Construction Forestry Mining & Energy Union v TCB Concreters Pty Ltd

Introduction 1 Before the Court is a notice of motion, dated 23 February 2004, seeking orders for the striking out of an amended statement of claim filed in these proceedings, or, in the alternative, for orders staying the proceedings; and, finally, for an order that judgment be entered in the proceedings for the respondents (who are the applicants on this notice of motion). A preliminary point has arisen for consideration before other questions arise of the notice of motion (those other questions being principally of a pleading character). 2 The preliminary point arises in the following fashion. The first applicant (who is the first respondent on this notice of motion), as the application states, is a company in liquidation; it is a company which is being wound up in insolvency. It is common ground that s 471A of the Corporations Act 2001 (Cth) applies in the present proceedings. 3 Relevantly, s 471A provides: '(1) While a company is being wound up in insolvency or by the Court, a person cannot perform or exercise, and must not purport to perform or exercise, a function or power as an officer of the company. (1A) Subsection (1) does not apply to the extent that the performance or exercise, or purported performance or exercise, is: (a) as a liquidator appointed for the purposes of the winding up; or (b) as an administrator appointed for the purposes of an administration of the company beginning after the winding up order was made; or (c) with the liquidator's written approval; or (d) with the approval of the Court.' (Emphasis added.) 4 By letter dated 25 September 2002, the solicitors for the second and third applicant wrote to Antony de Vries, the liquidator of the first applicant, a letter in the following terms: 'We advise that we act on behalf of Tony and Joanne Messina, formerly directors of TCB Concreters with respect to which company we understand you are the administrators. We have given advice to our clients as to a possible cause of action arising out of the Building Industry Royal Commission against the CFMEU [Construction Forestry Mining and Energy Union] and certain members of that organisation. The claim would, broadly, bebased on statutory and common law counts relating to the CFMEU's interference with our clients' business activities such that contracts were placed in jeopardy, work could not be completed on at least one project, and projects which were "in the pipeline" were no longer on offer to our clients or their company. The damages which we would be claiming would be significant - in excess of $1,000,000. Just one contract on which our clients were no longer welcome to tender for was for approximately $1.25 million. It would assist and complete our clients' case if an action were also brought on behalf of the company as it has clearly also suffered financial loss due to the actions of the CFMEU. Would you please advise whether you would be prepared to give your consent to us taking such action on behalf of TCB, and advise us of any conditions which you would place upon your consent. The action we are contemplating is to be taken in the Federal Court of Australia. We advise that, whether or not you consent, Mr. or Mrs. Messina will be contacting you with a view to uplifting copies of documents from your office to assist us in their proceedings. Please also advise us as to the probable shortfall, if any, in the company funds.' 5 The liquidator responded by letter dated 17 December 2002 as follows: '1 refer to the above Company and to your letter dated 13 December 2002 in respect to your clients, Mr. Tony and Mrs. Joanne Messina's possible cause of action arising out of the Building Industry Royal Commission against the CFMEU. Consent is given to your clients to proceed in your proposed action on behalf of the Company. Mrs. Messina has already been in contact with this office and has uplifted relevant documentation to assist you in your proposed proceedings. I attach a schedule that summarises the Company's financial details, as detailed in the Report as to Affairs submitted to this administration by the Company's directors, at the date of my appointment as Liquidator (18 October 2000).' (Emphasis added.) 6 By their application, dated 18 September 2003 and filed on 1 October 2003, the applicants applied to this Court for damages and declarations pursuant to ss 45D, 45DA and 82 of the Trade Practices Act 1974 (Cth) and the associated jurisdiction of the Court for the torts of assault, interference with contractual relations, procuring a breach of contract; intimidation; unlawful interference with trade and business and conspiracy.