Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Limited(ACN 004 620 731) and , Alsafe Premix Concrete Pty Ltd(ACN 003 290 999)and , Boral Bricks Pty Ltd(ACN 082 448 342)and , Boral..

[2014] VSCA 348

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0145

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION	Appellant
v
BORAL RESOURCES (VIC) PTY LIMITED (ACN 004 620 731) and	First Respondent
ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999) and	Second Respondent
BORAL BRICKS PTY LTD (ACN 082 448 342) and	Third Respondent
BORAL MASONRY PTY LTD (ACN 000 223 718) and	Fourth Respondent
BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976) and	Fifth Respondent
BORAL WINDOW SYSTEMS LTD (ACN 004 069 523)	Sixth Respondent

---

JUDGES:	MAXWELL P, NEAVE, REDLICH and BEACH JJA and KAYE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 December 2014
DATE OF JUDGMENT:	19 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 348
JUDGMENT APPEALED FROM:	Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 (Derham AsJ).

---

TORT – Common law of Australia – Intimidation – Existence of tort established by 1971 appellate decision – Whether still good law – Whether decision overtaken by subsequent decisions of High Court and House of Lords – Whether tort subsumed in broader tort of unlawful interference with business – No reason to doubt correctness of decision – Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association [1971] 1 NSWLR 76 applied – Northern Territory v Mengel (1995) 185 CLR 307, OBG Ltd v Allan [2008] 1 AC 1 considered – Appeal dismissed.
PRACTICE AND PROCEDURE – Appeal – Reference to Court of Appeal – Decision of Associate Justice – Appeal to Trial Division – Judge reserved appeal proceeding for consideration of Court of Appeal – Leave required – Respondents sought leave, appellant opposed – Whether appropriate for grant of leave – Single question of law – Inevitability of appeal – Advantages of multi-member bench – Leave granted – Supreme Court Act 1986 ss 17B(2), (3).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R M Doyle SC with Ms M J Richards SC and Ms P C Knowles	Herbert Smith Freehills
For the Respondents	Mr S J Wood QC with Mr D Ternovski	Slater and Gordon

MAXWELL P
NEAVE JA
REDLICH JA
BEACH JA

KAYE AJA:

Summary

1. This appeal raises a single question of law, namely, whether the tort of intimidation forms part of the common law of Australia.  The appeal, which is brought from the decision of an associate justice, was referred directly to this Court by a judge of the Trial Division.  Having regard to the importance of the question, a five member bench was constituted. 

1. As will appear, the appellant is the defendant in an action for damages brought by the respondents.  The respondents allege that the appellant has committed the tort of intimidation and/or conspired with others to commit the tort.  It is common ground that, unless the appeal succeeds, the appellant has no defence to the action.  Pending the outcome of the appeal, the trial of the action has been set down for hearing in March 2015, on the question of damages only.

1. At first instance, Derham AsJ rejected the appellant’s argument that the tort of intimidation did not form part of Australia’s common law.  For reasons which follow, we respectfully agree.  The appeal will therefore be dismissed.

Background

1. The respondents are each subsidiaries of Boral Limited.  The first and second respondents manufacture and supply concrete for use in the construction of buildings and other structures in Victoria, which, in the amended statement of claim, are referred to as ‘Victorian construction projects’.  The third respondent manufactures and supplies bricks, the fourth respondent manufactures and supplies masonry products, the fifth respondent manufactures and supplies plasterboard products, and the sixth respondent manufactures and supplies window products, each for use in Victorian construction projects. 

1. The appellant is registered under the Fair Work (Registration of Organisations) Act 2009 (Cth).  It is a national trade union with several divisions, one of which is the Construction and General Division, with State branches.  Its members include persons employed or engaged in construction work in connection with Victorian construction projects. 

1. In their amended statement of claim, the respondents allege that the appellant caused damage to them by imposing an industrial ban on concrete and other building products that the respondents supply to the Victorian construction projects.  The amended statement of claim pleads two causes of action, namely, the tort of intimidation, and the tort of conspiracy by unlawful means. 

1. The respondents plead that the appellant committed the tort of intimidation by demanding that Victorian construction principals and subcontractors not use Boral products in those projects.  That demand was alleged to have been accompanied by a threat that the appellant would procure workers, employed at the Victorian construction project sites, to refuse to work on those sites using Boral products. 

