58 CLR 479

(Judgment by: RICH 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 plaintiff company is the owner and occupier of certain land near Sydney which is laid out and equipped as a racecourse. The locality is eminently suited for such purpose-there are two or three similar courses in the vicinity-and the land is being put to its best use and that use is natural and legitimate. The plaintiff company at frequent intervals holds meetings on this course. Its privacy or exclusiveness is guarded by suitable fences and gates. The result is that no one, unless entrance is permitted, can under ordinary conditions view the races or obtain the information, which is only published on the course. That information is shown on boards and semaphores and consists in the scratchings of horses, the position at the barrier of the horses running, the names of the jockeys, the protest flag and the result of the races. The defendants, on the other hand, are using their premises in a non-natural way which curtails or impairs the use and enjoyment of the plaintiff company's land and detracts from its value. The defendant Taylor owns and occupies a cottage and land opposite the racecourse. On the land at the side of this cottage he has erected a tower and platform.

An observer standing on the platform is enabled to view the whole of the racing tracks and obtain the collated information to which I have referred. The relation of the defendant corporation and of the defendant Angles to the defendant Taylor is stated by the learned primary judge as follows:

"The defendant, the Commonwealth Broadcasting Corporation Limited, referred to in the 2 UW, is a limited company licensed in accordance with regulations under the Wireless Telegraphy Act 1905-1936 of the Commonwealth of Australia, to carry on the business of broadcasting as a "B" class station. 2 UW derives the greater part of its revenue from advertisements, which are broadcast to listeners together with items of news or of entertainment. The defendant Cyril Angles, with the permission of the defendant Taylor, observes each of the race meetings held by the plaintiff company from the platform erected on Taylor's land, and describes each race by speaking through a microphone and communicating a description of the race, together with other information relating to the competitors, by means of a land line to the studio of 2 UW, whence the descriptions and information mingled with advertisements are broadcast to listeners in Sydney and the surrounding districts. The defendant Angles is an employee of 2 UW and the defendant Taylor receives from one or other of these defendants a fee of PD1 for each time that the platform is used for the purpose mentioned above....I was satisfied,"

his Honour said,

"from a view which I had of the course that the most favourable point for observation was the platform on the defendant Taylor's land. From that position an observer could keep the whole of the tracks under observation and could follow the horses racing down the straight to the winning post, could observe the protest and weight flag and could decipher the numbers of the placed horses as well as the post positions and scratchings displayed on the boards". [F10]

Evidence was led as to the falling off of attendance at the course. The impression that this evidence left on his Honour's mind was "that there were numbers of persons who would have attended Victoria Park had it not been possible for them to listen to simultaneous broadcast descriptions of the races either in their own homes or in the homes of their friends or at a public house, and I so hold. These appeared to be persons who took very little interest in horses and derived little enjoyment from the spectacle of a race but were addicted to betting and who found excitement and suspense in following broadcast descriptions. Possibly no other broadcast would have lured away so many racegoers as those for which the defendant Angles was responsible. For the purposes for which he is employed, Angles appears to be unusually gifted. Besides giving exceptionally vivid descriptions of the races in progress, he is a critic of form and his advice on the prospects of the competing horses is highly valued by his listeners. Some of the witnesses found Angles' descriptions more instructive than a visit to the course, for from his platform on Taylor's land, and with his experience, he is better able to follow the different horses throughout the race than would be possible to a spectator on one of the stands". [F11]

