Construction, Forestry, Mining & Energy Union v Boral Resources (Vic) Pty Ltd

[2015] HCATrans 122

[2015] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 2015

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING & ENERGY UNION

Applicant

and

BORAL RESOURCES (VIC) PTY LTD

First Respondent

ALSAFE PREMIX CONCRETE PTY LTD (ACN 003 290 999)

Second Respondent

BORAL BRICKS PTY LD (ACN 082 448 342)

Third Respondent

BORAL MASONRY LTD (ACN 000 223 718)

Fourth Respondent

BORAL AUSTRALIAN GYPSUM LTD (ACN 004 231 976)

Fifth Respondent

BORAL WINDOW SYSTEMS LTD (004 069 523)

Sixth Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 1.27 PM

Copyright in the High Court of Australia

____________________

MS R.M. DOYLE, SC:   May it please the Court, I appear with MS P.C. KNOWLES for the applicant.  (instructed by Slater & Gordon Solicitors)

MR S.J. WOOD, QC:   May it please the Court, I appear with my learned friend, MR D. TERNOVSKI, for the respondent.  (instructed by Herbert Smith Freehills)

KEANE J:   Yes, Ms Doyle.

MS DOYLE:   If the Court pleases, the central question that arises in this application is whether the tort of intimidation forms part of the common law of Australia.  Resolution of that question also requires resolution of whether the tort of causing loss by unlawful means forms part of the common law of Australia.  In the submission I am about to develop, we will be putting it on this basis.  The two questions are inextricably intertwined.  This Court has ‑ ‑ ‑

KEANE J:   But is not the question that resolves this case whether the tort of intimidation forms part of the law of Australia?

MS DOYLE:   It is.

KEANE J:   However it might be developed – whether it might be widened or refined, the central question is whether the tort of intimidation forms part of the law of Australia.  Is there any Australian textbook on the law of torts that does not include the tort of intimidation as one of the torts that forms part of the law of Australia? 

MS DOYLE:   I think the answer to that question, your Honour, is no, but with this greater descriptor of the types of references that appear in those textbooks - often the tort is given scant analysis, often it is referred to by reference only to Sid Ross and/or Rookes v Barnard.  There is a very slim development of any analysis of the history for reasons including that in this country, since the decision in Sid Ross in 1971, the tort has been rarely pleaded and even more rarely founded or grounded the granting of a remedy.  In only four cases that we have found has it gone beyond either a passing reference, perhaps, analysis at the stage of a strike‑out decision or a question relating to pleadings.

So, for that reason, while there are, it is true to say, references in the textbooks, that is no more in many cases than a description of the current reality which is that this tort, sometimes described as rare and peculiar or not often used, has been used, has been pleaded, but has not been developed much further.  In fact, we put it more highly.  We say it has predominantly stagnated in Australia since 1971.

KEANE J:   Is there any suggestion in any of the textbooks on torts in Australia that the tort has fallen into desuetude?

MS DOYLE:   That language has not been used.  The reason that I started by saying that there are two questions that arise is because your Honours will have seen from our written case that since 2008 it has been clear in the United Kingdom that a proper consideration of the history and the origins of these torts reveals that they are in fact one and the same, that intimidation is no more than a variant or a version of the unlawful means tort.

Now, if that be the case, that we say is an important reason why this situation needs to be considered by the High Court and the question of the existence of the two torts is therefore inextricably bound together because in fact it now appears on a careful analysis that the very old cases, and I am going back now to those decisions from the 1600 and 1700s which related to threats of criminal acts, and/or even violence in the case of Tarleton, gained a new life in 1964 when the House of Lords decided Rookes v Barnard and that it may be – and, indeed, Lord Hoffmann’s decision in OBG tends to confirm this - that the label “intimidation” springs only from the fact that it was in Salmond’s seminal text on torts that that label was first applied, perhaps for reasons of convenience, perhaps because that term best described the then line of old cases, such as Tarleton, where there was the firing of the cannon across the bows of the canoe that was paddling out to trade with one of the larger ships.