1. The amended statement of claim alleges that the threatened action, if carried out, would be unlawful, because it would constitute the tort of procuring a breach of contract by the workers and, in addition, it would constitute a secondary boycott, contrary to s 45D of the Competition and Consumer Act 2010 (Cth). The amended statement of claim further pleads that the construction principals and subcontractors at those sites complied with the demand made by the appellant, by declining to place orders for Boral products, thereby occasioning loss and damage to the respondents.

1. By their second cause of action, conspiracy by unlawful means, the respondents allege that the appellant conspired with its delegates to cause loss or damage to the respondents by committing the tort of intimidation.  It is pleaded that the delegates then committed that tort, causing loss or damage to the respondents. 

1. On 20 May 2013, the respondents entered interlocutory judgment, for damages to be assessed, in default of delivery of a defence.  The appellant subsequently applied by summons to have the interlocutory judgment set aside.  That application was made on a number of different grounds.  In a reserved decision, Derham AsJ dismissed the application.[1]

   [1]Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 (‘Reasons’).

1. The appellant then appealed the decision of Derham AsJ to a judge of the Trial Division. On 7 November 2014, on application by the respondents, Bell J reserved the appeal for consideration by this Court pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic).

1. The notice of appeal contained two grounds, but only one is now relied on.  That ground contends that Derham AsJ ‘erred in finding that the [amended statement of claim] discloses a cause of action under the Australian common law, namely, the tort of intimidation’.    

Application for leave under s 17B(3)(a) of the Supreme Court Act 1986

1. Before this Court could hear the appeal, leave was required under s 17B(3) of the Supreme Court Act 1986.  Having considered the written submissions filed, we granted leave at the commencement of argument.   The following are our reasons for doing so.

1. The respondents submitted that the question raised by the appeal was appropriate for determination by this Court.  In particular, it was said, the appeal involved the determination of one question, namely, whether the tort of intimidation existed in the Australian common law.  That was a pure question of law, and was of general application and public importance. 

1. The appellant’s challenge to the existence of the tort involved the issue of the correctness of the decision of an intermediate appellate court, as well as of decisions of single judges of a superior court.  In addition, it was submitted, this Court had the benefit of the analysis by Derham AsJ of the arguments advanced by the appellant against the existence of the tort.  The most convenient course was for the Court to grant leave.  Otherwise, the matter would be required to be remitted to the Trial Division from which, inevitably, it would find its way back through the appellate process. 

1. The appellant opposed the grant of leave.  Counsel for the appellant submitted that this Court did not have the benefit of a full consideration of the issues by the Trial Division.  Although the question of the existence of the tort of intimidation had been argued before Derham AsJ, it was only one of a number of issues debated before his Honour and did not receive detailed analysis or consideration.  In particular, it was said, Derham AsJ did not deal fully with the appellant’s argument that the decision of the New South Wales Court of Appeal in Sid Ross Agency Pty Ltd v Actors & Announcers Equity Association of Australia[2] was plainly wrong and should not be followed. 

   [2][1971] 1 NSWLR 760 (‘Sid Ross’).

1. In any case, it was submitted, the question raised by the appeal was suitable for determination by a single judge of the Trial Division, who could decide that a decision of an interstate appellate court was plainly wrong and should not be followed.[3]  There was no authority on the point which was binding on a single judge of the Court and which could only be overruled by the Court of Appeal.  Thus, it was submitted, there was no adequate reason for the appeal to bypass the Trial Division.  It was not sufficient that the appeal might involve questions which were difficult or of substantial importance to the parties or the public, or which might involve resolution of a conflict in the authorities.[4]

   [3]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (‘Farah Constructions’).

   [4]Collins v Black [1995] 1 VR 409, 410–11 (Brooking J), 419 (J D Phillips and Hansen JJ).

Conclusion

1. The principles relating to the grant of leave under s 17B(3) have been conveniently stated by the Full Court in Collins v Black,[5] and by this Court in De Simone v Bevnol Constructions & Developments Pty Ltd.[6]  Each application is to be determined according to its particular circumstances.  Relevant considerations include the difficulty of the question to be determined, its importance to the parties or the public, the existence of a conflict in authorities, and the inevitability of appeal from whatever decision is made at first instance.  None of these is determinative, however.  On the other hand, an important factor tending against the grant of leave is that the process would involve determination of an issue by the appellate court without the advantage of that issue having been defined and considered at first instance. 

