Age Company Ltd v Automotive Food Metals Engineering Printing & Kindred Industries Union

[2004] VSC 54

IN THE SUPREME COURT OF VICTORIA Revised

AT MELBOURNE

PRACTICE COURT

No. 4662 of 2004

THE AGE COMPANY LTD & ORS	Plaintiffs
v
AUTOMOTIVE FOOD METALS ENGINEERING PRINTING & KINDRED INDUSTRIES UNION & ANOR	Defendants

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JUDGE:	MANDIE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2004
DATE OF JUDGMENT:	24 February 2004
MEDIUM NEUTRAL CITATION:	[2004] VSC 54

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Practice and Procedure – Application for interim injunction to restrain tortious conduct

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr F. Parry SC	Corrs Chambers Westgarth
For the Defendants	Mr C. Dowling

HIS HONOUR:

1. The plaintiff seeks a continuation of orders that I made yesterday until 4.30 p.m. on Monday which arise in the context of conduct which occurred which prevented the main part of the Saturday Age being printed.

1. The material before the court provides prima facie evidence of a number of torts having been committed by the defendants or at least serious questions to be tried in relation to tortious conduct including the torts of nuisance, inducing breach of contract, interference with business, intimidation and possibly a number of other torts.  That conduct which is comprehensively described in the plaintiffs' affidavit material has ceased, but there is no evidence to contradict the material that is before the court, and it is submitted on the basis of that material, that it would be appropriate in the Court's equitable jurisdiction, at least until 4.30 p.m. on Monday, to restrain the further commission of such conduct which, it is said on the basis of the material, is threatened and apprehended.  Again, I have heard no submissions to the contrary and there are I think serious questions to be tried in relation to that.  I am satisfied that to the necessary level that this tortious conduct is reasonably apprehended and is threatened having regard to the material which I need not go into further at this stage.  So that if there was nothing more the court would be inclined to grant the injunctions for the short period requested and particularly so in the light of the substantial damage which would be caused and/or might be caused by such apprehended conduct.  Indeed, there is no evidence to indicate that any harm would be done to the defendants by the injunctions so that the balance of convenience is all one way and, accordingly, if this is simply a matter of restraining torts the court would have no hesitation in granting the injunction sought.

1. But counsel for the defendants has raised some serious matters in answer which arise out of the provisions of the Workplace Relations Act 1996 ((Cth), principally in reliance on s.166A of that Act, as to whether an application such as the present is barred by that section as constituting an action in tort under the law of the State of Victoria. Arguments arise under that section as to whether it deals with apprehended conduct as opposed to existing conduct, as to whether the conduct is in furtherance of an industrial dispute, as to whether the exercise of the equitable jurisdiction of the court to prevent tort falls within the language of "action in tort under the law" of the State of Victoria. There are additional matters which are relied upon, arising from proceedings brought by the plaintiffs in the Industrial Relations Commission and in the Federal Court, which are said to give rise to discretionary considerations. These matters bear upon either or both of the question of a serious questions to be tried and the balance of convenience, but I do not think that the court ought to venture upon those questions when the only matter before the court is an application to extend the injunctions for a short period. I am not persuaded that the defendants have any final answer or "killer point", as it were, with the result that I should simply say no, the injunction should not be extended, so that I do not think it is appropriate for the court to fully investigate those matters on an application for such a short extension of an injunction.

1. On a preliminary basis I consider that there are serious questions to be tried both as to the proper interpretation of the words "action in tort" and also the other matters that I have referred to while recognising that some judges have expressed views to the contrary.  I do not think it is appropriate to fully ventilate those matters in a situation where a very short extension of the injunction is sought.  No doubt it would be appropriate to put before the court further evidence as to the nature of the other proceedings and perhaps developments which occur between now and Monday will render all of that clearer, or even render it unnecessary to extend the injunction.  But I think that the nature of the conduct which is threatened and the severity of the damage which might be caused is sufficient to justify an extension until 4.30 p.m. on Monday simply on the basis of the balance of convenience which is so strongly in favour of the plaintiffs that the other matters I do not think carry any great weight, given that it is not clear that  they are, as I see it, a final answer to anything that has been put, although substantial points have been raised.  I therefore will not embark upon a discussion of the authorities which were cited to me, but I have considered the arguments and, as I say, I do not think that they provide a clearly final answer to the relief sought, although there are certainly arguments which ultimately  some court is going to have to determine.  They all raise serious, and to some extent difficult, issues.