58 CLR 479

(Judgment by: EVATT J)


High Court of Australia

Judges: Latham CJ
Rich J
Dixon J

Evatt J
McTiernan J

Subject References:
Intellectual property
Collated information
Notice on racecourse
Broadcast of races from adjoining land
Unnatural use of land
Proprietary right in spectacle

Hearing date:
Judgment date: 26 August 1937


Judgment by:

The appellant, who is the plaintiff in the suit, is the owner and occupier of a well-known Sydney racecourse, duly licensed as such under the law of New South Wales. It there carries on the business of conducting race meetings. The land has been specially laid out and improved as a racecourse, and the fence which surrounds the course is sufficiently high to ensure privacy for all practical purposes, although it is possible to obtain some sort of view of the course and the races from certain vantage points outside. The respondents, who are defendants to the suit, are three in number, viz.: (a) the owner and occupier of a residence situated outside the plaintiff's course, (b) a company which carries on the business of broadcasting for profit, and (c) one of its announcers who broadcasts to the public descriptions of the plaintiff's races as and when each race is being run. As the land and residence of the first defendant did not include any position which afforded a sufficiently advantageous view over the plaintiff's fence, a special observation tower was erected by the broadcasting company on the land, and, from a platform on this tower, the simultaneous broadcast description of all races is given.

As a result of the conjoint actions of the three defendants, it is established that persons who would otherwise attend the races, paying for admission, are induced to listen in to the broadcasts either at public houses or other places supplied with radio receiving sets; the reason for the abstention of such persons is plain-they obtain all the practical advantages of viewing the plaintiff's races without having to pay to enter, and they make their bets "off the course."

The law of New South Wales prohibits the business of betting at all places except licensed courses, but systematic broadcasting of races such as that conducted by the defendant makes it almost impossible to police such gaming legislation. While it is plain that either the Commonwealth Parliament by its control of broadcasting, or the State Parliament by virtue of its general legislative powers, could end or minimize illegal "off the course" betting by prohibiting simultaneous broadcasting of races, it is, of course, erroneous to infer that, in the absence of such legislation, such broadcasting is necessarily lawful.

The defendant's broadcast descriptions are invariably followed by an announcement of the starting prices of the winning horses. This information, although essential for the payment over of winning bets at hotels or other places where there is listening in, can only be obtained from persons who have been admitted to the racecourse; so that an important, if brief, part of the information broadcasted by the defendants either involves, or could be made to involve, a series of breaches of the contract of admission entered into between the plaintiff and those attending the course. Further, it is obvious from the defendants' broadcast descriptions that the announcer makes frequent use of the plaintiff's official programmes as well as of the results posted on the board at the course. As a result of this use of the material brought into existence by the plaintiff, it was faintly suggested that there had been an infringement of copyright by the defendants. I need not elaborate further on these very minor aspects of the case for I have reached the conclusion that, on the main part of the case, the plaintiff is entitled to succeed.

It is quite unnecessary to cite or discuss authorities which repeat or illustrate the well-known principle that the plaintiff must affirmatively establish that the defendants have been guilty of a tort, and that the damage which they have caused to be inflicted upon the plaintiff may be damnum absque injuria. At the same time, it is practically conceded that, if a legal wrong has been committed, the case is one for the application of the remedy of injunction.

The defendants have argued that the damage and loss of the plaintiff have been sustained by it rather in its character as racing entrepreneur than as occupier of land. But the plaintiff's profitable conduct of its business cannot be dissociated from its occupation of the land, and damage to the plaintiff's business is necessarily reflected by some diminution in the value of the land of the plaintiff. It has been said with accuracy that

"nuisance does not convey the idea of injury to the realty itself. It means rather an interference with some right incident to the ownership or possession of realty. The law of nuisance is an extension of the idea of trespass into the field that fringes property. It is associated with those rights of enjoyment which are, or may become, attached to realty. Ownership or rightful possession necessarily involves the right to the full and free enjoyment of the property occupied" (Street, Foundations of Legal Liability (Tort), vol. 1, p. 211).