   [5][1995] 1 VR 409, 410 (Brooking J), 419 (J D Phillips and Hansen JJ).

   [6](2010) 30 VR 200, 209 [38] (Redlich, Mandie and Hansen JJA); see also Hodgson v State of Victoria [1995] 2 VR 292, 297–8 (Tadgell J).

1. Taking into account all of these considerations, we concluded that it was appropriate to grant leave.  We accepted, as the appellant submitted, that we did not have the advantage of detailed consideration of the point at first instance.   Derham AsJ (correctly) concluded that it was not open to him to examine the correctness of the decision of the New South Wales Court of Appeal in Sid Ross,[7] since that decision had been followed and applied by Murphy J of the Supreme Court of Victoria in Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia.[8]  Nevertheless, in his detailed and careful reasons, his Honour determined a significant number of other issues, which are not the subject of this appeal, with the result that this appeal involved a single question of law. 

   [7][1971] 1 NSWLR 760.

   [8][1986] VR 383.

1. We accept that it would be open to a trial judge to decline to follow the decision of the New South Wales Court of Appeal in Sid Ross, if persuaded that it was plainly wrong.[9]  But that was not the appellant’s contention on the appeal.  Rather, it was contended that, since 1971 when Sid Ross was decided, the 1995 decision of the High Court in Northern Territory v Mengel[10] and the 2008 decision of the House of Lords in OBG Ltd v Allan[11] had so altered the law of torts at common law that the cause of action in intimidation could no longer being viewed as forming part of the Australian common law. 

   [9]Farah Constructions (2007) 230 CLR 89, 151–2 [135].

   [10](1995) 185 CLR 307 (‘Mengel’).

   [11][2008] 1 AC 1 (‘OBG’).

1. It was our view that such a proposition was better suited to consideration by an appellate bench, rather than by a trial judge sitting alone.  In such a case, the advantages of a multi-member bench are obvious.   

1. Finally, in our view, the grant of leave had the advantages of convenience and expedition.  Since the fate of the proceeding depends on the answer to the question of law, any decision by a single judge would almost certainly have been appealed.  This procedure avoids the intermediate step. 

Submissions on the substantive appeal

1. The conclusion reached by Derham AsJ — that the tort of intimidation was part of the common law in Australia — was based on the decision in Sid Ross[12] and, in particular, on the following passage from the judgment of Mason JA (with whom Jacobs and Holmes JJA agreed):

Whether the cause of action be described as the separate tort of intimidation or not, there is strong authority for the proposition that if A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his legal right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C.[13]

[12][1971] 1 NSWLR 760.

[13]Ibid 766.

1. Counsel for the appellant submitted that the decision in Sid Ross should not be followed, as the tort of intimidation could no longer be regarded as part of the Australian common law.  That submission was based on two principal contentions. 

1. First, counsel noted that Mason JA had based his reasoning, in part, on the decision of the High Court in Beaudesert Shire Council v Smith.[14]   In that case, the Court identified a separate cause of action in tort available to a person who suffered harm or loss as the inevitable consequence of the unlawful, intentional or positive acts of another.  As counsel for the appellant noted, the High Court in its subsequent decision in Mengel[15] held that the decision in Beaudesert should be overruled as being wrong in law.

   [14](1966) 120 CLR 145 (‘Beaudesert’).

   [15](1995) 185 CLR 307.

1. The second principal contention was that the tort of intimidation, as articulated by the New South Wales Court of Appeal in Sid Ross, otherwise depended entirely on the 1964 decision of the House of Lords in Rookes v Barnard.[16]  The tort, as defined by the House of Lords in that case, had subsequently been subsumed in the United Kingdom in a broader tort of unlawful interference with business (‘the broader tort’).  According to the submission, the broader tort had not been, and should not be, recognised as part of the common law of Australia.  

   [16][1964] AC 1129 (‘Rookes’).

1. Counsel noted that in OBG[17] the House of Lords reviewed the developing area of economic torts in English law which, at that stage, included the tort of inducing a breach of contract and the tort of causing loss by unlawful means.  The House gave express recognition to a cause of action in tort where the defendant had intentionally caused loss and damage to the plaintiff’s business by unlawful means.  The members of the House of Lords considered that the tort of intimidation as described in Rookes was properly to be understood as a ‘variant’ or subset of the broader tort.[18]  On the other hand, counsel pointed out, the High Court in Sanders v Snell[19] had declined to decide whether the broader tort — which was then developing in the United Kingdom — should be recognised in Australia.[20]

   [17][2008] 1 AC 1.

