VICTORIA PARK RACING AND RECREATION GROUNDS CO LTD v TAYLOR58 CLR 479
(Judgment by: LATHAM CJ)
Between: VICTORIA PARK RACING AND RECREATION GROUNDS CO LTD
Notice on racecourse
Broadcast of races from adjoining land
Unnatural use of land
Proprietary right in spectacle
Judgment date: 26 August 1937
The following written judgments were delivered:
This is an appeal from a judgment for the defendants given by Nicholas J. in an action by the Victoria Park Racing and Recreation Grounds Co Ltd against Taylor and others.
The plaintiff company carries on the business of racing upon a racecourse known as Victoria Park. The defendant Taylor is the owner of land near the racecourse. He has placed an elevated platform on his land from which it is possible to see what takes place on the racecourse and to read the information which appears on notice boards on the course as to the starters, scratchings, etc, and the winners of the races. The defendant Angles stands on the platform and through a telephone comments upon and describes the races in a particularly vivid manner and announces the names of the winning horses. The defendant the Commonwealth Broadcasting Corporation holds a broadcasting licence under the regulations made under the Wireless Telegraphy Act 1905-1936 and carries on the business of broadcasting from station 2 UW. This station broadcasts the commentaries and descriptions given by Angles. The plaintiff wants to have the broadcasting stopped because it prevents people from going to the races and paying for admission. The evidence shows that some people prefer hearing about the races as seen by Angles to seeing the races for themselves. The plaintiff contends that the damage which it thus suffers gives, in all the circumstances, a cause of action.
The plaintiff's case is put as an action upon the case for nuisance affecting the use and enjoyment of the plaintiff's land. It is also contended that there is an unnatural user of Taylor's land by Angles to which the Broadcasting Co is a party and of which it takes advantage. The unnatural user is, I understand, alleged to consist in the erection of the wooden structure on Taylor's land, which Angles uses and the use of the land for broadcasting purposes. It is contended that, there being this unnatural user of the land, the defendant is liable for all the damage which may happen to any person, including the plaintiff, as a result of such user.
The first contention is that the plaintiff's land has been made suitable for a racecourse, that by reason of the action of the defendants it has been deprived of at least some measure of that suitability, and that therefore this is a case of nuisance-an unlawful interference with the use and enjoyment of land. No analogous case has been cited to the court. I agree that the category of nuisance is not closed and that if some new method of interfering with the comfort of persons in the use of land emerges the law may provide a remedy. For example, the increasing use of electricity, with the possibility of the escape of electricity into an adjoining property, has provided a new possible source of interference with the use of land and the law provides a remedy in such a case.
In this case, however, in my opinion, the defendants have not interfered in any way with the use and enjoyment of the plaintiff's land. The effect of their actions is to make the business carried on by the plaintiff less profitable, and they do so by providing a competitive entertainment. It is unnecessary to cite authorities for the proposition that mere competition (certainly if without any motive of injuring the plaintiff) is not a cause of action. The facts are that the racecourse is as suitable as ever it was for use as a racecourse. What the defendants do does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse. The alleged nuisance cannot be detected by any person upon the land as operating or producing any effect upon the plaintiff's land. It is consistent with the evidence that none of the persons on that land may, at any given moment, be aware of the fact that a broadcast is being made. The only alleged effect of the broadcast is an effect in relation to people who are not upon the land, that is, the people who listen in or have the opportunity of listening in and who therefore stay away from the land. In my opinion the defendants have not in any way interfered with the plaintiff's land or the enjoyment thereof.
It has been contended that if damage is caused to any person by the act of any other person an action will lie unless the second person is able to justify his action. Many cases show that there is no such principle in the law (See Hammerton v Dysart; [F1] Grant v Australian Knitting Mills Ltd, [F2] at p. 64).
The plaintiff relied upon the maxim sic utere tuo ut alienum non laedas. The argument founded upon this maxim is met by Bonomi v Backhouse, [F3] which is referred to by the learned trial judge. I think it is desirable to reproduce the passage which the learned judge quotes in his judgment:"As a general principle, it is difficult to conceive a cause of action from damage when no right has been violated, and no wrong has been done. The maxim sic utere tuo ut alienum non laedas is mere verbiage. A party may damage the property of another where the law permits; and he may not where the law prohibits: so that the maxim can never be applied till the law is ascertained; and, when it is, the maxim is superfluous". [F4]
I am unable to see that any right of the plaintiff has been violated or any wrong done to him. Any person is entitled to look over the plaintiff's fences and to see what goes on in the plaintiff's land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. Further, if the plaintiff desires to prevent its notice boards being seen by people from outside the enclosure, it can place them in such a position that they are not visible to such people. At sports grounds and other places of entertainment it is the lawful, natural and common practice to put up fences and other structures to prevent people who are not prepared to pay for admission from getting the benefit of the entertainment. In my opinion, the law cannot by an injunction in effect erect fences which the plaintiff is not prepared to provide. The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff's land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff's ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information. The defendants did not infringe the law in any of these respects.