Now, perhaps the best way to understand the way that that was considered by Lord Hoffmann in OBG is to consider his Honour’s reasons at paragraph 7.  Do your Honours have that passage there, the decision in OBG?

KEANE J:   We have not been given a bundle of authorities.

MS DOYLE:   It was our understanding that the practice under the new rules, or the new practice note, would attain and therefore that the Bench would have them.  I apologise if you do not and I can easily direct your Honours to that passage.

KEANE J:   Well, if you would give us the citation, we will get them.

MS DOYLE:   Certainly.  We have copies here, I think.  We can arrange for that to be furnished to the Bench.

KEANE J:   That would be convenient.

MS DOYLE:   The decision of the House of Lords in OBG, I will be referring to the reasons of Lord Hoffmann at paragraph 7 and it is there that it is suggested that the way in which this has come about, this misapprehension that persisted for a number of years that there are two distinct torts, may be because the earlier cases involved the use of unlawful threats to intimidate potential customers.  But then in Salmond on Torts in the 1907 edition, those torts were classified or arranged under the heading “Intimidation”.  The existence of a tort bearing that name, Lord Hoffmann goes on to point out, was not confirmed until Rookes v Barnard in 1964.

Now, pausing there, your Honours, Carty, and other commentators have made the point that that now suggests that Rookes v Barnard may indeed have been an instance of judicial law making and that it is perhaps best conceived of in this way.  It was a decision which extended the principle in those previous or earlier cases involving threats of criminal conduct to the commercial or industrial context.  As Lord Hoffmann goes on to say:

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 the Stratford Case.  Now, pausing there, Lord Hoffmann explains, both in that passage and later in his Lordship’s reasons, that a careful analysis therefore, and a correct analysis of the history now reveals to us that two torts – or torts which had previously been conceived of, of two torts, were erroneously so conceived.  In fact they spring from the one line of decisions.  They spring from the one principle or matter of policy.  The question of policy is whether or not intentional acts which inflict economic harm are tortious. 

Now, this Court has not been called upon to consider that in any detail, much less in the context of either of these two torts, since Mengel, the decision in which this Court overruled Beaudesert.  It is in those circumstances that we submit it is now timely for the High Court to resolve that question because the following situation has grown up.  There is the line of old cases in the United Kingdom, now explained by Lord Hoffmann to have wrongly split two torts, which have always to have been conceived of historically and as a matter of principle as one.  In the meantime, following the variant line, and at the time wrongly apprehending that intimidation was a freestanding tort, the New South Wales Court of Appeal applied Rookes v Barnard in Sid Ross.

Now, your Honours will have seen that the Court of Appeal found against the applicant in the court below, principally on the basis of the soundness of that decision.  Well, we submit it is no longer good law, because since it was decided the following things have happened.  Firstly, intimidation has been rarely pleaded and even more rarely ground of a cause of action or a remedy, as I said at the outset.  But next, the House of Lords ‑ ‑ ‑

KEANE J:   That might be because the existence of the tort has served the wholesome purpose of deterring people from doing it.

MS DOYLE:   One cannot know the answer to that question, but I can only admit that that remains a possibility.  The other things that happened included the following.  The House of Lords itself, the architect of the tort, many years later, in 2008, reveals, confirms or explains to followers of the common law for the first time, “Don’t be confused by the label.  In fact, they were all but one and the same”. 

Perhaps the easiest way of understanding it, because it also ties into our anomaly argument is as follows.  If there be a tort of unlawful means, committing an unlawful act, then one might understand intimidation, although that label is no longer a happy or helpful one, as being the threat version of that tort – a threat to commit an unlawful act. 

Now, since that decision in 1971 in Sid Ross, there have been further developments in both countries.  In the House of Lords there has been a confirmation that Rookes v Barnard may have been a confusing or unnecessary departure or addition to the law by conceiving of intimidation as a separate tort when it was not.  But, in the meantime, in this country, the decisions have gone very much the other way with respect to the unlawful means tort.