   [18]OBG [2008] 1 AC 1, 19–20 [7] (Lord Hoffman), 53–5 [143]–[149] (Lord Nicholls).

   [19](1998) 196 CLR 329, 341–44 [30]–[36].

   [20]See also Mengel (1995) 185 CLR 307, 336-7; Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117; [2001] QCA 342 [18]–[25] (McMurdo P), [74] (Williams JA).

1. The appellant’s submission went much further, however.  It was submitted that this Court should rule definitively that the broader tort discussed in OBG[21] was not part of the common law of Australia. It was submitted that the constitutional and statutory regimes, in which the tort had developed in England, were and are substantially different from those in Australia. In particular, the federal system of industrial relations in Australia had no English equivalent. Further, statutory regulation of secondary boycotts had occurred at different times, and in quite different forms, in the two jurisdictions. In Australia, secondary boycotts have been the subject of statutory regulation since 1977, when s 45D (of what is now the Consumer and Competition Act 2010 (Cth)) was first inserted into the Trade Practices Act 1974 (Cth).

   [21][2008] 1 AC 1.

1. Acceptance of that submission would, it was said, have a very significant corollary, as follows.  Once it was concluded that the broader tort did not exist in Australian law, it would follow necessarily that the tort of intimidation did not exist.  This was said to be the consequence of the latter now being understood to be merely a subset of the former.  If the broader tort did not exist, then the subset did not exist either. 

1. Following a short adjournment, we informed counsel for the appellant that no further argument would be entertained in support of this submission.  We stated that, in our view, it was not open to this Court to rule that the broader tort was not part of Australian law.  Our reasons for that conclusion may be shortly stated. 

1. As already noted, the question of the existence of the broader tort has been the subject of consideration by the High Court.  To date, that Court has declined to decide whether the broader tort should be recognised as part of Australian law.   The definitive decision which the appellant seeks — that the broader tort is not part of the common law of Australia — is a decision which could only be made by the High Court.  That is especially so in view of the asserted corollary, that is, 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.[22]

   [22]See [53] below.

1. We return to the narrower submission.  As noted, the appellant relied on the fact that the House of Lords in OBG[23] had explained the jurisprudential basis of the tort of intimidation as part of the broader tort, which is not recognised in Australia.  Thus, it was submitted, the decision of the House of Lords in OBG had deprived the decision in Sid Ross[24] of its foundational authority, the decision in Rookes.[25]

   [23][2008] 1 AC 1.

   [24][1971] 1 NSWLR 760.

   [25][1964] AC 1129.

1. Counsel for the appellant further noted that Mason JA had described the decision of the House of Lords in Rookes as part of an ‘impressive body of authority’ in support of the tort of intimidation.  Those authorities included the subsequent decision of the House of Lords in JT Stratford & Son Ltd v Lindley,[26] and the decisions of the Court of Appeal in Morgan v Fry[27] and Torquay Hotel Ltd v Cousins.[28]  Counsel submitted that, when properly analysed, none of those three decisions provided other than passing support for the existence of the tort. 

   [26][1965] AC 269.

   [27][1968] 2 QB 710.

   [28][1969] 2 Ch 106.

1. In response, senior counsel for the respondents submitted that the decision in Sid Ross remained good law.  First, he submitted, the decision of the High Court in Beaudesert[29] was neither the sole, nor even a principal, authority on which the Court of Appeal had relied in Sid Ross.  Rather, Mason JA relied on a substantial body of authority establishing the tort of intimidation as far back as the 17^th and 18^th centuries. 

   [29](1966) 120 CLR 145.

1. In addition, it was submitted, although the High Court in Mengel[30] had overruled its earlier decision in Beaudesert,[31] the decision in Mengel[32] did not cast doubt on the continued existence of the tort of intimidation.  On the contrary, the High Court in Mengel overruled Beaudesert because the tort which it recognised was not based on either negligence or an intention to harm the plaintiff.  In that way, the Court had specifically distinguished the Beaudesert tort from the tort of intimidation, noting that the latter tort did require, as an essential element, proof of an intention to injure the plaintiff.[33]

   [30](1995) 185 CLR 307.