In these circumstances the learned judge held that the case was one of damnum sine injuria. The question to be solved is, "How far can one person restrain another from invading the privacy of land which he occupies, when such invasion does not involve actual entry on the land?" (Professor Winfield, Law Quarterly Review, vol. 47, p. 24). The defendants contended that the law provides no remedy as their action did not fall within any classification of torts and that the plaintiff's remedy lay either in self-defence, e.g., raising the height of the fences round the course, or in an application to the legislature. It does not follow that because no precedent can be found a principle does not exist to support the plaintiff's right. Nuisance covers so wide a field that no general definition of nuisance has been attempted but only a classification of the various kinds of nuisance. Courts have always refrained from fettering themselves by definitions. "Courts of equity constantly decline to lay down any rule, which shall limit their power and discretion as to the particular cases in which such injunctions shall be granted or withheld. And there is wisdom in this course; for it is impossible to foresee all the exigencies of society which may require their aid and assistance to protect rights, or redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensable for the purposes of social justice in a great variety of cases, and therefore should be fostered and upheld by a steady confidence" (Story's Equity Jurisprudence, 1st Eng. ed. (1884), s. 959 (b), p. 625). "The common law has not proved powerless to attach new liabilities and create new duties when experience has proved that it is desirable. That this was so in the older days was due to the wide scope of the action upon the case. The action upon the case was enough to provide a remedy for any injurious action causing damage...When relationships come before the courts which have not previously been the subject of judicial decision the court is unfettered in its power to grant or refuse a remedy for negligence. The action on the case for negligence has no limits set upon its territory, save by previous decisions upon such specific relationships as have come before the courts." (Salmond on Torts, 9th ed. (1936) (Stallybrass), pp. 18, 19; cf. Pollock, Torts, 13th ed. (1929), p. 22). An action on the case in the nature of nuisance was one of the flexible remedies capable of adaptation to new circumstances falling within recognized principles. This case presents the peculiar features that by means of broadcasting-a thing novel both in fact and law-the knowledge obtained by overlooking the plaintiff's racecourse from the defendants' tower is turned to account in a manner which impairs the value of the plaintiff's occupation of the land and diverts a legitimate source of profit from its business into the pockets of the defendants. It appears to me that the true issue is whether a non-natural use of a neighbour's land made by him for the purpose of obtaining the means of appropriating in this way part of the profitable enjoyment of the plaintiff's land to his own commercial ends-a thing made possible only by radio-falls within the reason of the principles which give rise to the action on the case in the nature of nuisance. There is no absolute standard as to what constitutes a nuisance in law. But all the surrounding circumstances must be taken into consideration in each case. As regards neighbouring properties their interdependence is important in arriving at a decision in a given case. An improper or non-natural use or a use in excess of a man's right which curtails or impairs his neighbour's legitimate enjoyment of his property is "tortious and hurtful" and constitutes a nuisance. A man has no absolute right "within the ambit of his own land" to act as he pleases. His right is qualified and such of his acts as invade his neighbour's property are lawful only in so far as they are reasonable having regard to his own circumstances and those of his neighbour (Law Quarterly Review, vol. 52, p. 460; vol. 53, p. 3). The plaintiff's case must, I am prepared to concede, rest on what is called nuisance. But it must not be overlooked that this means no more than that he must complain of some impairment of the rights flowing from occupation and ownership of land. One of the prime purposes of occupation of land is the pursuit of profitable enterprises for which the exclusion of others is necessary either totally or except upon conditions which may include payment. In the present case in virtue of its occupation and ownership the plaintiff carries on the business of admitting to the land for payment patrons of racing. There it entertains them by a spectacle, by a competition in the comparative merits of racehorses, and it attempts by all reasonable means to give to those whom it admits the exclusive right of witnessing the spectacle, the competition and of using the collated information in betting while that is possible on its various events. This use of its rights as occupier is usual, reasonable and profitable. So much no one can dispute. If it be true that an adjacent owner has an unqualified and absolute right to overlook an occupier whatever may be the enterprise he is carrying on and to make any profitable use to which what he sees can be put, whether in his capacity of adjacent owner or otherwise, then to that extent the right of the occupier carrying on the enterprise must be modified and treated in law as less extensive and ample than perhaps is usually understood. But can the adjacent owner by virtue of his occupation and ownership use his land in such an unusual way as the erection of a platform involves, bring mechanical appliances into connection with that use, i.e., the microphone and land line to the studio, and then by combining regularity of observation with dissemination for gain of the information so obtained give the potential patrons a mental picture of the spectacle, an account of the competition between the horses and of the collated information needed for betting, for all of which they would otherwise have recourse to the racecourse and pay? To admit that the adjacent owner may overlook does not answer this question affirmatively. The Silver Fox Case [F12] shows that an adjoining owner may not fire a gun in the breeding season so as to interfere with his neighbour's usual or normal use of his land. The besetting cases indicate that at common law the concert of others is a material factor. Eavesdropping suggests that at common law calculated overhearing differs from the casual sort. The steward of a court leet in charging the jury was wont to charge them: "You shall inquire of and present...(among other evil members and persons of ill behaviour)...the evesdropper, i.e., he that doth hearken under windows and the like, to heare and then tell newes to breed debate between neighbours...all these may be amerced, and be bound to the good behaviour by a justice of peace" (The Court-Keepers' Guide, William Sheppard (1649), pp. 47-49; see also Blackstone, Commentaries, 4th ed., Bk. 4, c. 13, p. 169).

