Bell-a-bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering Printing and Kindred Industries Union of Workers, Western Australian Branch

[2006] WASC 19

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BELL-A-BIKE ROTTNEST PTY LTD & ORS -v- AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH & ORS [2006] WASC 19

CORAM:   MASTER NEWNES

HEARD:   11 NOVEMBER 2005

DELIVERED          :   10 FEBRUARY 2006

FILE NO/S:   CIV 2496 of 2001

BETWEEN:   BELL-A-BIKE ROTTNEST PTY LTD

First Plaintiff

SANDRA PARKER
Second Plaintiff

GLEN PARKER
Third Plaintiff

AND

AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
First Defendant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU)
Second Defendant

MICHAEL ANDERTON
Third Defendant

JOCK FERGUSON
Fourth Defendant

TIMOTHY KUCERA
Fifth Defendant

LENARD CHRISTIE
Sixth Defendant

TRISTEN DEMMLER
Seventh Defendant

LOUISE DI FALCO
Eighth Defendant

DAVID ROMANOWSKI
Ninth Defendant

STEVEN VERT
Tenth Defendant

NICHOLAS YEOMANS
Eleventh Defendant

Catchwords:

Practice and procedure - Claim for defamation - Application to strike out plea of a defence under s 166A of Workplace Relations Act 1996 (Cth) - Whether defence pleads "industrial dispute" within meaning of s 166A - Turns on own facts

Legislation:

Industrial Relations Act 1979 (WA)

Industrial Relations Act 1988 (Cth), s 4

Workplace Relations Act 1996 (Cth), s 4, s 166A, s 166A(1), s 166A(6)(a), s 166A(6)(b), s 166A(6)(c), s 170LI, s 170MI, s 170MO(2)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr T H F Caspersz

Second Plaintiff            :     Mr T H F Caspersz

Third Plaintiff               :     Mr T H F Caspersz

First Defendant             :     Mr S M Davies

Second Defendant         :     Mr S M Davies

Third Defendant           :     Mr S M Davies

Fourth Defendant          :     Mr S M Davies

Fifth Defendant            :     Mr S M Davies

Sixth Defendant            :     Mr L Gandini

Seventh Defendant        :     Mr S M Davies

Eighth Defendant          :     Mr S M Davies

Ninth Defendant           :     Mr S M Davies

Tenth Defendant           :     Mr S M Davies

Eleventh Defendant      :     Mr L Gandini

Solicitors:

First Plaintiff                :     Jackson McDonald

Second Plaintiff            :     Jackson McDonald

Third Plaintiff               :     Jackson McDonald

First Defendant             :     Gibson & Gibson

Second Defendant         :     Gibson & Gibson

Third Defendant           :     Gibson & Gibson

Fourth Defendant          :     Gibson & Gibson

Fifth Defendant            :     Gibson & Gibson

Sixth Defendant            :     Chapmans Lawyers

Seventh Defendant        :     Gibson & Gibson

Eighth Defendant          :     Gibson & Gibson

Ninth Defendant           :     Gibson & Gibson

Tenth Defendant           :     Gibson & Gibson

Eleventh Defendant      :     Chapmans Lawyers

Case(s) referred to in judgment(s):

AMWU v Bell‑A‑Bike Rottnest Pty Ltd [2005] WASCA 157

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 209 ALR 116

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405

R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353

Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96

Case(s) also cited:

Caledonian Collieries Limited v Australasian Coal & Shale Employees' Federation (No 1) (Coal Case) (1930) 42 CLR 527

Clairs Keeley (a firm) v Treacy (2004) 29 WAR 479

Cox Brothers (Australia) Ltd v Cox (1934) 50 CLR 314

Halford v Brookes [1991] 3 All ER 559

Little v State of Victoria [1998] 4 VR 596

Nominal Defendant v Manning (2000) 50 NSWLR 139

Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7

Salido v Nominal Defendant (1993) 32 NSWLR 524

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

Tampion v Anderson (1973) 3 ALR 414

The Queen v Ludeke; Ex Parte Queensland Electricity Commission (1985) 159 CLR 178

1. MASTER NEWNES:  This is an application by the plaintiffs to strike out parts of the defendants' amended defence as disclosing no reasonable cause of defence.  As the application is out of time under O 20 r 19, the plaintiffs require leave to bring the application.