   [31](1966) 120 CLR 145.

   [32](1995) 185 CLR 307.

   [33]Mengel (1995) 185 CLR 307, 342.

1. Counsel for the respondents further submitted that the contentions made by the appellant, based on the decision of the House of Lords in OBG,[34] did not lead logically to the conclusion that the tort of intimidation no longer existed in Australia.  It was true that the broader tort recognised in OBG had yet to be recognised in Australia.  But that lack of recognition did not mean that the more narrowly defined tort of intimidation had ceased to be part of the common law of Australia.  In that respect, counsel noted, the tort had been recognised in a number of subsequent decisions of Australian superior courts.[35]

   [34][2008] 1 AC 1.

   [35]See, eg, Shaw v Minister for Families, Housing, Community Services & Indigenous Affairs (2009) 110 ALD 552, 574 [100]–[102]; Habib v Commonwealth (No 2) (2009) 175 FCR 350, 357–8 [18]–[20]; see also Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383.

Conclusion

1. In our view, the respondents’ submissions should be accepted.  None of the matters relied on by the appellant casts doubt on the correctness of the decision in Sid Ross,[36] which recognised the tort of intimidation as part of the common law of Australia. 

   [36][1971] 1 NSWLR 760.

1. In Sid Ross, the case came before the Court of Appeal on demurrer by the defendant to pleaded causes of action based on the tort of intimidation.  The defendant specifically submitted that the tort of intimidation should not be regarded as part of the law of New South Wales.  That submission was rejected.  Mason JA stated:

The submission that there is no tort of intimidation and that Rookes v Barnard should not be followed was made as a formal submission, it being conceded that this Court would regard it as a persuasive authority.  However, Rookes v Barnard (supra) is but one of a number of formidable obstacles which bars the defendant's path.  Whether the cause of action be described as the separate tort of intimidation or not, there is strong authority for the proposition that if A, intending to injure C, by threatening B that he will commit an unlawful act as against B, unless B refrains from exercising his legal right to deal with C, induces B to refrain from so doing, A commits a wrong actionable at the suit of C.  In recognizing that there was a cause of action in such circumstances the House of Lords applied the law as it had previously been established and declared by such early decisions as the Earl of Shewsbury’s Case (1610) 9 Co Rep 42b, at 50b; 77 ER 793, 805; Garret v Taylor (1620) Cro.Jac 567; 79 ER 485; Tarleton v M’Gawley (1794) 1 Peake 270; 170 ER 153; Keeble v Hickeringill (1706) 11 East 574n; 103 ER 1127 and as it was subsequently explained and declared by the House of Lords in Allen v Flood [1898] AC 1 and Quinn v Leathem [1901] AC 495.

Rookes v Barnard  has subsequently been approved in J. T. Stratford & Son Ltd. v Lindley [1965] AC 269; it was followed in Morgan v Fry [1968] 2 QB 710 and accepted as an authoritative statement of the law in Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 and Pete’s Towing Services Ltd v Northern Industrial Union of Workers [1970] NZLR 32.

To that impressive body of authority must be added Beaudesert Shire Council v Smith (1966) 120 CLR 145, 155 where the High Court held that the earlier cases … established the principle that, independently of trespass, negligence and nuisance, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional or positive acts of another, even if the acts are unlawful in relation to a third party, is entitled to recover damages from that other.[37]

[37][1971] 1 NSWLR 760, 766–7.

1. In Rookes,[38] the plaintiff, who was employed by British Overseas Airways Corporation, refused to join the Association of Engineering and Shipbuilding Draftsmen, of which the defendants were members.  As a result, members of the union resolved to inform the corporation that, if the plaintiff was not removed from his employment, the other employees of the corporation would withdraw their labour.  As a result, the corporation suspended the plaintiff from his work. 

   [38][1964] AC 1129.

1. The plaintiff commenced proceedings against the defendants.  He claimed damages for using unlawful means to induce the corporation to terminate his contract of service, and for conspiring to have him dismissed by threatening the corporation with strike action.  The House of Lords allowed the plaintiff’s appeal, holding that the tort of intimidation was an established tort, and that it comprehended not only threats of criminal tortious acts but also threats of breaches of contract.

