CFMEU v Boral Resources (Vic) Pty Ltd & Ors

(2014) 45 VR 571; [2014] VSCA 348

Victorian Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Economic torts
3. › Intimidation
4. › Existence of tort in Australian common law
5. › Whether tort of intimidation forms part of common law of Australia
6. › Whether tort subsumed in broader tort of unlawful interference with business
7. › Whether overruling of Beaudesert Shire Council v Smith undermined foundation of tort
1. Tort
2. › Economic torts
3. › Causing loss by unlawful means
4. › Whether broader tort recognised in Australian common law
5. › Whether non-recognition of broader tort entails non-existence of narrower tort of intimidation
1. Practice and Procedure
2. › Appeal
3. › Reference to Court of Appeal
4. › Leave to appeal under s 17B(3)
5. › Whether appropriate for grant of leave
6. › Single question of law
7. › Inevitability of appeal
8. › Advantages of multi-member bench
9. › Supreme Court Act 1986 (Vic), ss 17B(2), (3)

Quick Take

The tort of intimidation remains part of the common law of Australia. The overruling of Beaudesert Shire Council v Smith in Mengel and the reconceptualisation of intimidation as a subset of the broader tort of causing loss by unlawful means in OBG Ltd v Allan do not undermine the tort's existence. The broader tort of causing loss by unlawful means remains unrecognised in Australia, but this does not affect the narrower tort. The question whether the broader tort forms part of Australian law remains open and can only be decided by the High Court.