Farah (Australia) Pty Ltd v National Union of Workers New South Wales Branch
[1997] FCA 935
•15 SEPTEMBER, 1997
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 706 of 1997 |
BETWEEN: | FARAH (AUSTRALIA) PTY LTD | |
AND: | NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH JOHN IVANCIC GREG KELLY PETER ROBERTS RITA BAPTISTA DANIEL RINGIS DARREN AMBLER KELLY ENOKA BRENDON BOLAND VERNARD TAYLOR ROSS AGATI AARON RE ANNA WILLIAMS ANTHONY ATKINSON MARK WILSON LUCY FULLER | |
JUDGE(S): | SACKVILLE J. | |
DATE OF ORDER: | 15 SEPTEMBER, 1997 | |
WHERE MADE: | SYDNEY | |
THE COURT ORDERS THAT:
The application for an interlocutory injunction be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 706 of 1997 |
BETWEEN: | FARAH (AUSTRALIA) PTY LTD |
AND: | NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH JOHN IVANCIC GREG KELLY PETER ROBERTS RITA BAPTISTA DANIEL RINGIS DARREN AMBLER KELLY ENOKA BRENDON BOLAND VERNARD TAYLOR ROSS AGATI AARON RE ANNA WILLIAMS ANTHONY ATKINSON MARK WILSON LUCY FULLER |
JUDGE(S): | SACKVILLE J. |
DATE: | 15 SEPTEMBER, 1997 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
On 5 September 1997, I delivered judgment on an application for interlocutory orders to restrain the respondents from
“participating in any conduct, whether picketing or otherwise, at or near the premises of [the applicant] at 35 Bourke Road, Alexandria in the State of New South Wales, having or likely to have the effect of hindering any other persons entering, attending or leaving those premises.”
I made orders standing the application over for 14 days and granting the parties liberty to apply on 24 hours notice, including liberty to the applicant to renew its application for interlocutory relief. I shall not repeat what is said in the judgment, which should be read together with these reasons.
At about 2.30 pm on 10 September 1997, the applicant’s solicitor requested, in writing, that the matter be relisted. The letter noted that it was central to my reasoning in the earlier judgment that proceedings were under way in the Industrial Relations Commission of New South Wales (“Commission”) to enforce dispute orders made by her Honour Justice Schmidt against the National Union of Workers, New South Wales Branch (“NUW”) and the fourteen former employees of the applicant, to cease all and any industrial action. The applicant’s letter stated that earlier on that day (10 September 1997), the Full Bench of the Commission had decided that the dispute orders had been made without jurisdiction and thus should be set aside. It followed that the proceedings for enforcement of the orders under s 139 of the Industrial Relations Act 1996 (NSW) (“Industrial Relations Act”) were without foundation and would be discontinued.
I relisted the proceedings for 2.15 pm on 12 September 1997. Through my associate, I caused a letter to be sent to the represented parties giving directions for the filing of further affidavits. The letter invited the parties, without prejudice to any other issues they wished to raise, to address particularly (by further evidence or submissions, or both) the following issues:
whether there is a serious issue to be tried concerning the purpose of the individual respondents;
whether the applicant is suffering losses for which damages are not an adequate remedy; and
the form of orders (if any) that should be made.
At the hearing on 12 September 1997, Mr Hatcher, who appeared with Mr Newall for the applicant, tendered on behalf of the applicant the decisions of the Full Bench of the Commission (Maidment and Peterson JJ, Bishop C) of 10 September 1997. He also tendered a claim filed in the Commission on 9 September 1997 by the NUW, on behalf of the fourteen former employees, seeking relief from alleged unfair dismissal, pursuant to s 90 of the Industrial Relations Act. The grounds of the claim for relief allege, inter alia, that the applicant gave assurances during the course of negotiations that it would not victimise its store employees and that the (then) employees were encouraged “to go out on strike over the intolerable behaviour of senior management”. No issue arises in the present proceedings as to whether those grounds are or are not well-founded.
It was agreed by Mr Hatcher and Mr Kenzie QC, who appeared with Mr Goot for all but the eighth and fourteenth respondents, that I should have regard to the evidence read or tendered at the hearing held on 4 September 1997. Mr Hatcher read one additional affidavit, by Mr Luxford, going principally to the loss and damage sustained by the applicant. The affidavit annexed letters from two of the applicant’s regular carriers stating that neither they nor their contractors would be prepared to cross the picket line. In one case this was put down to “implied threats about possible retribution”. In the other, it was said that the carrier was “not in a position to risk being black banned at other majors as has happened to us in the past”. A letter from a third carrier was tendered which stated that “[o]ur policy is not to require drivers to cross picket lines because of the attendant dangers this can create”. The affidavit also annexed communications from three of the applicants’ customers dated, respectively, 8, 10 and 11 September 1997. Each communication cancelled or threatened to cancel orders by reason of late delivery.