1. Their Lordships[39] accepted that the authorities cited by the English Court of Appeal established the tort of intimidation.  Those authorities were set out, at some length, in the judgments of Sellers LJ and Pearson LJ in the decision of the Court of Appeal.[40]  They included the decisions referred to and relied on by Mason JA in Sid Ross.[41]  Plainly enough, therefore, the decision of the New South Wales Court of Appeal in Sid Ross was based on an established body of existing authority.  It was not suggested by counsel for the appellant that those authorities were wrong in law, or that they did not support the existence of the tort. 

   [39]Ibid 1167 (Lord Reid), 1182 (Lord Evershed).

   [40]Ibid Rookes v Barnard [1963] 1 QB 623, 663-4 (Sellers LJ), 694 (Pearson LJ).

   [41][1971] 1 NSWLR 760.

1. Counsel for the appellant conceded — correctly, in our view — that the decision in Sid Ross was good law at the time it was decided.  As we have said, the appellant’s submission was that the authorities relied on in Sid Ross had been overtaken by the later decision of the House of Lords in OBG.[42]  In that case, the House of Lords was concerned with appeals in three separate proceedings.  In the first proceeding, the claimants sought damages based on the torts of wrongful interference by the defendant with their contractual relations, and conversion of their contracts.  In the second proceeding, the claimants sought damages based, inter alia, on the economic torts of deliberate interference with the claimant’s business, and conspiracy to injure by lawful or unlawful means.  In the third proceeding, the claimant claimed damages for inducing breach of contract.  There were two principal issues before the House of Lords.  The first issue was whether there was a unified theory of tort, which treated causing loss by unlawful means as an extension of the tort of inducing a breach of contract.  The House of Lords resolved that issue by determining that the cause of action for inducing breach of contract, and the cause of action for causing loss by unlawful means, were based on two separate torts. 

   [42][2008] 1 AC 1.

1. The second issue determined by the House of Lords concerned the definition of the constituent elements of the emerging tort in English law of causing loss by unlawful means.  In considering that issue, each of the members of the House of Lords gave specific recognition to the existence of the broader tort of causing loss by unlawful means.[43]  In defining that tort, Lord Hoffman (with whom Lord Walker, Baroness Hale and Lord Brown substantially agreed) noted that the tort of causing loss by unlawful means originated with cases such as Garret v Taylor[44] and Tarleton v M’Gawley[45] (to which Mason JA referred in Sid Ross).  His Lordship stated:[46]

The tort of causing loss by unlawful means has a different history.  It starts with cases like Garret v Taylor, in which the defendant was held liable because he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits.  Likewise, in Tarleton v M’Gawley, Lord Kenyon held the master of the Othello, anchored off the coast of West Africa, liable in tort for depriving a rival British ship of trade by the expedient of using his cannon to drive away a canoe which was approaching from the shore.  In such cases, there is no other wrong for which the defendant is liable as accessory.  Although the immediate cause of the loss is the decision of the potential customer or trader to submit to the threat and not buy stones or sell palm oil, he thereby commits no wrong.  The defendant’s liability is primary, for intentionally causing the plaintiff loss by unlawfully interfering with the liberty of others. 

These old cases were examined at some length by the House of Lords in Allen v Flood and their general principle approved.  Because they all involved the use of unlawful threats to intimidate potential customers, Salmond on Torts classified them under the heading of ‘Intimidation’ and the existence of a tort of this name was confirmed by the House of Lords in Rookes v Barnard.  But an interference with the liberty of others by unlawful means does not require threats.  If, for example, the master of the Othello in Tarleton v M’Gawley had deprived the plaintiff of trade by simply sinking the approaching vessel with its cargo of palm oil, it is unlikely that Lord Kenyon would have regarded this as making any difference.  Salmond’s tort of intimidation is therefore only one variant of a broader tort, usually called for short ‘causing loss by unlawful means’, which was recognised by Lord Reid in JT Stratford & Son Ltd v Lindley:

the respondent’s action [in calling a strike] made it practically impossible for the appellants to do any new business with the barge hirers.  It was not disputed that such interference with business is tortious if any unlawful means are employed. [47]

[43]OBG [2008] 1 AC 1, 20 [8], 31-33 [47]-[51] (Lord Hoffman), 54 [145], 57-58 [164]-[167] (Lord Nichols), 74 [264], 75 [270] (Lord Walker), 85 [302] (Baroness Hale), and 91-92 [319]-[320] (Lord Brown).

[44](1620) Cro Jac 567; 79 ER 485.