2. On an application of this nature, generally it will not be possible to divorce the question of leave from the substantive merits of the application.  If a pleading, which raises significant issues of fact that would otherwise have to be canvassed at trial, discloses no arguable cause of action or defence (as the case may be), the interests of justice will normally require that leave be granted and the pleading be struck out.  It would be contrary to the interests of the parties and the effective utilisation of court resources to allow such a matter to go to trial simply because the applicant was out of time in making the application.  The question of the costs of the application may, however, raise different issues.

3. In that light, it is necessary in this case to turn to the substantive issues on the application.

The plaintiffs' claim

1. In the action, the plaintiffs claim against the defendants damages for defamation.  The plaintiffs plead that the first plaintiff carried on a bicycle hire business, trading as "Rottnest Island Bike Hire", on Rottnest Island.  The second and third plaintiffs were the directors and shareholders of the first plaintiff.  It is alleged the second and third plaintiffs were known on Rottnest Island to participate in the control and management of the first plaintiff.

2. It is pleaded that the first defendant was a registered trade union under the Industrial Relations Act 1979 (WA) and the second defendant was a registered trade union under the Workplace Relations Act 1996 (Cth) ("the Act"). The third, fourth and fifth defendants were officers and employees of the first and second defendants. The sixth to eleventh defendants were employees of the first plaintiff and members of the first and second defendants.

3. The claim arises out of certain articles published in "The West Australian" newspaper, and in pamphlets which it is alleged were distributed on Rottnest Island by or on behalf of the first or second defendant, relating to the conditions of employment of employees of the first plaintiff.  It is alleged that the newspaper articles came about as a result of interviews given by one or other of the defendants to journalists employed by "The West Australian" newspaper, those defendants intending that their statements would be re‑published in the newspaper and where re‑publication was the natural and probable consequence of the interview.  It is alleged that each of the newspaper articles and pamphlets was defamatory of the plaintiffs.  A claim is also made that the ninth defendant wore a T‑shirt with a statement defamatory of the plaintiffs printed on it.

The defendants' defence

1. The defendants have pleaded a number of defences which it is not necessary to discuss for present purposes. The present application relates only to the plea of a defence under s 166A of the Act. The plaintiffs say that the plea discloses no reasonable cause of defence.

2. Section 166A of the Act, so far as relevant, provides as follows:

   "(1)Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless …"

3. In the Act, s 4 defines "industrial dispute" as follows:

   " 'industrial dispute' (except in Part XA) means:

   (a)an industrial dispute (including a threatened, impending or probable industrial dispute):

   (i)        extending beyond the limits of any one State; and

   (ii)that is about matters pertaining to the relationship between employers and employees; or

   (b)a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a);

   …"

1. The relevant portions of the amended defence are as follows:

   "64Further, as at 27 November 2000 and at all tiems [sic] thereafter until at least 4 June 2001, the second defendant was, within the meaning of the Workplace Relations Act:

   (a)       an organization [sic] of ewmployees [sic];

   Particulars

   Throughout the period in question the second defendant was a trade uhnion [sic], registered pursuant to the Workplace Relations Act.

   (b)registered as an organisation under the :"Registration and Accountability of Organisations Schedule".

   65As at 27 November 2000, and at all times until at least 4 June 2001, the second defendant was engaged in an initiative throughout the various states and territories of Australia to:

   (a)obtain industry wide collective bargaining across all manufacturing sector [sic] through, inter alia:

   (i)in respect of its members and for other workers entitled to become members of the second defendant that were not already covered by a certified agreement, certified agreements;

   (ii)the negotiation of replacement certified agreement for certified agreements already in place, with such replacement certified agreements to become operative on the expiry of the certified agreements already in place;

   (b)obtain a common expiry date for as many of the certified agreements referred to in (a)(I) aboeve [sic] and for as many of the proposed replacement certified agreements referred to in (a)(ii) as was reasonably possible,

   (the Certification Initiative).

   Particulars

   i.       The Certification Initiative is in writing;

   ii.The Certification Initiative was adopted by the second defendant as part of its policy at the second defendant's national conference held in July 2000;

   iii.The Certification Initiative remained part of the second defendant's policy throughout, inter alia, the period 27 November 2000 to 4 June 2001 inclusive.