For his part, Mr Kenzie read an affidavit from Ms Robson, the Office Manager of the NUW. The effect of this affidavit was that there was no record that a Mr John Tougall was an officer, employee or member of the NUW. At the earlier hearing, an affidavit had been read which recounted a conversation with the proprietor of a carrier, Blue/White Transport. That affidavit had suggested that, during the conversation, the proprietor claimed that Mr Tougall, who was said to be an officer of the NUW, had telephoned him with the express purpose of ensuring that his company was not delivery freight to the applicant.
As was the case at the first hearing none of the deponents was cross-examined.
Section 45DD(1)
In my earlier judgment, I did not refer to s 45DD(1) of the Trade Practices Act 1974 (Cth) (“TP Act”). That sub-section provides as follows:
“45DD(1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1)...by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.”
Mr Kenzie conceded that s 45DD(1) did not apply to the circumstances of the present case, because the former employees were no longer employed by the applicant. In other words, he accepted that s 45DD(1), which was inserted into the TP Act by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), was confined to conduct engaged in by a person who is currently an employee.
Purpose
Mr Kenzie invited me to reconsider the conclusion expressed in my earlier judgment that there is a serious issue to be tried as to whether the “real reasons” for the conduct of all respondents were to cause substantial loss or damage to the applicant’s business. He pointed out that there was now uncontradicted evidence that Mr Tougall was not an officer, employee or member of the NUW. He submitted, correctly in my view, that this evidence weakened the applicant’s case against the NUW and Mr Ivancic, since it undercut the significance of the conversation with the proprietor of Blue/White Transport. Mr Kenzie also pointed out that the applicant had not sought to adduce any evidence of statements by the former employees that would shed light on their “real reasons” for engaging in the picketing of the applicant’s premises.
While there is some force in Mr Kenzie’s submissions, I adhere to the conclusion expressed in my earlier judgment. Independently of the conversation involving the proprietor of Blue/White Transport, there is evidence that Mr Ivancic made a comment capable of suggesting that he (and therefore the NUW) had the proscribed purpose. Despite the express observation in my earlier judgment, that Mr Ivancic had not given evidence to explain the comment, he gave no evidence at the second hearing. This supports the view that there is a serious issue to be tried as against the NUW and Mr Ivancic.
As I remarked in the earlier judgment, the position is less clear in relation to the purpose of the former employees. As Lockhart and Gummow JJ noted in Australian Builders’ Labourers’ Federated Union of Workers (Western Australian Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 (Fed Ct/FC), at 467:
“[w]here purpose or other state of mind of an individual in relation to a given transaction is in issue, the statements of that person in the witness box, in a sense, provide the ‘best evidence’. But the court may well take the view that these statements should be tested closely.”
In this case, none of the former employees has given evidence of his or her purpose in participating in the picket. Of course, the absence of any such evidence cannot fill any gaps in the applicant’s evidence. However, I think that there is enough - although barely enough - to warrant the inference that the former employees, in the absence of any explanation by them, have the proscribed purpose. As I have explained, there is evidence that the NUW and Mr Francis have engaged in conduct for purposes which include causing substantial loss or damage to the business of the applicant (see TP Act, s 45D(2)). The evidence clearly enables the inference to be drawn that the NUW, through Mr Ivancic, is actually involved in organising the picket. While there is no direct evidence of any of the former employees stating their “real reasons” for maintaining the picket, there is evidence that, on more than one occasion, entry to or aggress from the applicant’s premises has been blocked, albeit temporarily, by the former employees then participating in the picket line. I think that this is sufficient to take the case, at least in determining whether there is a serious issue to be tried, beyond the circumstances discussed by Lockhart and Gummow JJ in BLF v J-Corp, at 465.
Having reached this conclusion, I should say that, on the evidence thus far adduced, the case against the former employees is not a strong one. The case somewhat stronger against the NUW and Mr Ivancic but, as I said in my earlier judgment, it is not by any means overwhelming.
Balance of Convenience
In assessing the balance of convenience, it is necessary to weigh up the competing claims of the parties: Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 (Fed Ct/FC), at 65. Mr Hatcher submitted that the balance of convenience favoured the applicant because it had sustained, and was continuing to sustain, significant losses and was likely to suffer long term damage as smaller customers switched their allegiance to other supplies. He pointed out that the concurrent proceedings in the Commission, for enforcement of the dispute orders, had been terminated. Moreover, Mr Hatcher argued that the respondents could not point to any serious prejudice to their interests that would justify withholding interlocutory relief from the applicant.