The defendants have not been content with a mere denial that a tort has been committed. They have ventured upon general reasoning in defence of their conduct, and Mr. Watt in his able argument said that the broadcasting company was a competitor of the plaintiff in the business of entertainment and was equally "entitled to be protected in the legitimate exercise of their trade." This phrase is taken from the well-known judgment of Bowen L.J. in Mogul Steamship Co Ltd v McGregor, Gow, & Co, [F28] at p. 611, a case which has occupied some prominence in the judgment of Nicholas J. In the Mogul Case shipowners, in order to force a rival shipowner out of business, combined for that purpose, but employed no unlawful means. But, in the present case, what the broadcasting company does is, by means of broadcasting, to incorporate in its own entertainment, simultaneously with the plaintiff's entertainment, precisely so much of the latter as an expert verbal representation can give, the plaintiff having to expend capital and labour in providing its entertainment, and the company contributing nothing and taking everything. I cannot imagine a case which is further removed from the facts of the Mogul Case or other cases where individuals or groups, being in the same field of commercial enterprise, choose to engage in fierce competition for custom by making special offers or concessions in return for promises to give exclusive custom. The implied basis of all such competition is that each competitor is providing goods or services to the customer which are entirely the result of its own efforts, and that there is no "appropriation" or "borrowing" of the goods or services of the other. In the Mogul Case Bowen L.J. gave some illustrations of the type of conduct which is not permissible as between trade rivals. It is a profound mistake to suppose that the list was intended to be exhaustive. The classical example of the setting up of a new school the competition of which causes loss and damage to an old school in the neighbourhood only illustrates the principle that mere trade competition does not give rise to liability for tort. The facts of the present case might be analogous to the illustration of the rival schools if it were shown that, by means of broadcasting, television and the like, those conducting the new school listened in to the lessons or lectures delivered at the old school, and, by reproducing them as near as may be, caused damage to those conducting the old school. The attempt of the defendants to justify their conduct by reference to the cases on trade competition breaks down.

It is not enough for the plaintiff to destroy the argument that the defendants are only engaged in normal trade competition with the plaintiff. The plaintiff must establish his cause of action. But in analysing the validity of the plaintiff's attempt to establish his cause of action, we must recognize certain fundamental principles recently summarized by the House of Lords in Donoghue v Stevenson. [F29] There, Lord Atkin said:

"I venture to say that in the branch of the law which deals with civil wrongs, dependant in England at any rate entirely upon the application by judges of general principles also formulated by judges, it is of particular importance to guard against the danger of stating propositions of of law in wider terms than is necessary, lest essential factors be omitted in the wider survey and the inherent adaptability of English law be unduly restricted. For this reason it is very necessary in considering reported cases in the law of torts that the actual decision alone should carry authority, proper weight, of course, being given to the dicta of the judges". [F30]

In the same case, Lord Macmillan said in particular reference to the tort of negligence:

"The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed". [F31]

Here the plaintiff contends that the defendants are guilty of the tort of nuisance. It cannot point at once to a decisive precedent in its favour, but the statements of general principle in Donoghue v Stevenson [F32] are equally applicable to the tort of nuisance. A definition of the tort of nuisance was attempted by Sir Frederick Pollock, who said:

"Private nuisance is the using or authorizing the use of one's property, or of anything under one's control, so as to injuriously affect an owner or occupier of property-

by diminishing the value of that property;
by continuously interfering with his power of control or enjoyment of that property;
by causing material disturbance or annoyance to him in his use or occupation of that property.

What amounts to material disturbance or annoyance is a question of fact to be decided with regard to the character of the neighbourhood, the ordinary habits of life and reasonable expectations of persons there dwelling, and other relevant circumstances" (Indian Civil Wrongs Bill, c. VII., s. 55).

At an earlier date, Pollock C.B. had indicated the danger of too rigid a definition of nuisance. He said:"I do not think that the nuisance for which an action will lie is capable of any legal definition which will be applicable to all cases and useful in deciding them. The question so entirely depends on the surrounding circumstances-the place where, the time when, the alleged nuisance, what, the mode of committing it, how, and the duration of it, whether temporary or permanent" (Bamford v Turnley [F33] ).

In the present case, the plaintiff relies upon all the surrounding circumstances. Its use and occupation of land is interfered with, its business profits are lessened, and the value of the land is diminished or jeopardized by the conduct of the defendants. The defendants' operations are conducted to the plaintiff's detriment, not casually but systematically, not temporarily but indefinitely; they use a suburban bungalow in an unreasonable and grotesque manner, and do so in the course of a gainful pursuit which strikes at the plaintiff's profitable use of its land, precisely at the point where the profit must be earned, viz., the entrance gates. Many analogies to the defendants' operations have been suggested, but few of them are applicable. The newspaper which is published a considerable time after a race has been run competes only with other newspapers, and can have little or no effect upon the profitable employment of the plaintiff's land. A photographer overlooking the course and subsequently publishing a photograph in a newspaper or elsewhere does not injure the plaintiff. Individuals who observe the racing from their own homes or those of their friends could not interfere with the plaintiff's beneficial use of its course. On the other hand, the defendant's operations are fairly comparable with those who, by the employment of moving picture films, television and broadcasting would convey to the public generally (i) from a point of vantage specially constructed; (ii) simultaneously with the actual running of the races, (iii) visual, verbal or audible representations of each and every portion of the races. If such a plan of campaign were pursued, it would result in what has been proved here, viz., actual pecuniary loss to the occupier of the racecourse and a depreciation in the value of his land, at least so long as the conduct is continued. In principle, such a plan may be regarded as equivalent to the erection by a landowner of a special stand outside a cricket ground for the sole purpose of enabling the public to witness the cricket match at an admission price which is lower than that charged to the public bodies who own the ground, and, at great expense, organize the game.