First of all, in Mengel in 1995, this Court overruled the Beaudesert principle, which was one of the two strands which attracted the Court of Appeal in Sid Ross.  Next, in Sanders v Snell, the matter did not necessarily directly arise, but in dealing with that case, this Court opined that it was not necessary to determine whether the unlawful means tort formed part of the common law of Australia and expressed some reservations about whether it does or does not.

Following from that, we have now a situation where there are inconsistent decisions of superior courts in this country.  I will go through those decisions briefly by name and in terms of jurisdiction before returning to any of those that need greater analysis.  In Deepcliffe, the Queensland Court of Appeal handed down judgments in which the President expressly doubted the existence of that tort in this nation, and Justice of Appeal Williams specifically or expressly found that the tort does not form part of the common law of Australia.  Following thereon, we have a single judge of the Federal Court, Justice Moore, in the Qantas decision of 2011, expressly finding that the tort does not form part of the landscape of Australian common law.

KEANE J:   But to say that a wider tortious liability is not accepted is not to cast any doubt on the existence of the narrower liability, which is well attested in the books.

MS DOYLE:   Even if that be so, your Honour, I would describe the torts in the reverse because it is intimidation, if that label be of any enduring value, it is intimidation which is said to be constituted by the threat of committing an unlawful act and it is the unlawful means tort which conversely is described as consisting of the element of committing the unlawful act.  That is why we have said as a matter of history and policy, when one looks at the development of the two torts, why would it not be described as an anomaly to land where the Court of Appeal landed, and this is the error we say is the most significant error in their Honours’ reasons.

Why would it be that the Australian common law has developed and landed in a position where intimidation, which is constituted by a threat to commit an unlawful act which inflicts economic harm on a third party is actionable whereas the actual commission of that unlawful act is not actionable, if our analysis of the current existence of the tort of unlawful means be accepted.  That is a curious position indeed.

KEANE J:   Looking at paragraph 54 ‑ ‑ ‑

MS DOYLE:   Of Lord Hoffmann’s ‑ ‑ ‑

KEANE J:   No, the court’s reasons in this case, page 110 going on to 111, it is said that the rhetorical question that you proposed was decided by their Honours and they said:

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.

Taking that as accurate, why would it be appropriate for us to give leave to consider this question without the benefit of a review of the question by the court?  It sat five members to determine it.

MS DOYLE:   Because, your Honour, we do not wholly accept the accuracy of that sentence.  We did raise for consideration questions including the following:  whether or not to accept or continue to live with what we described as an anomaly would create a situation where there is a tort – the tort of intimidation – in Australian law which is parasitic if not otiose and in that context we made submissions which drew from a variety of tort decisions or negligence decisions at the High Court.

We called for, and reminded the court of the need for coherence in the development of the area of recovery for pure economic loss.  We did, in fact, even if not successfully, embark upon the task of inviting the court below to review how this tort, or either of the torts, if they exist at all, fit in to the broader umbrella of this Court’s careful, cautious development over many years of recovery for pure economic loss in the area of negligence compared with in the area of intentional act.

In that context we drew on matters including Mengel’s overruling of Beaudesert and we looked to, for example, the more recent decision of the High Court in Brookfield where, in dealing with the continually recurring issue of latent defects in buildings, passing reference was made to the tort of intimidation.

So, with respect, it is submitted, we did in fact invite such a review.  True enough, it was not undertaken, and perhaps even more true enough, it is ultimately, in any event, a task for this Court for reasons including that the way in which our submissions are put calls upon this Court to synthesise and ultimately resolve the question of how Rookes v Barnard in the United Kingdom, followed by Sid Ross here, has been overtaken by events, including a fairly recent decision of the House of Lords.

In between times, as I have explained, we have inconsistent decisions of superior courts in this jurisdiction.  I had started to rattle off a list of those judgments which have doubted the existence of the unlawful means tort.  I should finish that list by adding another judgment of a single judge of the Federal Court in the case of Nyoni and a single judge of the New South Wales Supreme Court, Justice McDougall, has also, applying Justice Moore in Qantas, said “I expressly find the unlawful means tort does not form part of the landscape of the Australian common law”.