Mr Kenzie contended that the evidence of the applicant’s losses was incomplete and in some respects unsatisfactory. There was nothing to suggest that the applicant was in any danger of being forced to close. The general statements made by Mr Milicevic, in particular, as to the extent of the applicant’s losses to date should not be taken at face value. In any event, the evidence strongly suggested that the NUW had ample resources to meet any claim for damages that might ultimately be made out. The respondents, in particular the former employees, had legitimate interests that would be prejudiced if orders of the kind sought by the applicant were made. Those interests extended to what Spender J in BLF v J-Corp described (at 468) as the “important democratic freedoms” of speech and assembly, including the right to protest. The former employees, even though they were excluded from the protection of s 45DD(1) of the TP Act, have an ongoing industrial dispute with the applicant, reflected in the application filed on their behalf in the Commission, on 9 September 1997, seeking their reinstatement.
In my opinion, this is not an easy case in which to assess the balance of convenience. It should be approached, however, on the basis that the final hearing will be expedited and will be held by late October 1997, that is, no later than about six weeks from the date of this judgment. Inquiries I have made indicate that it will be possible for the final hearing to take place at that time. The parties have stated that they would be in a position for the hearing to take place at that time.
In my view, an important factor in assessing the balance of convenience in this case is the incomplete nature of the evidence of losses sustained or likely to be sustained by the applicant. I referred in my earlier judgment to Mr Milicevic’s evidence, which I considered showed that the establishment and maintenance of the picket had caused significant financial loss to the applicant. However, I also pointed out that it was difficult to say from the evidence what losses were likely to flow from the applicant’s inability (according to Mr Milicevic) to fulfil stock service orders placed by smaller customers. I also said that Mr Milicevic’s evidence about the longer term effects of the applicant’s inability to fulfil orders was “perhaps necessarily...somewhat vague”.
The additional evidence adduced by the applicant at the second hearing, on the question of damages, is significant both for what it does and does not say. Mr Luxford deposed on 11 September 1997 that, since 1 September 1997, despite the continuation of the picket, no attempt had been made to prevent entry or exit of the small vehicle rented by the applicant to move products whilst regular carriers refused to enter the premises. The affidavit did not address whether the applicant had contemplated hiring additional vehicles and, if not, why not. Mr Luxford further stated that, since swearing his last affidavit, sworn on 2 September 1997, the applicant “has been able to provide no more than a maximum of 80% of its usual outgoing per week”.
It is not clear whether this last statement is consistent with Mr Milicevic’s affidavit of 2 September 1997, which implied that the applicant might be unable to fulfil any indent orders during the industrial action and gave a figure of $784,731.20 for the total value of undelivered orders for August 1997. Be that as it may, the only documented evidence of cancellation or threatened cancellation of orders are the three communications to which I have already referred. Of these, two were partial cancellations of relatively small orders and the third, although complaining of late delivery, indicated a willingness to accept delivery of goods already despatched by the applicant, if they arrived on the day the letter of complaint was faxed.
Mr Luxford, in his affidavit of 11 September 1997, asserts that, although it is impossible to quantify the applicant’s damages at this stage, “it is clear that those losses will be of several hundred thousand dollars already”. Mr Luxford does not explain in his affidavit why it is impossible to attempt some quantification of the damages sustained by the applicant. I would have thought it feasible to set out the bases on which the responsible officers of the applicant have estimated actual or likely losses. The vagueness of this evidence contrasts with the precision of a letter of 29 August 1997, sent by the applicant to each of the respondents. In that letter, the applicant asserted that it had suffered $287,000 in losses by 26 August 1997 and was continuing to suffer losses “at the rate of $30,450 per day”.
Equally, I would have expected some effort to be made to explain why so few documented cancellations have apparently been received by the applicant. Mr Luxford frankly states that the applicant has continued to dispatch product to its customers notwithstanding that it is beyond the delivery date required. He expresses the belief that “some” customers will return the product, but he does not attempt to quantify the proportion or to explain why so few appear to have done so to date, notwithstanding that the picket has now been in place for some three weeks.
I should add that Mr Luxford also states that outgoing product is “mainly directed” to larger customers who, “whilst responsible for the bulk of turnover, contribute little to gross profit”. No figures are given to substantiate this vague statement and no explanation is offered as to the role played by the trade with larger customers in meeting what Mr Luxford describes as “overheads”. Indeed, the evidence does not include any financial statements from the applicant, which might shed light on its recent annual profits and the likely effect of the pricket on the current year’s projected profits. In the absence of such financial statements there is no reliable evidence as to the applicant’s usual turnover.
