Caterpillar of Australia Ltd v Gorman
[2000] VSC 267
•8 June 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 5643 of 2000
| CATERPILLAR OF AUSTRALIA LIMITED | Plaintiff |
| v. | |
| RAYMOND GORMAN AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 7 JUNE 2000 | |
DATE OF JUDGMENT: | 8 JUNE 2000 | |
CASE MAY BE CITED AS: | CATERPILLAR OF AUSTRALIA LTD. v. GORMAN & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 267 | |
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CATCHWORDS: Industrial dispute – Interlocutory injunction to prevent unlawful behaviour by picketers – Serious issue to be tried – Balance of convenience in favour of employer.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. Stuart Wood | Mallesons Stephen Jaques |
| For the Defendants | Mr. Kevin Bell Q.C. and Mr. Kamel Farouque | Ryan Carlisle Thomas |
HIS HONOUR:
I have before me an application by Caterpillar of Australia Ltd (Caterpillar) for an interlocutory injunction restraining seven individuals from picketing its premises at 1 Caterpillar Drive, Tullamarine. All of the individuals against whom the injunctive relief is sought are members of the National Union of Workers. Six of them are employees of Caterpillar, the seventh is a union official. The picket line has been in place since 4 May 2000. However, since that date the activities of the picketers have escalated to the point where significant harassment of Caterpillar's employees and others is occurring when those persons seek to enter or leave the premises. In addition, very limited access to the premises is being given to vehicles, thereby cutting off the supply of materials to Caterpillar's distribution centre. The losses suffered by Caterpillar to date as a consequence of the picket are estimated to now exceed $1m.
The material placed before the court on behalf of Caterpillar in support of the application is voluminous. No useful purpose will be served by setting out the detail of it in my reasons for judgment.
Suffice it to say that the activities of picketers including the defendants have included throwing planks and blocks of wood at trucks entering the site, throwing rocks and eggs at vehicles passing through the picket, throwing wooden pallets and other pieces of wood on to the roadway in front of vehicles and, in one case, slashing the tyres of an employee's vehicle whilst the vehicle was parked at his home. Members of the picket line have intimidated drivers in various ways with a view to preventing them entering the premises. Whereas previously 100 to 110 vehicles entered Caterpillar's premises on a working day delivering materials to and from the distribution centre, because of the picket that number has been reduced to approximately 28. Further, vehicles delivering or picking up materials can only enter the premises under police escort at 11 a.m. each morning and leave at 4 p.m. each afternoon, and then no more than seven vehicles on each occasion.
As I have already observed, to date it is estimated that Caterpillar has suffered a loss of approximately $1m. as a consequence of the picket. The picket is also endangering the safety of its other employees, security guards, truck drivers, contractors, customers and suppliers.
At the present time there are approximately 200 containers with stock in them worth close to $10m. in freight terminals and depots awaiting delivery to Caterpillar to urgently replenish stock at the distribution centre located at the premises.
For Caterpillar to operate successfully it requires unrestricted access to its premises.
As the first two defendants have not been served with the plaintiff's writ and other documentation they were not represented at the hearing before me yesterday.
Counsel for the other defendants raised four matters on their behalf in opposition to the plaintiff's application. They were:
1.In the main the events relied upon by the plaintiff occurred approximately two weeks ago and there is no longer any need for making the orders the plaintiff seeks.
2.The police have developed a rapport with the picketers and it should be left to them to deal with any problems which may arise.
3.If the plaintiff wishes more trucks to have access to the premises for the purpose of delivering and picking up goods it should arrange for more trucks to come to the premises to see if they can gain access. As the plaintiff has not taken that step the application for injunctive relief is premature and should be refused.
4. The orders sought by the plaintiff are too wide.
Before dealing with each of those aspects of the application, it must be remembered that this is not the trial of the proceeding but the hearing of an interlocutory application. My principal function is to determine whether there are serious issues to be tried in the case and, if so, where the balance of convenience lies.
In so far as the defendants' first contention is concerned, whilst there is no doubt that many of the incidents relied upon by the plaintiff occurred between 18 May and 26 May, the fact is that it is still necessary for the police to attend at the premises twice a day and trucks only come in to load or unload at the distribution centre with a police escort.
When the picket line was first established on 4 May, the first defendant Ray Gorman, who is an organiser for the union, told the plaintiff's manager, Raymond Leslie Fraser, that nothing was to be moved out of the distribution centre and, save for those vehicles that have gained access to the premises, usually with the police escort, that is what has occurred. In other words the picket line has substantially achieved its objective.
It is strongly arguable therefore that if the plaintiff is not granted the relief it seeks that state of affairs will continue.
The argument that any problems with the picket line should be left to the police is one that does not impress me. Whilst I note the content of paragraph 28 of Mr Gostencnik's affidavit, the fact of the matter is that the police do not have the resources to adequately police the picket line, as they have made clear to the plaintiff's manager Fraser and its assistant human resources manager, nor should they be required to do so.
