Consolidated Property Services (Australia) Pty Ltd v Liquor Hospitality & Miscellaneous Union

[2006] VSC 511

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 10013 of 2006

CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD & ANOR	Plaintiff
v
LIQUOR HOSPITALITY & MISCELLANEOUS UNION & ORS	Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 & 14 DECEMBER 2006
DATE OF JUDGMENT:	14 DCEMBER 2006
CASE MAY BE CITED AS:	CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD v LHMU & ORS
MEDIUM NEUTRAL CITATION:	[2006] VSC 511

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INJUNCTION – Application for interim and interlocutory injunction – Alleged misrepresentations about the plaintiffs’ business – Whether undertakings should be given by the defendants in lieu of an injunction.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr C. Pannam QC with Mr N. Frenkel	O’Donnell Salzano Lawyers
For the Defendants	Mr M. Bromberg QC with Mr N. Campbell	Ben Redford

HIS HONOUR: 

1. I have before me an application made by summons originally received on 29 November 2006 and amended on 13 December 2006.  The summons was issued on behalf of the plaintiffs and seeks interim and interlocutory injunctions restraining the defendants (who are the Liquor Hospitality & Miscellaneous Union and certain members or officials of that union) from making representations about the plaintiffs which the plaintiffs claim are both inaccurate and damaging to the plaintiff's business. 

1. I held yesterday, for the reasons which I then briefly gave, that in my opinion there is here a serious question to be tried as to the causes of action relied upon by the plaintiffs, and as to the factual basis upon which the plaintiffs rely in support of their application for the injunctive relief they seek.

1. The defendants, as I understand their position, accept that there has been put out in the past, by or on behalf of one or more of them, statements about the plaintiffs which arguably give rise in the plaintiffs to a cause of action against the defendants.  In other words, broadly speaking, as I understand the defendants' position, they accept that there is at least a serious issue to be tried on these points.

1. The defendants accordingly submit that they have in the period immediately preceding the hearing of the summons yesterday modified their behaviour in ways which should no longer give rise to any arguable course of action on the part of the plaintiffs.  The defendants submit, and I accept, that not only do they represent at least some of those who are employed by the first plaintiff, but also that they are currently engaged in a general campaign to support their members in their attempts to obtain the best possible working conditions, including wages, for those members and more generally for those who work in the industry.  That involves, as a necessary consequence, the defendants being interested in the state of cleanliness of buildings that are cleaned by their members and no doubt those who are not members but who do like cleaning work.

1. The interest of the defendants in the matters which I have outlined are, for the reasons which I briefly adverted to yesterday, entirely legitimate.  The plaintiffs for their part also have an entirely legitimate interest in the proper protection of their business and in calling upon the assistance of the law to secure that protection.

1. The several interests represented by the parties before me are not necessarily easily reconciled.  It is nevertheless the sometimes difficult job of courts, industrial tribunals and the like to seek to ensure that the boundaries between the several interests do not meet in irreconcilable ways.  The attitude of tribunals and courts to industrial disputes must reflect, it seems to me, the reality that there often arise competing interests with a boundary between them that is not always easy to draw - but which, with reasonable recognition by the parties of the interests of the other, and an appropriate acceptance by the parties of the necessity for the operation of the rule of law, ought to be accommodated.

1. With those principles in mind I approach the task which has been put before me this morning.  It is that of making orders or seeking undertakings that will enable the defendants to continue with their legitimate activities while preserving for the plaintiffs their equally legitimate right to the proper protection of their businesses.