The plaintiff further contended that there was an unnatural user of land by the defendant Taylor and that all the defendants were liable for resulting damage to the plaintiff's land or to the plaintiff's business. In my opinion, this contention cannot be supported. "Prima facie, it is lawful to erect what one pleases on one's own land" (Rogers v Rajendro Dutt, [F5] at p. 89). It is not suggested that Taylor has broken any building regulation. If he had done so the remedy would be found under the relevant building regulations, and not in an action of the present kind. In truth, the plaintiff's complaint would be the same in all material particulars if Taylor had a two-storey house from the upper storey of which Angles made his broadcast. In my opinion it would be impossible to contend that there was an unnatural user of the land and because they were used for that purpose. If Taylor complies with any relevant provision under the Federal Post and Telegraph Act or the Wireless Telegraphy Act, he is entitled to have a telephone and to use his premises as an originating point for broadcasting. So also the Commonwealth Broadcasting Co is entitled to broadcast under the licence granted in pursuance of the Federal regulations. I am not prepared to assent to what I regard as the surprising argument that the use of land for broadcasting is an unnatural user of land within the principle of Rylands v Fletcher. [F6] Broadcasting of races could doubtless be prevented, either altogether or without the consent of the persons who undertake the trouble and expense of organizing race meetings, by a regulation dealing with the conditions of broadcasting licences; but no such regulation has yet been made.
In reality there is no particular connection between the use of the defendant Taylor's land as land and the wrong which the plaintiff alleges that it suffers. The position in all material particulars would be exactly the same if the broadcasting were done from a motor car on a road from which the racecourse could be seen or by a man standing on high land of which he was not the owner or the occupier. Reference to Taylor's land in the argument is introduced only for the purpose of relying upon an alleged unnatural user of that land. As I have already said, in my opinion, there is no such user.
The claim under the head of nuisance has also been supported by an argument that the law recognizes a right of privacy which has been infringed by the defendant. However desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists. The contention is answered, in my opinion, by the case of Chandler v Thompson: [F7] see also Turner v Spooner, [F8] at p. 803: "With regard to the question of privacy, no doubt the owner of a house would prefer that a neighbour should not have the right of looking into his windows or yard, but neither this court nor a court of law will interfere on the mere ground of invasion of privacy; and a party has a right even to open a new windows, although he is thereby enabled to overlook his neighbour's premises, and so interfering, perhaps, with his comfort"; see also Tapling v Jones. [F9]
It has been argued that by the expenditure of money the plaintiff has created a spectacle and that it therefore has what is described as a quasi-property in the spectacle which the law will protect. The vagueness of this proposition is apparent upon its face. What it really means is that there is some principle (apart from contract or confidential relationship) which prevents people in some circumstances from opening their eyes and seeing something and then describing what they see. The court has not been referred to any authority in English law which supports the general contention that if a person chooses to organize an entertainment or to do anything else which other persons are able to see he has a right to obtain from a court an order that they shall not describe to anybody what they see. If the claim depends upon interference with a proprietary right it is difficult to see how it can be material to consider whether the interference is large or small-whether the description is communicated to many persons by broadcasting or by a newspaper report, or only to a few persons in conversation or correspondence. Further, as I have already said, the mere fact that damage results to a plaintiff from such a description cannot be relied upon as a cause of action.
I find difficulty in attaching any precise meaning to the phrase "property in a spectacle." A "spectacle" cannot be "owned" in any ordinary sense of that word. Even if there were any legal principle which prevented one person from gaining an advantage for himself or causing damage to another by describing a spectacle produced by that other person, the rights of the latter person could be described as property only in a metaphorical sense. Any appropriateness in the metaphor would depend upon the existence of the legal principle. The principle cannot itself be based upon such a metaphor.
Even if, on the other hand, a spectacle could be said to exist as a subject matter of property, it would still be necessary, in order to provide the plaintiff in this case with a remedy, to show that the description of such property is wrongful or that such description is wrongful when it is widely disseminated. No authority has been cited to support such a proposition.
The plaintiff also argued, though it did not plead, that the defendants were guilty of some infringement of copyright. This argument lacked precision in every respect. If an attempt had been made to plead this claim I think that the difficulties in the way of establishing it would at once have become apparent. It has not been proved that the plaintiff has copyright in anything. There may possibly be copyright in a race book, but it is not shown that the plaintiff has such copyright in this case, or, if the plaintiff has copyright, that the defendant has infringed it. Even if the defendant Angles used the race book for the purpose of obtaining information, he did no more than state facts which were recorded in the race book. The contention that the names or numbers of the starting horses and of the scratched horses and the numbers of the winners, etc, placed upon boards in the racecourse, constituted original literary works so as to be possible subjects of copyright does not appear to me to require any detailed answer. A race result is ordinarily announced by reference to the numbers of horses in some such form as the following:
Copyright, where it exists, exists for fifty years from the death of the author (Copyright Act 1912-1935, sched., s. 3). Much more argument than has been produced in this case would be required to convince me that because the plaintiff caused those numbers to be exhibited for a few minutes upon a notice board, everybody in Australia was thereafter for a term of fifty years from somebody's death precluded from reproducing them in any material form (Copyright Act, sched., ss. 1 (2) and 2 (1)). The law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts. The Copyright Act 1912-1935 gives protection only to "original literary dramatic musical and artistic work" (See sched., s. 1). What the law of copyright protects is some originality in the expression of thought (Halsbury's Laws of England, 2nd ed., vol. 7, p. 521). The plaintiff has no rights by virtue of the statute, and common law rights to copyright are abrogated by s. 31 of the schedule to the Act. In my opinion, the claim based upon copyright fails.
I agree with the judgment of Nicholas J. and with the reasons which he gave for it. In my opinion the appeal should be dismissed.