| From: | Elise Diane Bant <e.bant@unimelb.edu.au> |
| To: | Neil Foster <Neil.Foster@newcastle.edu.au> |
| Jason Neyers <jneyers@uwo.ca> | |
| CC: | obligations@uwo.ca |
| Date: | 20/04/2010 00:16:35 UTC |
| Subject: | RE: ODG: Competition vs Extortion |
Dear Jason and Neil,
When we were looking at lawful act duress
cases in Unjust Enrichment in Australia,
Jamie Edelman and I concluded that the line is drawn where the threat and goal
are disproportionate (or unrelated to) one other. A classic is the threat ‘I’ll
reveal your personal secrets unless you confer X benefit on me’. But
there are other examples, such as Unwin v
Leaper (threat to commence civil proceedings with respect to one
matter to compel settlement in relation to another, unrelated matter) and Smith
v Cuff (creditor threatens to enforce a debt unless the debtor agreed to pay an
additional amount). In cases of economic lawful act duress, courts will be
reluctant to find that the lawful pressure is disproportionate to commercial
goals, unless the threat or coercing conduct is non-commercial in nature (a threat
to foster rumours about a company is one possible example, see Equiticorp (1992) 29 NSWLR 260). And a
threat not to contract will almost always, one would think, constitute
proportionate conduct: see eg the old Australian case of Smith v William Charlick (1924) 34 CLR 38.
CTN Cash and Carry can also be
understood on this basis.
Best wishes,
Elise
Associate Professor Elise Bant
The
Telephone:(int)+(03)8344 1085
From:
Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Tuesday, 20 April 2010 9:55
AM
To: Jason Neyers
Cc: obligations@uwo.ca
Subject: Re: ODG: Competition vs
Extortion
Dear Jason;
My quick reaction is that it all depends on what you mean by
"extortion". The tort of "causing loss by unlawful means"
as expounded in ODG v Allan covers
threats to do unlawful stuff, so I assume you are referring to pressure
exerted (by one person to avoid the complications of conspiracy torts) by
lawful means. Do you mean the classical "blackmail" case- "I
will reveal details of your sexual indiscretions unless you pay me money"?
Actually since the development of the action for breach of confidence
relating to personal privacy- Hello,
Campbell, etc- one might argue that what is being proposed here
would be "unlawful" in some civil sense, even if not technically
"tortious". But let us assume that the person making the threat is
proposing to do something lawful. For a large customer to say to a
supplier "I will withdraw my custom unless you change certain features of
the product" doesn't sound like extortion.
Perhaps it would help if you gave an example of the type of extortion
you are thinking of, when it is "always a wrong".
Regards
Neil
On 20/04/2010, at 3:22 AM, Jason Neyers wrote:
Colleagues:
I was wondering if anyone had a view on the following. I am trying to pinpoint
the difference on a conceptual level between competition as envisaged in a case
like Mogul Steamships and extortion/lawful act duress. In a case like
Mogul the defendant injures someone else financially in order to bring about a
profit for himself and the court concludes that so long as the defendant's
ultimate gain is primary goal then there is no liability. In an extortion case,
the defendant threatens to injure someone else financially in order to bring
about a profit for himself yet this is always a wrong even if the defendant's
primary goal is his or her gain. What explains the difference between the
two? Does anyone have any thoughts?
Sincerely,
--
Jason Neyers
Associate Professor of Law
Faculty of Law
N6A 3K7
(519) 661-2111 x. 88435
Neil Foster
Senior Lecturer, LLB Program Convenor,
MC158,
ph 02 4921 7430 fax 02 4921 6931