Between: VICTORIA PARK RACING AND RECREATION GROUNDS CO LTD
And: TAYLOR

Judges: Latham CJ
Rich J
Dixon J
Evatt J

McTiernan J

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

SYDNEY

Judgment by:
McTIERNAN J

In my opinion the appeal should be dismissed. The facts upon which the plaintiff grounds its claim to restrain the broadcasting of descriptions of the races on its racecourse from the platform on the land of the defendant Taylor commence with the steps which it took, namely, fencing and the imposition of conditions on the right to enter the racecourse, to make the enjoyment of the races exclusive to persons whom it admitted to the racecourse. The platform on Taylor's land was erected high enough to enable a person standing on it to see the races and the information posted by the plaintiff on its notice boards on the course for the benefit of its patrons. The platform was equipped with a telephone communicating with the broadcasting apparatus of the defendant company. Even if, upon a comparison with other buildings in the locality, the structure holding this platform with its broadcasting equipment might be regarded as peculiar or unusual, Taylor had a right to have it erected and it was not actionable for Taylor or his licensee to invade the privacy of the racecourse by looking at the races from this vantage ground (Tapling v Jones ^[F48] ). So much, indeed, appears to have been conceded by the plaintiff, for it does not claim a mandatory injunction for the removal of the platform from Taylor's land or for removing the broadcasting equipment from it. The relief which the plaintiff claims is in effect limited to an injunction restraining the broadcasting of any description of the races.

The only consequence detrimental to the plaintiff which the broadcasting of which it complains was proved to bring about was that a number of persons who would have paid for admission to the race meetings preferred to remain away from the racecourse while the race meetings were being held, and to listen to the vivid descriptions of them given by the defendant Angles from the raised platform on Taylor's land as they were being broadcast by the defendant company. The fact that so many people prefer radio entertainment producing the excitement of the spectacle to seeing the spectacle at first hand has, it is true, resulted in the plaintiff losing profits which it would otherwise have made from conducting the race meetings. And if the drop in the number of persons who are willing to pay for admission has been reflected in a fall in the value of the land, this must be because the broadcasting affects the goodwill of the racecourse and not because it damages the land. It is not shown that the broadcasting interferes with the use and enjoyment of the land or the conduct of the race meetings or the comfort or enjoyment of any of the plaintiff's patrons. Indeed, it appears quite impossible that any such result would be caused by the action of Angles in standing on this platform aloof from the racecourse, observing the races and talking into a microphone or telephone. The principle upon which liability for acts in the nature of nuisance is founded is not to be restrained by the instances in which that liability has been found to exist. The list of acts which may give rise to an action on the case in the nature of nuisance is not closed against broadcasting. But to broadcast a lawful description of what is happening on premises cannot be an actionable nuisance at least unless it causes substantial interference with the use and enjoyment of the premises. It is conceivable that broadcasting may be made an adjunct to conduct constituting the actionable nuisance of watching and besetting premises, the nature of which is discussed in J. Lyons & Sons v Wilkins ^[F49] ). But no facts are proved to bring the broadcasting of which the plaintiff complains within the scope of the principle which was applied in that case.

"It is essential to an action in tort that the act complained of should under the circumstances, be legally wrongful as regards the party complaining: that is, it must prejudicially affect him in some legal right; merely that it will, however directly, do him harm in his interests is not enough" (Rogers v Rajendro Dutt ^[F50] ).

To allege simply that the defendants broadcast a description of a spectacle undertaken by the plaintiff on land in the sole possession of the plaintiff and that the plaintiff thereby lost profits which it would otherwise have made from the undertaking and that the value of the land was diminished, does not state a cause of action in tort. There is no averment of a wrongful act any more than if the plaintiff were to allege that the defendants saw the spectacle and described it to a gathering of bystanders. It is essential to an action on the case in the nature of nuisance to prove that the acts complained of infringe a legal right of the plaintiff. The loss of profits and the diminution in the value of the land are set up here by the plaintiff both as the injuria and the damnum. In Soltau v De Held, ^[F51] at p. 301 Kindersley V.C. made these observations:

"Then it is said that part of what is alleged by the plaintiff as the mischief arising to him is the diminution in value of his house; and it is said, and with perfect truth, by the defendant's counsel, that diminution in value does not constitute nuisance, and is no ground for the court's interfering."

To the like effect was the statement of Bacon V.C. in Harrison v Good, ^[F52] at p. 353:

"I would not have it supposed that I am not perfectly sensible of the great disadvantage which will happen to the plaintiff, Mr. Dangerfield, if this school should be established in the place where it is proposed. I have no doubt that the value of his property will be depreciated. But the case which was referred to, and very properly referred to, is by no means an authority for the proposition that, because a depreciation in value would take place, the owners of adjoining property suffering depreciation have therefore a right to call that a `nuisance' which they fail to prove otherwise to be a nuisance."

In Hammerton v Dysart ^[F53] Lord Parker said:

"Nuisance, then, involves damage, but damage alone is not sufficient to give rise to a right of action."

