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

The applicant, the Construction, Forestry, Mining & Energy Union, sought special leave to appeal to the High Court of Australia from a decision of the Court of Appeal. The dispute concerned the existence and nature of certain economic torts under Australian common law, specifically the tort of intimidation and the tort of causing loss by unlawful means. The applicant argued that these torts, as previously understood, were intertwined and that a re-examination of their origins and development was necessary.

The central legal issues before the High Court were whether the tort of intimidation forms part of the common law of Australia, and whether the tort of causing loss by unlawful means also forms part of Australian common law. The applicant contended that recent analysis, particularly from the House of Lords in the United Kingdom, suggested that the tort of intimidation was merely a variant of the broader tort of causing loss by unlawful means, and that the historical separation of these two torts was an error. This re-evaluation, the applicant argued, cast doubt on the continued independent existence and application of the tort of intimidation in Australia, especially given inconsistent decisions in Australian superior courts regarding the tort of unlawful means.

The applicant's submissions highlighted that while Australian textbooks typically list the tort of intimidation, its practical application and development have been limited since the 1971 decision in *Sid Ross*. The applicant relied on the reasoning in *OBG v Allan* in the UK, which suggested that intimidation was not a distinct tort but rather a manifestation of the unlawful means tort. This analysis implied that the tort of intimidation might be considered parasitic or otiose in Australia, particularly as alternative remedies, such as those under the *Competition and Consumer Act 2010* (Cth), might be available. The applicant argued that the Court of Appeal had erred in not undertaking a broader review of tort law to address these issues of coherence and potential anomalies in the development of Australian common law concerning pure economic loss.

The High Court refused the application for special leave to appeal. The Court found that the decision of the Court of Appeal was not attended by sufficient doubt to warrant the grant of special leave. Consequently, the application was refused with costs.