[45](1794) Peake 270; 170 ER 153.

[46]OBG [2008] 1 AC 1, 19-20 [6]-[7] (citations omitted).

[47]Ibid, quoting JT Stratford & Son Ltd v Lindley [1965] AC 269, 324 (citations omitted).

1. Pausing there, there is nothing in the reasons of the House of Lords in OBG which casts doubt on the existence of the cause of action for intimidation described by Mason JA in Sid Ross.[48]  On the contrary, in each of the cases of Garret v Taylor[49] and Tarleton v M’Gawley[50] referred to by Lord Hoffman, the claim fell squarely within the scope of the tort of intimidation described by Mason JA.  The fact that in English law that cause of action is considered to be but an instance of a broader tort, defined more widely than in Australian law, does not in any way call into question, or invalidate, the cause of action established in those earlier cases, and defined by Mason JA in Sid Ross. 

   [48][1971] 1 NSWLR 760.

   [49](1620) Cro Jac 567; 79 ER 485.

   [50](1794) Peake 270; 170 ER 153.

1. In other words, the fact that the cause of action for intimidation might now 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. 

1. For reasons given earlier, we resisted the appellant’s invitation to decide that the broader tort did not form part of the common law of Australia.  But even if it were concluded that it did not, it would not follow that the narrower tort of intimidation either no longer existed or was in some way invalidated.  In that respect, we agree with the submission advanced on behalf of the respondents. 

1. Certainly, as counsel for the appellant pointed out, appellate courts in Australia have expressed reservations about accepting the broader tort in this country.  In Mengel, the plurality described it as an ‘embryonic or emerging tort’.[51]  In Sanders v Snell,[52] the plurality used the same description,[53] but did not consider it necessary to decide whether such a tort should be recognised in Australia.[54]  For that reason, in Deepcliffe Pty Ltd v Gold Coast City Council,[55] McMurdo P[56] noted that the existence of the tort had not been successfully established in Australia.  In the same case Williams JA[57] held that, in light of the reasoning of the High Court in Mengel and Sanders v Snell, it was not for the Queensland Court of Appeal to hold that such a tort existed in Australian law.    

   [51]Mengel (1995) 185 CLR 307, 343.

   [52](1998) 196 CLR 329.

   [53]Ibid 344 [36].

   [54]Ibid 341 [30].

   [55][2001] QCA 342.

   [56]Ibid [25].

   [57]Ibid [74].

1. As a matter of logic, however, the absence of recognition of the broader tort in Australia does not affect the continued existence of the narrower tort of intimidation, or the validity of the decision of the New South Wales Court of Appeal in Sid Ross[58] recognising that tort.  Indeed, to a limited extent, the decision of the High Court in Mengel provides some support for the continued existence of the tort in Australian common law. 

   [58][1971] 1 NSWLR 760.

1. As already noted, in Mengel the High Court overruled its earlier decision in Beaudesert,[59] holding that the tort described in Beaudesert did not form part of the tort law of Australia.  The High Court thus overruled one strand of authority relied on by Mason JA in Sid Ross.  Nothing was said, however, about the other, more substantial, strand of authority supporting that decision, namely the line of cases which culminated in the decision of the House of Lords in Rookes,[60] nor about the later cases which followed that decision. 

   [59](1966) 120 CLR 145.

   [60][1964] AC 1129.

1. The significance for present purposes of the decision in Mengel lies in the Court’s reason for rejecting the Beaudesert tort, namely, that liability for that tort did not depend on proof of either an intention by the defendant to harm the plaintiff or  breach of a duty of care owed by the defendant to the plaintiff.[61]  Thus, having analysed a number of earlier authorities, in which liability for economic torts was based on an intention to harm, the plurality in Mengel observed:

Other early developments saw the recognition of the torts of intimidation and conspiracy, both of which require an intention to cause economic harm.[62]

Thus the Court not only acknowledged (without qualification) the existence of the tort of intimidation but pointed out that it required proof of intention to cause harm, that being the very element which was missing from the Beaudesert tort.

[61]Mengel (1995) 185 CLR 307, 342-3.

[62]Ibid 342.

1. It is also true, as counsel for the appellant pointed out, that since Sid Ross,[63] there has not developed in Australia a substantial body of case law applying the tort of intimidation.  There are, however, two decisions of this Court in which  the tort has formed a basis for a finding of liability on behalf of a plaintiff. 