In concluding that, in such cases, no actionable nuisance would be created, the defendants insist that the law of England does not recognize any general right of privacy. That is true, but it carries the defendants no further, because it is not merely an interference with privacy which is here relied upon, and it is not the law that every interference with privacy must be lawful. The defendants also say that the law of England does not forbid one person to overlook the property of another. That also is true in the sense that the fact that one individual possesses the means of watching, and sometimes watches what goes on on his neighbour's land, does not make the former's action unlawful. But it is equally erroneous to assume that under no circumstances can systematic watching amount to a civil wrong, for an analysis of the cases of J. Lyons & Sons v Wilkins [F34] and Ward Locke & Co (Ltd ) v Operative Printers' Assistants' Society [F35] indicates that, under some circumstances, the common law regards "watching and besetting" as a private nuisance, although no trespass to land has been committed.

The defendants relied strongly upon the decision in Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd. [F36] That case decides that, if an exhibition of animals is conducted at a sports ground, the occupier cannot, by purporting to confer upon A the exclusive right of taking photographs, prevent B, who is also a spectator lawfully in attendance, from taking photographs. The court considered that the occupier should have protected himself by regulating the terms of the contract of admission and so preventing the use of photographs by unauthorized persons. In one judgment there was an obiter dictum as to the right of taking a photograph from outside the ground. But the case does not anywhere suggest that there exists an absolute and unqualified right to photograph from outside a ground the spectacle which is being conducted inside.

In the United States, in the case of International News Service v Associated Press, [F37] Brandeis J. regarded the "Our Dogs" Case [F38] as illustrating a principle that "news" is not property in the strict sense, and that a person who creates an event or spectacle does not thereby entitle himself to the exclusive right of first publishing the "news" or photograph of the event or spectacle. [F39] But it is an extreme application of the English cases to say that because some overlooking is permissible, all overlooking is necessarily lawful. In my opinion, the decision in the International News Service Case [F40] evidences an appreciation of the function of law under modern conditions, and I believe that the judgments of the majority and of Holmes J. commend themselves as expositions of principles which are not alien to English law.

If I may borrow some phrases from the majority decision, I would say that in the present case it is indisputable that the defendant broadcasting company has "endeavoured to reap where it has not sown," and that it has enabled all its listeners to appropriate to themselves "the harvest of those who have sown." Here, too, the interference with the plaintiff's profitable use of its land takes place "precisely at the point where the profit is to be reaped, in order to divert a material portion of the profit from those who have earned it to those who have not". [F41] For here, not only does the broadcasting company make its own business profits from its broadcasts of the plaintiff's races; it does so, in part at least, by conveying to its patrons and listeners the benefit of being present at the racecourse without payment. Indeed, its expert announcer seems to be incapable of remembering the fact that he is not on the plaintiff's course nor broadcasting with its permission, for, over and over again, he suggests that his broadcast is coming from within the course. The fact that here, as in the International News Service Case, [F42] the conduct of the defendants cannot be regarded as honest should not be overlooked if the statement of Lord Esher is still true that "any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England" (quoted in Donoghue v Stevenson [F43] ).

The fact that there is no previous English decision which is comparable to the present does not tell against the plaintiff because not only is simultaneous broadcasting or television quite new, but, so far as I know, no one has, as yet, constructed high grandstands outside recognized sports grounds for the purpose of viewing the sports and of enriching themselves at the expense of the occupier.

In the United States, no such practice has ever been commenced. The only case which can be regarded as comparable is Detroit Base ball Club v Deppert, [F44] decided by the Supreme Court of Michigan. There, the defendant resided upon his own land, which was situated near the recreation ground of the plaintiff company, which conducted baseball games for profit as a member of the National Baseball League. A high fence enclosed the ground, but the defendant, who had a barn on his land, erected a stand on the roof of his barn solely for the accommodation of persons who wished to view the games played on the plaintiff's ground. The defendant charged less for the accommodation provided by him than was ordinarily charged for admission to the recreation ground.

