Seeds, Weeds and Unlawful Means: Negligent Infliction of Economic Loss and Interference with Trade and Business

The purpose of this article is to examine the decision of the High Court in Perre v Apand Pty Ltd (1999) 198 CLR 180 and subsequent cases and developments, including Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476; (2003) 215 CLR 317, Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2003] VSC 27 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 relating to the negligent infliction of pure economic loss and to compare the principles and policies identified in those cases with those in the 'genus' or 'innominate' tort of interference with trade and business by unlawful means. In this respect, Part I of the article will seek to examine the approach of the High Court to the determination of questions relating to the duty of care in cases of pure economic loss - in particular, the search for a universal approach or methodology and the 'factors' or 'salient features' indicative of the duty in such cases. Part II will examine the unlawful interference tort with particular emphasis on the 'unlawful means' and 'intention' elements of the tort. Assistance will also be drawn from relevant concepts in the tort of interference with contractual relations. In Part III, comparisons between the operation of various concepts in the negligence tort and the intentional torts under consideration will be drawn and distinctions and overlapping concepts highlighted, in particular in relation to the knowledge requirements and the operation of unlawful or otherwise illegitimate conduct. The article will conclude that, on account of conceptual and practical difficulties, these intentional torts should remain separate and distinct from the negligence framework and not be subsumed within the negligence tort.