   66The second defendant:

   (a)on or about 5 October 2000, in accordance with the Certification Initiative, attempted to initiate negotiations with the first plaintiff in relation to the second defendant's wish to secure a certified agreement with the first plaintiff;

   Particulars

   i.On or about 5 October 2000 the second defendant gave written notice to the first plaintiff pursuant to section 170MI of the Workplace Relations Act (a Form R40 Notice) of the initiation of a bargaining period, which notice included a log of claims that the second defendant stipulated should be dealt with in a certified agreement (the Log of Claims);

   (b)On or about 12 October 2000, following refusal by the first plaintiff to enter into the proposed certified agreement, served notice of intention to commence industrial action pursuant to section 170MO(2) of the Workplace Relations Act (the Notice of Intended Industrial Action);

   (c)On 16 October 2000, commenced industrial action as foreshadowed in the abovementioned Notice of Intended Industrial Action.

   Particulars

   (i)On or about 16 October 2000 members of the second defendant held a meeting to discuss the process nad [sic] progress of negotiations for a certified agreement.  The meeting resulted in a cessation of work for the duration of that meeting.

   (ii)Work bans, limitations and cessations of work were scheduled to occur subject to the response by the plaintiffs to the claims made by the second defendant and members of the second defendant.

   (d)From on or about 5 October 2000 until at least 4 June 2001 remained in a state of disputation with the first plaitniff [sic] in relation to:

   (i)whether a certified agreement ought to be put in place between the first plaintiff and the second defendant;

   (ii)the various claims that are set out in the Log of Claims.

   67Further, at all tiems [sic] from on or before 5 October 2000 until at least 4 June 2001, the second defendant:

   (a)attempted, by the service of Form R40 Notices, to intitiate [sic] negotiations with various employers in the manufacturing sector in, inter alia, each State of Australia in relation to:

   (i)the implementation of the Certification Initiative;

   (ii)acceptance of claims the same, or substantially the same, as the Log of Claims.

   Particulars

   Service of Form R40 Notices occurred, inter alia, in New South Wales, Victoria and South Australia.

   (b)in respect of those employers who did not enter into the certified agreemetns [sic] proposed by the second defendant, remained in a state of disputation with the same and, further, assisted its members, existing and potential, in the taking of industrial action against various employers:

   (i)with the intention of securing certified agreements as contemplated by the Certification Initiative;

   (ii)in furtherance of claims the same, or alternatively substantially the same as those set out in the Log of Claims.

   68In the circumstances set out in paragraphs 64 to 67 above, there existed an "industrial dispute" within the meaning of section 166A of the Workplace Relations Act (the Dispute), being:

   (a)an industrial dispute that was actual, alternatively threatened, alternatively impending, or alternatively probably,

   (i)extending beyond the limits of one state: and

   (ii)about matters pertaining to the relationship between employers and employees; or

   (b)alternatively to (a), a situation that was likely to give rise to an industrial dispute of the kind referred to in (a)."

2. It is then pleaded that if, which is not admitted, any of the second to eleventh defendants engaged in the conduct alleged, such conduct was that of an officer or member of the second defendant (as the case may be) acting in that capacity and in contemplation or furtherance of one or more claims that was the subject of the industrial dispute.

3. It is then pleaded that each of the actions pleaded in the statement of claim is an action in tort under the law of Western Australia, and the action had been brought without the plaintiff having first obtained either the certificate in writing mentioned in s 166A(6)(a) or (c) of the Act or the certificate in writing mentioned in par 6(b) of that section. Accordingly none of the actions could be brought by the plaintiffs against any of the second to eleventh defendants.

The plaintiffs' submissions

1. The plaintiffs contend that the defence does not plead conduct by the defendants in contemplation or furtherance of claims that are the subject of an "industrial dispute" within the meaning of s 166A(1) of the Act. In particular, the plaintiffs say that the conduct pleaded was not about matters pertaining to the relationship between employers and employees.

