Supreme Court Of Victoria Recognises Tort Of Intimidation: Boral v CFMEU [2014] VSC 429
Tuesday 28 October 2014 @ 11.02 a.m. | Industrial Law | Torts, Damages & Civil Liability
The Supreme Court of Victoria has stated that the tort of intimidation is currently part of Australian common law in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 (“Boral”).
Derham AsJ found, as the High Court has not ruled on the matter, he was bound by precedent to follow the earlier decision of the New South Wales Court of Appeal in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 (“Sid Ross”), which recognised the tort, “unless I am persuaded that it is clearly wrong. I am not so persuaded” [Boral at 82].
Facts
The plaintiffs, who were all subsidiaries of Boral Ltd, sued the CFMEU alleging that the union had caused loss to the plaintiffs by imposing an industrial ban on building products supplied by Boral. The plaintiffs alleged that the union demanded that various Victorian Construction Principals and Subcontractors not use Boral products on construction projects. Allegedly, the union also threatened to procure workers working on the projects to refuse to work with Boral Products.
At [19] of Boral, Derham AsJ highlighted that if the actions were carried out they:
“would be unlawful because it would constitute a tort of procuring a breach of contract by the workers and would also constitute a secondary boycott contrary to s 45D of the Competition and Consumer Act 2010 (Cth).”
The plaintiffs stated that the demands were complied with, causing them loss or damage. The plaintiffs relied on two causes of action – the tort of intimidation and conspiracy by unlawful means. The CFMEU did not appear in the case until after a default judgment was entered against them on 20 May 2013. They then applied to have the judgment set aside, arguing various technical grounds, including that the tort of intimidation did not exist under Australian common law.
Decision
On the existence of the tort of intimidation, the CFMEU argued that the tort was not recognised in Australian law. However, Derham AsJ accepted the precedent in Sid Ross. In that case, the New South Wales court had found that the plaintiff, a theatrical agency which dealt with a number of clubs who booked its performers, had a cause of action against the defendants, who had threatened to picket any club which used the plaintiff. He found that Sid Ross and other authorities supported the tort of intimidation where the following three elements exist [at 83]:
“(a) That the defendant has made a demand coupled with a threat;
(b) That the threat is to commit an unlawful act; and
(c) That the person threatened complied with the demand thereby causing loss to the plaintiff.”
His Honour concluded that the statement of claim did allege these elements.
He also rejected the rest of the CFMEU’s arguments and refused to set aside the judgment.
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Sources:
Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 (10 September 2014)
Roger Neil Douglas, Dealing with Demonstrations: The Law of Public Protest and its Enforcement (Federation Press, 2004)