1. Because of the delicacy of the relationship between employers and employees in circumstances such as presently obtain, there does seem to me some efficacy in looking at whether undertakings given by, in this case, the defendants, will serve the same purpose as would be served by the issue of injunctions or injunctive relief in protecting the interests of the plaintiffs.  I am inclined, despite my position as enunciated yesterday, to think that there is some benefit in looking towards undertakings rather than the imposition of injunctive relief.  There is no mechanism by which the defendants can be required to give any kind of quid pro quo for the court accepting that undertakings be given rather than injunctions be granted, but I would hope that if I accede to Mr Bromberg's submissions that undertakings are in these circumstances more appropriate than the issue of injunctive relief, the defendants will respond with an appropriate recognition of the difficulties in defining the limits of the undertakings and with an appreciation of the fact that statements can sometimes reasonably be said to imply that which is not explicitly contained within them; and that such implications can, of themselves, be as damaging as explicit statements.

1. By way of illustration of the general difficulties to which I have adverted in these remarks, could I point to the plaintiffs' present submission that the defendants should be enjoined from making representations the effect of which is that the first plaintiff does not permit its workers to use appropriate cleaning products when cleaning toilets.  In his submissions on behalf of the plaintiffs, Mr Frenkel points to a statement contained in a document which I understand the defendants concede they or some of them published.  It is to the effect that "some of the cleaners working in buildings cleaned by Consolidated Property Services say they have had no access to detergent for up to three weeks, just tap water".  Mr Frenkel contends that this is, if not explicitly then implicitly, a representation that the plaintiffs do not permit their workers, or at least the first plaintiff does not permit its workers, to use appropriate cleaning products when cleaning toilets.

1. I accept Mr Frenkel's submissions to the effect that this representation contains within it the implication that the first plaintiff does not provide its workers with cleaning products which enable them to clean toilets properly.  Hence the difficulty of arriving at a formula which will clearly delineate that which is permissible and that which is not.  There will necessarily be an area of doubt.  Although I cannot do more than seek the cooperation of the defendants in exchange for my acceding to Mr Bromberg's submission that undertakings be given rather than injunctions granted, nevertheless I would hope that the approach of the defendants will be informed by the matters to which I have adverted as some kind of unenforceable exchange for accepting that in this industrial context undertakings are more appropriate than injunctive relief.

1. The parties differ in the generality of the communications which they say should be eschewed by, or forbidden to, the defendants.  For the reasons put by Mr Bromberg in his submissions, it seems to me that the more general statements propounded by him on behalf of the defendants are more appropriate than the more specific statements sought by the plaintiffs to be the subject of injunctions. 

1. In my opinion, if undertakings are to be given they should include the following formula:

"Upon the defendants giving undertakings that until the hearing and determination of this proceeding or until further order, they and each of them, whether by themselves or their servants or agents or otherwise howsoever, will refrain from representing, publishing or distributing any communications to the general public (including the media and persons and companies who are parties to a cleaning contract with the plaintiff, or who work in or rent buildings cleaned by the first plaintiff) whether oral or in writing or in electronic form to the effect whether directly or by necessary implication that … “

And then would follow the three sub-paragraphs put forward by the defendants in their draft order.

1. It seems to me that those general undertakings cover those particular matters about which the plaintiffs are properly concerned and therefore provide that relief to which the plaintiff s are on an interlocutory basis properly entitled.

1. The next question is whether the orders themselves should contain a reference to that which they are not intended to do.  I accept Mr Frenkel's submissions to the extent that it seems to be inappropriate that the orders themselves should contain the interpretative words "proffered by the defendants in their suggested orders".  I am however inclined to think that under the heading "Other matters" something should appear which is intended to assist the parties to appreciate the limits of the undertakings which I intend to seek from the defendants.

1. In my opinion, it would not be unduly disruptive of the legitimate concerns and rights of the defendants were they to be enjoined on an interlocutory basis from specifically referring to the first plaintiff in any statement that the cleaning industry generally does not give its workers enough working time to properly clean.  I would be inclined to think that it would be appropriate under the heading "Other matters" to include a note that the undertakings sought and, on this hypothesis, given by the defendants are not intended to restrain the defendants from communicating to the effect that the cleaning industry generally does not give its workers enough working time to properly clean, but to indicate that any specific reference to the first plaintiff in this respect would be covered by the undertakings.

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