It was not a legal right of the plaintiff always to be able to carry on its undertaking without loss of profits or not suffer any diminution in the value of its land. The plaintiff took steps to secure that the entertainment to be got from following the fate of the horses running on its racecourse should be restricted to persons whom it admitted. In the circumstances existing before the parasitical substitute of which it complains was transmitted from the platform on Taylor's land, the racecourse had apparently enjoyed a measure of exclusiveness such as was conducive to the profitable conduct of the business. But the plaintiff took the risk of a change in those circumstances (Cf. Hopkins v Great Northern Railway Co, ^[F54] at p. 234).

The plaintiff laid great stress on the maxim sic utere tuo ut alienum non laedas. The principle underlying the action on the case in the nature of nuisance is the same as that embodied in this maxim (Hammerton v Dysart ^[F55] ). It is essential for the application of this maxim that a wrongful act is committed and damage is sustained. " `Alienum' must be taken to mean `the rights of the neighbouring owner' " (Gale on Easements, 8th ed. (1908), at pp. 416, 417). "If a man sustains damage by the wrongful act of another, he is entitled to a remedy; but to give him that title these two things must concur, damage to himself, and a wrong committed by the other. That he has sustained damage is not of itself sufficient" (R. v Commissioners of Sewers for the Levels of Pagham, ^[F56] at p. 1077). Referring to the maxim sic utere tuo ut alienum non laedas in West Cumberland Iron and Steel Co v Kenyon, ^[F57] at pp. 787, 788, Brett L.J. said:"The cases have decided that where that maxim is applied to landed property, it is subject to a certain modification, it being necessary for the plaintiff to show not only that he has sustained damage, but that the defendant has caused it by going beyond what is necessary in order to enable him to have the natural user of his own land. If the plaintiff only shows that his own land is damaged by the defendant's using his land in the natural manner, he cannot succeed. So he must fail if he only proves that the defendant has used his land otherwise than in the natural way, but does not prove damage to himself." The use which Taylor and his licensee are making of Taylor's land may be quite impudent. But it was in the course of the natural user of his land for Taylor to have the platform erected on his land from which Angles speaks. And I cannot think that Taylor is going beyond the natural user of the land in allowing his licensee Angles to talk into the telephone or microphone on the platform and give a description of the races and the information exhibited on the racecourse to the members of the public who wish to listen (Cf. Chasemore v Richards ^[F58] ). Upon the facts proved none of the defendants is liable to be sued in an action on the case for nuisance. The plaintiff has failed to establish its claim to an injunction on the ground of an alleged nuisance or a breach of the legal relation of neighbourliness expressed by the maxim sic utere tuo ut alienum non laedas. In Soltau v De Held ^[F59] Kindersley V.C. said: "Now it is true that equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law: there is no such thing as an equitable nuisance."

Passing from the question of nuisance the plaintiff would, of course, be entitled to redress if the broadcasting violated any right residing in it. In Hannam v Mockett, ^[F60] at p. 630 Bayley J. said:"To maintain an action, the plaintiff must have had a right and the defendant must have done a wrong. A man's rights are the rights of personal security, personal liberty, and private property. Private property is either property in possession, property in action or property that an individual has a special right to acquire....A man in trade has a right in his fair chances of profit, and he gives up time and capital to obtain it. It is for the good of the public that he should." But the element of exclusiveness is missing from the plaintiff's right in the knowledge which the defendants participate in broadcasting. It was competent for the plaintiff to impose a condition on the right it granted to any patron to enter the racecourse that he would not communicate to anyone outside the racecourse the knowledge about the racing which he got inside. It would be actionable for a patron to break this condition or for any person to induce him to break his contract by disclosing the knowledge with a view to it being broadcast (Exchange Telegraph Co Ltd v Central News Ltd ^[F61] ). But where the communication is not in breach of contract and there is no proof that what is communicated comes "from a source which could not honestly be made use of" its dissemination is not a matter in respect of which the court can give any relief. Angles got the information first hand from a position of vantage outside the racecourse. The law does not reserve to the plaintiff the exclusive right to broadcast or otherwise disseminate that which formed the subject matter of the broadcasting complained of. The case of Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd, ^[F62] approved on appeal, ^[F63] illustrates the limits of the plaintiff's rights in the present case. "It is quite true that, as they were in possession of the spot where it would probably be convenient to place the camera for the purpose of photographing, they had the advantage, so far as the land in their possession was concerned, of being the only persons who could conveniently take photographs, but that is a very different thing from saying that they had the sole right to photograph anything inside the show. If any person were to be in a position, for example from the top of a house, to photograph the show from outside it, the association would have no right to stop him". ^[F64]

There is no substance in the contention that what is done by any of the defendants is an infringement of copyright.

In my opinion there are no legal principles which the court can apply to protect the plaintiff against the acts of the defendants of which it complains.

The judgment of Nicholas J. should, I think, be affirmed.