Indeed it is interesting to note the following paragraph in the affidavit of the process server Robert Preac, who was instructed to effect service of the plaintiff's writ and supporting documentation on the defendant Gorman:
"I contacted Keilor Downs Police Station and spoke with Sergeant Darren Tanis who stated that he did not think it was appropriate to serve the defendants on the picket line as the situation was volatile and he had also spoken with his superior and the security manager Mick Rochford. He stated that the police are attending the site to keep the peace as the protestors have caused some problems in the past."
That conversation took place as recently as 6 June.
It may well be the case that the police have a rapport with those persons manning the picket line, but what of the activities of the picketers when the police are not in attendance?
As far as the suggestion that the plaintiff should in effect attempt to run the blockade with more trucks is concerned, I simply say that such a suggestion totally ignores the reality of the situation. If that was attempted, the high probability is that violence would break out, leading to physical injury. In that regard one need do no more than point to the incidents of rock and egg throwing sworn to in the various affidavits and the intimidatory tactics adopted by the picketers from time to time during the course of the dispute.
In the light of the large body of material before me there is no doubt to my mind that there are serious issues to be tried in the proceeding.
Where then does the balance of convenience lie?
In my opinion it is heavily in favour of the plaintiff.
To date the plaintiff has suffered significant financial loss as a consequence of the actions of the defendants and others on the picket lines, loss it will never recover. The longer its business is affected in the way it has been to date, so its financial loss will escalate.
As to the defendants, it is not suggested that they will suffer economic loss if certain of the orders sought by the plaintiff are granted. It is to be remembered that any orders I make will not affect the ability of the defendants to take part in a peaceful picket. They are only designed to prevent them from carrying out activities which by their very nature are unlawful.
As the usual undertaking as to damages has been given on behalf of the plaintiff, I make the following interlocutory orders in the proceeding. I propose to deal first with the orders against the third, fourth, fifth, sixth and seventh defendants:
1.The 3rd, 4th, 5th, 6th and 7th defendants (whether by their servants or agents or howsoever otherwise) be restrained until trial or further order:
a)from preventing, hindering or interfering with free access to and free egress from the site ("the site" is the plaintiff's premises at 1 Caterpillar Drive, Tullamarine as described in the site plan attached as "Appendix 1" to this order) by any person or vehicle;
b)from standing in line or in any other formation across any roadway or any other form of access leading to or away from the site or otherwise obstructing the movement of any person or vehicle on to or off the site;
c)from abusing, threatening, besetting, harassing, intimidating any person entering, leaving or about to enter or leave or who has entered or left the site, including from doing any of these things by the use of a megaphone or other amplification device;
d)from abusing, threatening, besetting, harassing or intimidating any person who is at the site, including from doing any of these things by the use of a megaphone or other amplification device;
e)from inducing, procuring, advising or persuading any person not to enter or not to leave the site, or attempting so to induce, procure, advise or persuade;
f)from taking a photograph or video of any person who is on, or who is entering or leaving or is about to enter or leave or has entered or left the site or attempting to take such a photograph or video in a threatening or intimidatory manner;
g)from damaging or interfering with any vehicle or the contents or load of any vehicle entering or leaving, or about to enter or leave, or which has entered or left the site, or attempting to so damage or interfere;
h)from injuring, assaulting or physically harming any person entering or leaving or about to enter or leave, or who has entered or left the site, or attempting so to injure, assault or physically harm; i) from besetting or following any person or vehicle approaching or on the way to, or in the course of or after departure from the site;
j)from causing, inducing, procuring or advising any person to do or attempt to do any of the things restrained by any of the subparagraphs (a) to (i) of this order.
2. The costs of this application be reserved.
3. I reserve liberty to the parties to apply.
4.I direct that within 24 hours this order be prepared by the solicitors for the plaintiff and brought to me for authorisation.
In the case of the first two defendants, my order will be –
1.Service upon the office of the National Union of Workers at 552-568 Victoria Street, North Melbourne 3051 of the writ and summons dated 5 June 2000 and this order shall be treated as good and sufficient service upon the 1st and 2nd defendants.
2.The 1st and 2nd defendants (whether by their servants or agents or howsoever otherwise) be restrained until 4.30 p.m. on Wednesday 14 June 2000 or further order - [sub-paragraphs (a) to (i) as in the previous order].
In the case of the three persons it is desired to join as parties, the order will read:
1.The plaintiff have leave to add Camille Somo, Cliff Redgwell and Gerry Glen as defendants to the proceeding and to amend the writ accordingly.
2.[To be identical to paragraph 2 of the order in respect of the first two defendants.]
Liberty to apply, reservation of costs and the authentication will also be in those last two orders.
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