion regarding unfounded). If not an abuse the action is akin to one.
My decision is therefore that the plaintiff's action should be dismissed and a judgment of dismissal entered on behalf of the defendant. The grounds for that decision are firstly:
(a)that whatever ground of action the plaintiff may rely upon, an unlawful act by the defendant must be identified, and there is no act of that colour disclosed on the evidence before me;
(b)the sworn testimony of the defendant shows he has a clear defence to the claim and nothing by the plaintiff weakens that assertion;
(c)it is not appropriate to allow an action commenced without evidence to continue in the hope that such evidence will eventually be forthcoming.