SO. No. Profit or any notion of unjust enrichment is totally irrelevant, certainly in Australia (see Hospitality Products Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040, (2001) 110 FCR 157). It’s all about the loss and damage (because common law tort). That case involved ticket scalping - third-party companies on-selling tickets to Rugby games, in breach of the terms on the tickets. ARU wanted to make the third-party companies disgorge their profit; a majority of the FCA found there was no account of profits.
Hence you just have to show - (1) the third-party tried to directly induce or procure the breaching party away and *caused damage* to the non-breaching party; (2) the third party did so knowingly (not necessary to show malice); (3) that there was no “justification” (a very ill-defined defence). Generally the remedy is an injunction restraining the breach or damages “at large” for loss (including things like aggravated or exemplary damages).
P.S. you know the questions to ask to get me all perky at 7:30am.
Yes. So it comes from Viscount Simon in Crofter Hand-Woven Harris Tweed, who gives the example of a father who justifiably persuades his daughter not to marry a ‘scoundrel’. That shows you how stupid it is. HCA has said it should be construed narrowly.
Oh yay, I was so disappointed that I couldn’t attend but now I am delighted that I get to read the substance of your presentation!
Really hope you enjoy it! 🥰
This is fascinating :).
Is it an element of the tort to derive some profit from the inducement? And does the inducement itself have to be for the enrichment of the inducee
SO. No. Profit or any notion of unjust enrichment is totally irrelevant, certainly in Australia (see Hospitality Products Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040, (2001) 110 FCR 157). It’s all about the loss and damage (because common law tort). That case involved ticket scalping - third-party companies on-selling tickets to Rugby games, in breach of the terms on the tickets. ARU wanted to make the third-party companies disgorge their profit; a majority of the FCA found there was no account of profits.
Hence you just have to show - (1) the third-party tried to directly induce or procure the breaching party away and *caused damage* to the non-breaching party; (2) the third party did so knowingly (not necessary to show malice); (3) that there was no “justification” (a very ill-defined defence). Generally the remedy is an injunction restraining the breach or damages “at large” for loss (including things like aggravated or exemplary damages).
P.S. you know the questions to ask to get me all perky at 7:30am.
I’m sorry. Is “no justification” not just a way of saying “we don’t like it?”
Yes. So it comes from Viscount Simon in Crofter Hand-Woven Harris Tweed, who gives the example of a father who justifiably persuades his daughter not to marry a ‘scoundrel’. That shows you how stupid it is. HCA has said it should be construed narrowly.
Kinda find this very annoying...
It is so annoying. I argued that it should be abolished or reformed. Because “we don’t like it” is not a sound reason.
Wow! I did not know of the medieval origins of breach of contracts! Thank you for sharing this wonderful piece :-)