Dear Colleagues,

I forward this on in the knowledge that it will be of interest to many of you and in case it has slipped you attention over the Christmas and New Year Period.

Best Wishes,

Kit Barker

Friday, January 16, 2015, 1:56pm

In the latest development in Boral's bid to recover millions in damages from the CFMEU over bans on supplying concrete to building sites, the union will seek special leave from the High Court to challenge the Victorian Court of Appeal's ruling that the tort of intimidation continues to be part of Australia's common law.

The company is seeking damages on the basis that the union committed the tort of intimidation when it imposed the bans on supplying concrete, initially as part of the union's blockade of Grocon's Myer Emporium project in 2012.

The union argued before a five-member bench of the Court of Appeal that case law since the NSW Court of Appeal's 1971 ruling in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia no longer recognised the tort of intimidation as part of Australian law.

In the landmark Sid Ross case the court found "strong authority for the proposition” that parties intending to injure or damage another party by threatening to take unlawful action against a third party are open to legal action by the party they intend to hurt.

The CFMEU mainly relied on the High Court's 1995 judgment in Northern Territory v Mengel and the House of Lords ruling in OBG Limited v Allan, arguing that those cases had changed the law of torts to such an extent that the intimidation tort was now excluded from Australian common law.

The union told the full bench that Victorian Supreme Court Associate Justice Mark Derham had failed to fully deal, in his judgment in September last year, with its argument that Sid Ross was plainly wrong and should not be followed.

But the full bench rejected the CFMEU's arguments, saying "none of the matters" they relied on cast any doubt on the correctness of Sid Ross.

It said the reasons in OBG also provided "nothing" to undermine the cause of action for intimidation described by Justice Anthony Mason in Sid Ross.

The bench said the fact that intimidation now might be considered to be "a subset of the broader tort recognised in England (but not in Australia) does not — and logically could not — produce the conclusion that the narrower cause of action, described as the tort of intimidation, either no longer exists or rests on an invalid foundation".

It said the CFMEU was correct in asserting that there has been no development of a substantial body of case law on the intimidation tort.

But it said there had been two Victorian appeal court rulings that had relied on the tort to find liability – the 1985 Dollar Sweets interlocutory judgment and in Ansett Transport Industries v Australian Federation of Air Pilots in the early 1990s.

The union also sought that the appeal court decide whether the broader tort of unlawful interference with business – which includes the tort of intimidation - is part of Australian common law.

But the bench refused, saying that was "a decision which could only be made by the High Court".

It said that rejection of the broader tort "would entail the de-recognition of the tort of intimidation, the existence of which has been recognised by the High Court as recently as October this year".

CFMEU v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 348 (19 December 2014)

Dr Paul Harpur

BBus (HRM), LLB (Hons), LLM, PhD, Solicitor of the High Court of Australia (non-practicing)

Lecturer, the TC Beirne School of Law, The University of Queensland.

Special Adviser, IRIQ.

Tele:       +61 7 3365 8864

Mob:      + 61 417 635 609

E-Mail:   p.harpur@law.uq.edu.au<mailto:p.harpur@law.uq.edu.au>

Skype:    paul.harpur

My academic profile page can be accessed at: http://www.law.uq.edu.au/academic-staff/staff.php?nm=paulharpur

Details on my publications can be found on SSRN at: http://ssrn.com/author=1380517