Apparently the plaintiff failed to establish the fact that persons who visited the defendant's stand would otherwise have paid the admission fee to the plaintiff's ground. The court refused an injunction, but upon the ground that the plaintiff's remedy at law was "entirely adequate." Campbell C.J. dissented, stating that "the law has never defined nuisance in such a way as to be exhaustive, for the plain reason that perverse ingenuity can readily devise new means of harm". [F45] He added:

"All the rules of law made to redress offensive invasions of private property and rights, short of trespass, go upon the theory that conduct tending to great provocation, unless checked by civil remedies, may lead to disturbance. The present case does not differ in principle from any other where exhibitions are profitable and the profits are secured to the owners. This nuisance is one which is chiefly obnoxious from its repetition and continuance, and I think should be restrained by injunction". [F46]

So far as it goes, the decision supports the claim of the present plaintiff, for the reasoning of the majority of the court was that the plaintiff possessed an adequate remedy at law for the private nuisance of which he complained. In the present case, damage to the plaintiff has been established and found. I can see no difference in principle between the present defendants' broadcasting of the races observed from their specially erected observation tower and the special erection outside the plaintiff's racecourse of a grandstand solely for the purpose of charging the public for the right to overlook the plaintiff's entertainment. In each case, the price charged, or the absence of any charge, may be shown to have caused or induced persons who would otherwise attend the ground to stay away, but at the same time enabled them to observe or listen to a running description of the race.

It should be appreciated that the plaintiff does not question the general principle that it is a legitimate use of property to erect and extend homes for the purpose of obtaining or improving favourable prospects or "views." A number of cases bearing upon such question have been collected and discussed by Professor Winfield in a learned article on "Privacy," published in the Law Quarterly Review, vol. 47, p. 23. The Balham case there discussed illustrates not only what Paley called the "competition of opposite analogies," but also, in my opinion, how the competition might fairly be resolved. It appeared that, by an arrangement of large mirrors, "neighbours" succeeded in observing all that went on in the surgery of a near-by dentist. Professor Winfield rightly asks: "Why should it not have been actionable as a nuisance?" In my opinion, such conduct certainly amounted to a private nuisance and should have been restrained by injunction, although the sole object of the "peeping Toms" of Balham was to satisfy their own degraded curiosity and not to interfere with the dentist's liberty of action. In truth, no normally sensitive human being could have pursued his profession or business under so intolerable an espionage, and the result would have been to render the business premises practically uninhabitable.

The motive of the wrongdoers at Balham was to satisfy their curiously perverted instincts. But let us suppose that, by such devices as broadcasting and television, the operating theatre of a private hospital was made inspectable, so that a room outside the hospital could be hired in order that the public might view the operations on payment of a fee. It would not be any the less a nuisance because in such a case the interference with the normal rights of using and enjoying property was accentuated and aggravated by the wrongdoers making a profit out of their exhibition. Let it be also supposed that medical students, who would otherwise pay a fee to the hospital in order to witness the operations, stayed away because they were able to see them performed elsewhere but simultaneously for a smaller fee, the result being that damage is sustained by the hospital.

My opinion is that an action would lie, not only in the Balham case but in the instances I have suggested and that a court of equity would grant the additional remedy of an injunction. If this conclusion is right, the following propositions may be suggested:

Although there is no general right of privacy recognized by the common law, neither is there an absolute and unrestricted right to spy on or to overlook the property of another person.
A person who creates or uses devices for the purpose of enabling the public generally to overlook or spy upon the premises of another person will generally become liable to an action of nuisance, providing appreciable damage, discomfort or annoyance is caused.
As in all cases of private nuisance, all the surrounding circumstances will require examination.
The fact that in such cases the defendant's conduct is openly pursued, or that his motive is merely that of profit making, or that he makes no direct for the privilege of overlooking or spying will provide no answer to an action.

The above-suggested statement of principle may require either extension or qualification, but in essence I think that it is in accordance with the principles of the common law of England, the "inherent adaptability" of which is as essential today as ever it was, having regard to our "altering social conditions and standards." These phrases of Lord Atkin and Lord Macmillan, [F47] though applied to another branch of the common law, are equally applicable to the problem which has arisen in this case. I can see nothing in the statement of principle to which reasonable objection would be taken in practice. Indeed, no one who who recognizes the existence of any duties towards his neighbour could ever think of acting in contravention of the principles. Only an insufficiently disciplined desire for business profit and an almost reckless disregard, not so much of the legal rights as of the ordinary decencies and conventions which must be observed as between neighbours, could have induced the broadcasting company to cause the loss to the plaintiff which has been proved in this case. The argument that the plaintiff might have been protected itself from intrusion and loss by increasing the height of its boundary fence comes with ill grace from the defendants, whose reply would probably have been to disfigure further the Taylor bungalow by increasing the height of the broadcasting tower. In such a way, reprisals might go on indefinitely. However, in the circumstances proved, I am of opinion that the plaintiff should not be remitted either to self-help or to legislative aid, but that he is entitled to redress from the law by the application of the principles which I have suggested are embodied in the common law. Thus the plaintiff is entitled to maintain an action for damages for private nuisance, and, if so, it is indisputable that he is also entitled to an injunction against all three defendants.

In my opinion the appeal should be allowed.