McKernan v Fraser [1931] HCA 54

McKernan v Fraser [1931] HCA 54

The 'picking-up' did not constitute a contract of engagement; therefore, there was no contract for the defendant to induce breach of. No strike occurred within the meaning of the Industrial Code, as the refusal was to begin new employment, not a cessation of work. The union's and defendant's actions were to advance their own interests, not to intentionally harm the plaintiffs for its own sake; thus, conspiracy to injure was not established.

Parties
Appellant; Defendant: Peter McKernan; Respondents; Plaintiffs: Fraser and Stapleton
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment on Appeal From Supreme Court of South Australia to High Court of Australia
Outcome
Appeal allowed
Legal Topics
Conspiracy to Injure, Industrial Dispute, Strike Definition, Contract Formation, Union Conduct, Malicious Procurement of Breach, Damages for Loss of Employment
Labour Law Torts Industrial Law Conspiracy to Injure Industrial Dispute Strike Definition Contract Formation Union Conduct +2 more

Case Brief

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Parties

Peter McKernan

Appellant; Defendant

Fraser and Stapleton

Respondents; Plaintiffs

Procedural Posture

Appeal / Judgment on Appeal From Supreme Court of South Australia to High Court of Australia

Legal Issues

  1. 1 Whether the 'picking-up' or selection of seamen amounted to a contract of employment.
  2. 2 Whether refusal by union members to work with selected men constituted a strike or unlawful act under the Industrial Code 1920 (S.A.).
  3. 3 Whether combined action by the union constituted an actionable conspiracy to injure the plaintiffs.

Ratio Decidendi

The 'picking-up' did not constitute a contract of engagement; therefore, there was no contract for the defendant to induce breach of. No strike occurred within the meaning of the Industrial Code, as the refusal was to begin new employment, not a cessation of work. The union's and defendant's actions were to advance their own interests, not to intentionally harm the plaintiffs for its own sake; thus, conspiracy to injure was not established.

Court Disposition

Appeal allowed

Orders

  • Judgment of the Supreme Court discharged.
  • Appeal from Local Court allowed with costs.