Boral Australian Gypsum Ltd v Webb, A

[1993] FCA 726

726   , 4 3

JUDGMENT NO. .. .a .w. .#.o*omam.s*

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I	IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY No. VG 404 of 1993
GENERAL DIVISION )
B E T W E E N :

BORAL AUSTRALIAN GYPSUM LIMITED

ADDlicant - -

ALAN WEBB h ORS

Respondents

JUDGE :	Heerey J	m	RECEIVED
DATE:	22 Sentember 1993
2	-8 QCT 1993 kl
PLACE :

always difficult with these cases which inevitably come on at short notice and neither side can really produce all the evidence that they would like to, and I must stress that the court in such an application for that very reason is not giving any decision as to the final merits of the dispute. It will have been apparent during the course of the afternoon from my discussion with counsel that the law in this area is difficult and complicated, and there are also disputed questions of fact which can only be properly decided after cross-examination at a trial.

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would be no corresponding loss suffered by those engaged in	the applicant is suffering substantial loss, whereas there
the picket were an injunction to be granted. I am also I

I have come to the conclusion that the fairest order is to

grant an injunction but in limited terms for a limited time. I am influenced in coming to that decision by the fact that

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influenced by the fact that there is a remedy in the	I
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industrial arbitration area, namely before the Victorian State	L
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tribunal, which is open to the parties in cases of termination	I
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said to be unjust or unreasonable. That remedy has not yet !

been availed of and it seems highly desirable that at least	I
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attempts be made to achieve resolution in that area and avoid
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further disruption and loss on both sides.	I .
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It does seem to me that there is a triable issue for the	T

purposes of s.45D as to whether there has been hindrance.	It	i
is true there has been no test delivery set up and the	I:.	I ,'
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evidence of actual interference at the line itself is limited -

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to that one incident when the Rondel plaster truck arrived.	I	i-
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accept that were there more time available the respondents	!
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would put forward a version of that incident which is	1

different from that of the company's.	Nevertheless there is	/
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evidence, which is admittedly hearsay but admissible in these	I
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interlocutory applications, of attempts to obtain raw	I
materials form Redox Chemicals who declined on the grounds	: .
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that their transport drivers would not drive through the	\ :
picket lines.

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One would be shutting one's eyes to reality to ignore the fact

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that the very reason why pickets can be effective is that they	r ,
operate not merely as an expression of view to the world at	i
large, but are directed towards particular people and with the
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intention that those people should adopt a certain course of	I_
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conduct, namely not drive through the picket llne
However, there is some point in relation to the last respondent, the Construction Forestry Mining and Energy Union. On the face of the evidence that union has no connection with the applicant or this factory and the mere fact that one of its officers happened to be present is quite equivocal and consistent with that man being there for purposes unconnected with his employment with the union.
I will grant the injunction in terms of the draft order but it will only be until 4.15pm next week.

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I will delete paragraph 1 of the minute and add to paragraph 2, the words "and from trespassing on those premises." There will be an injunction in those terms until 4.15 pm on, I think Thursday, 30 September. I direct any further affidavits by the applicants by 4.00pm on Friday, 24 September be filed and

served. Direct any further affidavits by the respondents by	4.00pm on Tuesday, 28 September.
I will order that subpoenas issued be returnable on 30 September. So, upon the applicant giving its usual undertakings as to damages, I order that until 4.15pm on Thursday, 30 September, or further order, the respondents other than the first, third, ninth, tenth, thirteenth, fourteenth and twentieth respondents and each of them, are restrained from hindering or preventing the supply of raw materials to, or the supply of finished products from the applicant's premises at 676 Lorimer Street, Port Melbourne, and from trespassing on those premises.
I direct any further affidavits by the applicant be filed and
served by 4.00pm mon Friday, 24 September and any further affidavits by the respondents by 4.00pm on Tuesday, 28 September. Subpoenas which have been issued are to be returnable on 30 September and the application is adjourned until 30 September and the costs are reserved.

I certify that this and the preceding three (3) pages

-	are a true -copy of the reasons for judgment of his Honour Mr Justice Heerey.
Dated: 2 2 Se~tember 1993

As ociate

Appearances

Counsel for the applicant:  Mr Hatcher

Solicitor for the applicant:	J M Smith & Emmerton
Counsel for the respondent:	Mr K H Bell
Solicitor for the respondent:	Holding Redlich
Date of hearing:	22 September 1993