2. It was argued on behalf of the plaintiffs that there was not in the present case any dispute pertaining to the relationship between employers and employees.  The dispute concerned the refusal of the employer to enter into a certified agreement.  The certified agreement sought incorporated a log of claims but there was no plea that there was any dispute between the employer and the employees about the log of claims, or any of the specific matters in the log of claims, separate from whether or not the log of claims should be the subject of the certified agreement.  What was in dispute was simply a claim for a certified agreement, regardless of the contents of the agreement.  Moreover, the dispute was over whether or not the employer should enter into a certified agreement with the union.  There was no suggestion there was going to be a certified agreement between the employer and the employees.  What was contemplated was a union certified agreement.

3. It was submitted that a disagreement simply about whether or not an employer should enter into a certified agreement with a union can never be a matter pertaining to the relationship of employer and employee.

4. Counsel submitted that the fact that there was industrial action by the defendants did not establish the existence of an industrial dispute.  Industrial action is not of itself an industrial dispute.  While it is the manifestation of a dispute, it is not necessarily a manifestation of an industrial dispute, as defined.  It may, for instance, be the result of a political dispute.

5. Counsel relied heavily on the decision of the High Court in ReAlcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 ("Re Alcan"), and in Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 209 ALR 116, where a differently constituted Court re‑affirmed the reasoning in ReAlcan.

The defendants' submissions

1. It was argued on behalf of the defendants that this defence had been held by the Court of Appeal arguably to be open.  Counsel referred to AMWU v Bell‑A‑Bike Rottnest Pty Ltd [2005] WASCA 157, and in particular to the judgment of Roberts‑Smith JA at [53] and [55]. I should say, however, that I do not understand what his Honour said there, in relation to a pleading in quite different terms, to go so far as to support the defendants' contention that a pleading in the current terms would be an arguable defence.

2. It was argued that, in any event, the pleading plainly discloses an arguable defence. The pleading identified a national initiative, called the "certification initiative", to obtain, among other things, collective bargaining and the negotiation of replacement certified agreements, and a common expiry date for as many of those agreements as possible. It was pleaded that, in accordance with the certification initiative, the second defendant attempted to initiate negotiations with the first plaintiff in relation to its wish to secure a certified agreement which included a stipulated log of claims. Following the refusal by the first plaintiff to enter into the proposed certified agreement, the second defendants served a notice of intention to commence action pursuant to s 170MO(2) of the Act and then commenced industrial action.

3. The defendants plead that disputation thereafter occurred in relation to whether the certified agreement ought to be entered into and in relation to the various claims set out in the log of claims.  They also plead that the second defendant attempted to initiate negotiations with employers in each State of Australia in relation to the certification initiative, and acceptance of the same or similar claims in a log of claims, which resulted in ongoing disputation.  Although the pleading does not elaborate upon the content of the log of claims, it was submitted it is self evident that they pertained to the relationship of employer and employees as such.  In any event, it is enough on an application of this nature that on the pleading it would be open to the defendants to prove facts at trial that would constitute a cause of defence.

4. It was submitted there was at least an arguable case that the defence pleaded an interstate industrial dispute.  The dispute clearly had an industrial nature and an interstate element.  Moreover, the statements of the High Court in ReAlcan that the existence of an industrial dispute is essentially a question of fact makes it inappropriate to resolve matters of the nature raised by the plaintiffs on an application of this sort.

Whether the pleading discloses an arguable defence

1. The principles to be applied on an application of this nature are well established.  A pleading will only be struck out disclosing no reasonable cause of action where the claim is plainly unarguable, and great care must be exercised to ensure that a plaintiff is not improperly deprived of the opportunity to have its case determined at trial: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, at 130. Courts at first instance should also be careful not to risk stifling the development of the law by summarily rejecting claims where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, at 373.

1. The essential matter in issue was whether the matters pleaded in the defence amounted to an "industrial dispute" within the meaning of s 166A of the Act, and in particular whether they constituted a dispute pertaining to the relationship between employers and employees in their capacity as such, or whether they were simply a dispute as to the form of the industrial agreement to be made between the employers and a trade union, and therefore fell outside the definition of an "industrial dispute" in s 4 of the Act.