   [63][1971] 1 NSWLR 760.

1. In Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia & Ors,[64] Murphy J, on an application for an interlocutory injunction, was satisfied that the plaintiff had made out a case against the defendants, for that purpose, inter alia, on the basis that the defendants had committed and threatened to continue to commit torts of intimidation against the plaintiff.[65]  In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots[66] Brooking J upheld the claim by the plaintiff on a number of bases, including the tort of intimidation.  (It must be acknowledged that the defendants in that case did not take issue with the existence of that tort.) [67]  In addition, the tort has been accorded some recognition in a number of other authorities, including Shaw v Minister for Families, Housing, Community Services & Indigenous Affairs,[68] Jack Brabham Engines Ltd v Beare,[69] Habib v Commonwealth (No 2)[70] and Ballard v Multiplex.[71]

   [64][1986] VR 383.

   [65]Ibid 390.

   [66][1991] 1 VR 637.

   [67]Ibid 690.

   [68](2009) 110 ALD 552, 574 [100]–[102] (Goldberg J).

   [69][2010] FCA 872 [302]–[311] (Jagot J).

   [70](2009) 175 FCR 350, 357–8 [18]–[20] (Perram J).

   [71][2012] NSWSC 426 [86]–[88] (McDougall J).

1. In this context it is also relevant to observe that, in October of this year, Crennan, Bell and Keane JJ in Brookfield Multiplex Ltd v Owners-Strata Plan No 61288,[72] in dealing with a claim in negligence for economic loss, observed (obiter):

Economic interests are protected by the law of contract and by those torts that are usually described as the economic torts, such as deceit, duress, intimidation, conspiracy and inducing breach of contract.[73]

[72](2014) 88 ALJR 911.

[73]Ibid 914 [121].

1. Further, counsel for the appellant submitted that the tort of intimidation was anomalous.  Why, it was asked, should a threat to commit an unlawful act against a third party be actionable when the commission of that unlawful act would not be actionable?  To decide whether the tort was anomalous in this way would require a broader review and analysis of tort law, which was not undertaken in this appeal.   In any event, it is not necessary for us to decide that question.  Even if such an anomaly existed, it would hardly justify a conclusion that the decision in Sid Ross[74] was plainly wrong. 

   [74][1971] 1 NSWLR 760.

1. Indeed, the argument from anomaly might rather direct attention to the non-existence — if that be the case — of a cause of action in the case where the unlawful act is committed.  In that respect, we note that Lord Hoffman in OBG[75] considered that, if the master of the Othello in Tarleton v M’Gawley[76] had deprived the plaintiff of trade, by sinking the approaching vessel with its cargo of palm oil, it was likely that the plaintiff would still have succeeded in the action. 

   [75][2008] 1 AC 1.

   [76](1794) Peake 270; 170 ER 153.

1. Finally, the appellant submitted that the question of the continued recognition of the tort of intimidation in the common law of Australia must be considered in the context of the existing statutory framework affecting industrial relations in this country. In support of that submission, counsel referred to a body of statute law which prescribes the circumstances in which conduct of the type alleged against the appellant in this case is actionable. In that respect, counsel referred to s 45D of the Competition and Consumer Act 2010 (Cth) and to ss 340 to 343, and 348 and pt 3-3 of the Fair Work Act 2009 (Cth).

1. There are two short answers to that proposition, each sufficient in itself.  First, as senior counsel accepted, the question of the continued existence of a tort at  common law could not depend upon inferences to be drawn from the nature and scope of legislation that was in operation at a particular time.  Otherwise, the life of such a cause of action would wax or wane according to the state of the legislation and the inferences which might be open.[77] 

   [77]Of course the legislature can extinguish or revive a common law cause of action at any time.

1. Secondly, and related to the first, the cause of action in intimidation confers upon an injured party a common law right of redress against a wrongdoer.  As a matter of basic statutory construction, to abrogate such a right would require a clear and unambiguous statement of legislative intention.[78]  It was not contended that any of the legislative provisions referred to by counsel for the appellant had expressly (or, indeed, impliedly) abolished that right of action. 

   [78]Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J); Sargood Bros v Commonwealth (1910) 11 CLR 258, 279 (O’Connor J).

1. For the foregoing reasons, the tort of intimidation remains part of the common law of Australia.  The appeal must be dismissed. 

---