In contrast, there is a carefully reasoned decision of Justice Pritchard of the Western Australian Supreme Court, also very recent, 2013, where her Honour, having carefully analysed the decision in OBG and weighing many of the cases to which I have just referred, falls on the other side of the fence.

NETTLE J:   If the question were whether there was an unlawful means tort part of the Australian common law that would be all very interesting, but that is not the question.  The question is, has the tort of intimidation been made to go away by reason of some process yet to be revealed?

MS DOYLE:   Yes, but if I can answer it this way ‑ ‑ ‑

KEANE J:   No one noticed the passing.

MS DOYLE:   Well, that may sound curious but it ought to be remembered what OBG did and what their Lordships delivered.  In OBG their Lordships in fact considered three torts:  the tort of inducing breach of contract, unlawful means and intimidation and also revealed to the common law world that just as previously the unified theory had held sway in the common law world and it had been thought that the tort of inducing breach of contract and the unlawful means tort were unified and one and the same, they in fact are two discrete torts.

NETTLE J:   They unbundled them again, having put Lumley v Gye into this so‑called broadsword, they brought it out.

MS DOYLE:   Yes, that is right.

NETTLE J:   That does not impinge, does it, in any way on the tort of intimidation?

MS DOYLE:   No, but by analogy, if the Court pleases, I am explaining that conversely they then bundled two other torts.  Now, those matters had bypassed the notice of all of those who are interested in these matters, who plead them – not routinely, but who plead them when they arise, including in the industrial context.  No one had understood correctly, or at least pronounced determinatively, that whereas we had thought two torts were unified they were in fact two torts, nor, that where we thought there were two torts there is in fact one.

The only point I am making in that context, your Honours, is that is it curious that this could have happened without anybody noticing?  Perhaps not when one considers - to use another analogy that we have referred to in our submissions - Barker v Commonwealth Bank.  It had been thought in this country that, having received wisdom from the United Kingdom with respect to the implied term of mutual trust and confidence in employment contracts, that the term existed in appropriate cases.  It was pleaded, relied upon, argued, determined.

But then, not so long ago, this Court ruled that we had been mistaken about our reception of that doctrine and that implied term and that it had, to all intents and purposes, been an excursion that was incorrect for a number of years.  So those things, it is submitted, can happen.  It can be later revealed that one’s conception of a particular aspect of the law is erroneous and the House of Lords has now confirmed that in that particular context in the United Kingdom.

In those circumstances – and this is perhaps related to your Honour Justice Keane’s question – it was put against us, and noted as such by the Court of Appeal, that if this tort is now extinct, or found to be extinct, it might leave some plaintiffs without a remedy.  We say not, and that is why we have described it as parasitic, if not, for Australian purposes, otiose because in this case, the way in which the tort of intimidation is pleaded against the applicant is as follows.

The unlawful means relied upon, or the unlawful act relied upon, which it is said the applicant threatened to commit – and “threaten” is important, because we are focusing on intimidation – was either threatening to induce breach of contract by the employees of Boral’s customers, or threatening to contravene section 45B of the Competition and Consumer Act.

Now, secondary boycotts are prohibited by that provision in a freestanding way and I will conclude by noting something which may be obvious to your Honours, but, of course, Boral has and had a remedy under section 82 of that statutory regime with respect to any conduct properly characterised as secondary boycott conduct.

The tort therefore relies upon proving the commission of another tort, in the case of inducing breach of contract, or contravention of a statutory regime demonstrating two points.  It does not leave a plaintiff such as Boral without a remedy, but it also does not, to put it in the colloquial,

pull the rug out from under any litigants or potential plaintiffs who had thought that the tort of intimidation might provide a way forward in similar cases.  If the Court pleases.

KEANE J:   Thank you, Ms Doyle.  We will not need to trouble you, Mr Wood.

The decision of the Court of Appeal is not attended by sufficient doubt to warrant the grant of special leave to appeal.  The application should be refused with costs.

AT 1.49 PM THE MATTER WAS CONCLUDED