2. In Re Alcan the question was whether a demand made by a trade union that an employer deduct union fees from the wages of employees who requested or authorised that to be done and remit the dues to the union, was an "industrial dispute" within the meaning of s 4 of the Industrial Relations Act 1988 (Cth), and in particular, whether it was about a matter "pertaining to the relationship between employers and employees". The High Court held that it was not, following an earlier decision of the Court in R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353. The Court concluded (at 107) that although the subject matter pertained to a relationship between employers and employees, it was a relationship involving employees as union members and not at all as employees.

3. The issues before the High Court in Electrolux Home Products Pty Ltd v Australian Workers' Union (supra) included first, whether a claim by a trade union that an employer agree to deduct a "bargaining agent's fee" from the wages of future employees who do not join a union and to pay that fee to the union, was a matter "pertaining to the relationship between employers and employees" within the meaning of s 170LI of the Act; and, secondly, if it was not, whether an agreement under s 170LI containing a term providing for such deduction and payment is an agreement pertaining to the relationship between the employers and its employees. The High Court re-affirmed that a matter pertains to the relationship between employers and employees if the matter affects the relationship of employers and employees in their capacity as such; see Gleeson CJ at [9], McHugh J at [80], Gummow, Hayne and Heydon JJ at [160] ‑ [161] and Callinan J at [241]. It also held that an agreement containing a term of any significance which did not pertain to the relationship between the employers and its employees was not a certifiable agreement under the Act.

4. The difficulty, it seems to me, with the plaintiffs' contention is that it appears to rely on an unduly narrow reading of the defence.  I do not consider that what is pleaded is simply a claim that the employers enter into certified agreements with the union.  Rather the defendants contend that there was a dispute about whether there should be certified agreements with the union and there was also a dispute about a log of claims that had been served on the employers and which would be included in any such agreement.

5. It is pleaded in par 66(a) of the defence that the second defendant gave notice to the first plaintiff pursuant to s 170MI of the Act of the initiation of a bargaining period, the notice including a log of claims that the second defendant stipulated should be dealt with in a certified agreement. It subsequently served a notice of intention to commence industrial action. It is alleged in par 66(c) that the second defendant then commenced industrial action, and scheduled other action subject to the response by the plaintiffs to the claims made by the second defendant and members of the second defendant. It is pleaded in par 66(d) that, from about 5 October 2000 until at least 4 June 2001, the second defendant remained in dispute with the first plaintiff, and with employers in other States, in relation to whether there should be a certified agreement between them and in relation to the various claims set out in the log of claims. It is alleged in par 67 that in that period the second defendant remained in a state of dispute with employers who did not enter into the certified agreement and it assisted its members in the taking of industrial action against various employers in furtherance of claims the same, or substantially the same, as those set out in the log of claims.

6. It is the case that the pleading does not identify the content of the log of claims and therefore does not make it plain that the matters dealt with in the log of claims pertained to the relationship between the employers and employees in their capacity as such.  But I do not consider that to be a basis upon which the defence should be struck out.  It is clear that on an application of this nature the question is not whether the facts pleaded are in themselves sufficient to give rise to a cause of action, but whether it would be open to the defendants on the pleading to prove facts at trial which would constitute a cause of defence: Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405 at 414. It would, in my view, be open to the defendants on the pleading to prove at trial that the log of claims pertained to the relationship between the employers and employees in their capacity as such.

7. As has been often stressed, it is a grave step to deny a party the right to argue a cause of action or defence at trial and pleadings should only be struck out as disclosing no arguable cause of action or defence in clear cases. In my view it cannot be said in this case that on the pleading the defence under s 166A of the Act, namely that the conduct alleged was conduct by the defendants in contemplation or furtherance of claims that were the subject of an industrial dispute about matters pertaining to the relationship between employers and employees in their capacity as such, is plainly unarguable.

8. I might also add that even if the matters pleaded were to be regarded as concerning simply a claim for a certified agreement, the question of whether a claim that an employer enter into with a registered trade union a certified agreement dealing with the terms of employment of the employer's employees is an industrial dispute within the meaning of s 166A of the Act is not, in my view, a matter appropriately to be determined on an application of this nature. I consider the position is not so clear that it is properly the subject of a pleading summons. It is a matter to be determined at the trial of the action.

9. I would dismiss the plaintiffs' application for leave to bring the application to strike out the defence.