Background
Erector Group Consolidated Pty Ltd sued the Construction, Forestry, Mining and Energy Union (NSW Branch) (State Union) and United Super Pty Ltd, trustee of the Construction and Building Unions Superannuation Fund. It alleged that named individuals attended its premises in March 2018 and engaged in intimidation, undue coercion or harassment contrary to s 50 of the Australian Consumer Law (NSW), including stopping work, threatening further stoppages and making personal threats. Erector alleged an agreement to use stoppages to extort payments and identified four payments made in 2019 and early 2020. The first three were alleged against the State Union; superannuation payments were alleged to have been received by United Super, supporting a money-had-and-received claim.
The proceeding began on 17 March 2025, two days before the first applicable six-year limitation period expired. The State Union was served on 30 July 2025. After Lonergan J struck out parts of the pleadings on 27 May 2026, the State Union’s July 2026 defence stated that any established conduct by the named individuals was committed on behalf of the Construction and General Division of the federal Construction, Forestry and Maritime Employees Union (Federal Union). Erector then sought leave to file a second further amended statement of claim, join the Federal Union as first defendant, and plead claims against the Federal Union, the State Union and United Super. Because the limitation period had expired, Erector also sought an order giving the amendments effect from commencement.
The Court’s Holding
Emmett J held that the interests of justice warranted allowing the amendments concerning the unions in substance and joining the Federal Union, but only on terms reserving the application of ss 64(4) and 65 of the Civil Procedure Act 2005 (NSW) to the final hearing. Leave would be granted under s 64(1)(b), with joinder under Uniform Civil Procedure Rules r 6.24. Unless Erector later establishes that ss 64(4) or 65 override it, r 6.28 will govern when proceedings against the Federal Union are taken to have commenced. Whether leave should be granted or treated as granted under s 65(2)(b) or (c), and whether the amendments relate back under s 65(3), remain for the trial judge. The unions retain their limitation defences.
The Court found the evidence supported, without finally determining, an inference that Erector mistakenly believed the State Union engaged or was principal for the named individuals and received the payments. Relevant material included the original descriptions of the intended defendant, correspondence in August 2025, and receipts bearing union names. It was reasonably arguable that this was a non-misleading mistake in a party’s name that caused no reasonable doubt about the intended party. The Court also found it implausible that Erector knowingly chose not to sue the Federal Union. Both unions learned of the claim at about the same time, and Emmett J considered the alleged mistake must have been obvious to them. He relied on Lonergan J’s criticism of the State Union’s December 2025 defence as obscuring its position, while acknowledging that its paragraph 41 clearly alleged receipt by the Federal Union.
Delay, costs, possible loss of an accrued limitation defence and prejudice to both sides were weighed. The Court found a satisfactory explanation for the timing of Erector’s application and no evidence of lost documents, unavailable witnesses or changed union conduct caused by the delayed joinder. It nevertheless recognised Erector’s own contribution by commencing proceedings shortly before limitation expired. The Court rejected the argument that an affidavit expressly attesting to the mistake and cross-examination were invariably necessary at this stage; inferences could suffice, with factual disputes left to trial in an appropriate case.
The current draft against United Super was not approved. Emmett J identified inadequate pleading of the asserted actual or apparent authority of union-appointed director Rita Mallia, including reliance on United Super’s articles, organisational structure and usual practice. A director’s position alone did not carry ostensible authority. Alleged dealings with Mallia, reliance on s 86A of the Fair Trading Act 1987 (NSW), wilful blindness, an allegedly false wage spreadsheet, and later conduct said to conceal earlier contraventions also required clearer pleading. The Court was not persuaded that no arguable knowing-involvement claim existed and allowed Erector one further opportunity to prepare a draft.
Key Takeaways
- Joinder and union-related amendments were allowed in principle, but no corrected pleading had yet received leave and statutory relation-back questions were reserved for trial.
- The ruling did not finally decide that Erector made a qualifying mistake under s 65(2)(b), or that any amendment defeated a limitation defence.
- The United Super draft was refused in its current form because attribution, authority and knowing-involvement allegations lacked sufficient clarity, not because the claim was finally held unarguable.
Why It Matters
The decision illustrates a case-specific approach to late amendment where the intended defendant is allegedly identifiable but wrongly named. It separates permission to replead and join a party from the distinct statutory questions governing amendment after limitation expires. Reserving those questions preserved the unions’ defences while avoiding a resource-intensive mini-trial on mistake at the pleading stage.
For practitioners, the United Super ruling is equally important: assertions that individuals’ conduct or knowledge is attributable to a corporation must identify the factual and legal basis for authority or involvement. Oral explanations at a hearing cannot substitute for a pleading that clearly communicates the case the defendant must answer.