There can be no right to extend the normal use of his land by the adjoining owner indefinitely. He may within limits make fires, create smoke and use vibratory machinery. He may consume all the water he finds on his land, but he has no absolute right to dirty it. Defendants' rights are related to plaintiff's rights and each owner's rights may be limited by the rights of the other. Sic utere tuo is not the premise in a syllogism but does indicate the fact that damnum may spring from injuria even though the defendant can say: "I am an owner." All the nuisance cases, including in that category Rylands v Fletcher, [F13] are mere illustrations of a very general principle "that law grows and...though the principles of law remain uncharged, yet (and it is one of the advantages of the common law) their application is to be changed with the changing circumstances of the times. Some persons may call this retrogression, I call it progression of human opinion" (R. v Ramsay and Foote, [F14] at p. 735). I adapt Lord Macmillan's words and say: "The categories of `nuisance' are not closed" (Donoghue v Stevenson, [F15] at p. 619). Nuisance is not trespass on the case and physical or material interference is not necessary. The "vibration" cases and the "besetting and eavesdropping" cases are certainly against such a contention. What appears to me to be the real point in this case is that the right of view or observation from adjacent land has never been held to be an absolute and complete right of property incident to the occupation of that land and exercisable at all hazards notwithstanding its destructive effect upon the enjoyment of the land overlooked. In the absence of any authority to the contrary I hold that there is a limit to this right of overlooking and that the limit must be found in an attempt to reconcile the right of free prospect from one piece of land with the right of profitable enjoyment of another. The unreported case of the Balham dentist mentioned by Professor Kenny in his Cases on the Law of Tort, 4th ed. (1926), p. 367, would, if correctly decided, be discreditable to English law. This is what Professor Winfield, in an article on Privacy, Law Quarterly Review, vol. 47, at p. 27, says: "A curious invasion of privacy, recorded by the late Professor Kenny, was a case of 1904 in which a family in Balham, by placing in their garden an arrangement of large mirrors, were enabled to observe all that passed in the study and operating room of a neighbouring dentist, who sought in vain for legal protection against `the annoyance and indignity' to which he was thus subjected. This is all that is given of the case, and, as there is no further reference, it is worthless as an authority. Why should it not have been actionable as a nuisance? It was something very like watching and besetting the dentist's house so as to compel him to do or not to do something which he was lawfully entitled not to do or to do; and this was held to be a common law nuisance in Lyons & Sons v Wilkins. [F16] Subsequent trade union legislation may have affected the decision in that case, but not the principle underlying it, which is that such conduct seriously interferes with the ordinary comfort of human existence and the ordinary enjoyment of the house beset. Indeed, the Balham family behaved worse than the defendants in Lyons' Case, [F17] for there was some economic excuse for the acts of the trade union officials there, while none whatever existed in the Balham case." In 1904 the unneighbourly neighbours of Balham were forced to adopt an elaborate system of mirrors to vent their ill feeling. But it is easy to believe that half a century later they would be able to do all they desired by means of television. Indeed the prospects of television make our present decision a very important one, and I venture to think that the advance of that art may force the courts to recognize that protection against the complete exposure of the doings of the individual may be a right indispensable to the enjoyment of life. For these reasons I am of opinion that the plaintiff's grievance, although of an unprecedented character, falls within the settled principles upon which the action for nuisance depends. Holding this opinion it is unnecessary for me to discuss the question of copyright raised in the case.

I think that the appeal should be allowed.