In my view, the evidence taken as a whole justifies the conclusion that the picket is causing losses to the applicant which are not insignificant. However, the evidence is insufficient to enable me to determine the likely extent of any losses that might be sustained by the applicant if the picket continues. Nor is the evidence sufficient to enable me to say that the applicant cannot take further steps to mitigate its losses, such as hiring additional vehicles. On the assumption that the final hearing will take place not later than about six weeks from today, I cannot say that the losses likely to be sustained by the applicant over that period, attributable to the conduct allegedly in breach of s 45D(1) of the TP Act, will exceed about $200,000. I have taken into account the assertion that the applicant may suffer some long term loss of business by reason of late deliveries. I should add that Mr Hatcher did not suggest that the applicant’s viability as a commercial entity was threatened by the conduct of the respondents.
The uncontradicted evidence shows that the NUW, as at 30 June 1996, had $2,396,078 in net assets. Total assets comprised $3,284,942, including $300,417 in investments and shares and $709,416 in current assets. While neither party chose to adduce evidence of the NUW’s financial position as at 30 June 1997, there is nothing to suggest that the union’s financial position has deteriorated to the point where it would be unable to meet any damages awarded against it in these proceedings. It follows that any award of damages in the present proceedings is likely to be met from the resources of the NUW, leaving aside the position of the former employees themselves. This does not, of course, remove the fact that the applicant is likely to suffer inconvenience and financial losses of the kind I have described during the currency of the picket. However, the availability of damages and the capacity of the NUW to meet any likely award of damages is a material factor to take into account on the balance of convenience.
In my view, it is also necessary to take into account the fact that any interim order is very likely to have the effect of preventing the respondents, in particular, the former employees, from engaging in any form of protest near the applicant’s premises. Mr Hatcher frankly stated that the effect of the orders sought by the applicant would be to prevent the respondents engaging in any form of picket at the applicant’s Alexandria premises. As Spender J’s observations in BLF v J-Corp indicate, not all picketing contravenes s 45D(1) of the TP Act or is otherwise illegal. The former employees have a strong interest in maintaining their protest since, despite the termination of their employment with the applicant, they are engaged in an industrial dispute with the applicant and are pursuing their claim for reinstatement in the Commission. In my opinion, if the orders sought by the applicant are made, the respondents will suffer significant prejudice, albeit not of a kind that is readily quantifiable in monetary terms.
Another consideration, indicating that some caution should be exercised before granting interlocutory relief to the applicant, is that the industrial dispute between the applicant and the respondents is the subject of a claim yet to be determined by the Commission. The existence of the claim for reinstatement is not as powerful a reason against the grant of interlocutory relief as was the application for enforcement of the dispute orders, considered in my earlier judgment. No orders have yet been made by the Commission and there appears to be no likelihood that any order ultimately made by the Commission will clash or overlap with the relief sought by the applicant. However, the fact that the Commission will be actively considering the industrial dispute which has given rise to the picketing of which the applicant complains, seems to me to be a factor which, although far from determinative, should be weighed in the balance.
In my view, the balance of convenience is in favour of the respondents. The losses suffered by the applicant in the short period before a final hearing can take place can be compensated for (assuming the applicant ultimately succeeds) through an award of damages. Having regard to this factor and the other considerations to which I have referred, I think that the prejudice to the respondents in granting the orders sought outweighs the prejudice to the applicant. Accordingly, I dismiss the claim for an interlocutory injunction.
Form of Order
Having regard to the conclusion I have reached, it is not necessary to consider the formal order proposed by the applicant. It is enough for me to say that I do not think an order in the form sought would have been appropriate, having regard to the desirability
“that an interlocutory injunction restrain, in explicit terms a particular activity so that the parties can be under no misapprehension as to what is intended, rather than be framed in terms which reflect the general language of the statute.”
Epitoma v AMIEU, at 65. However, I need not consider the precise form of any order that might have been appropriate, had I reached a different conclusion on the balance of convenience.
Conclusion
The application for an interlocutory injunction should be refused. I shall make directions for the further conduct for the proceedings, with a view to ensuring that they are ready for hearing within the period that I have indicated.
| I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville |
Associate:
Dated: 15 September, 1997
| Counsel for the Applicant: | Mr G.J. Hatcher and Mr P.J. Newall |
| Solicitor for the Applicant: | Haywards Solicitors |
| Counsel for the first to seventh, ninth to thirteenth and fifteenth and sixteenth Respondents: | Mr R.C. Kenzie QC and Mr R. Goot |
| Solicitor for the first to seventh, ninth to thirteenth and fifteenth and sixteenth Respondents: | Maurice May & Co. |
| Date of Hearing: | 12 September, 1997 |
| Date of Judgment: | 15 September, 1997 |
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