Farah (Australia) Pty Ltd v National Union of Workers New South Wales Branch
[1997] FCA 891
•5 SEPTEMBER, 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - secondary boycott - textile importer seeking injunction to prevent former employees picketing business premises - whether the applicant established a serious case to be tried - whether supply of goods or services “hindered or prevented” - whether conduct engaged in by the appellant for the purpose of causing substantial loss or damage to the business of the respondent - whether the balance of convenience favoured the granting of an injunction - factors to be taken into account.
Industrial Relations Act 1996 (NSW), ss 134, 137, 139.
Trade Practices Act 1974 (Cth), ss 45D(1), 45DB(1), (2).
Australian Builders’ Labourers’ Federated Union of Workers (Western Australian Branch) v J-Corp Pty Ltd (1993) 42 FCR 452
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32
Mudginberri Station Pty Ltd v The Australasian Meat Industry Employees Union [1985] ATPR 40-574
Mudginberri Station Pty Ltd v The Australasian Meat Industry Employees Union (1985) 61 ALR 291
Sid Ross Agency v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760
FARAH (AUSTRALIA) PTY LTD V NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH & ORS
NG 706 OF 1997
SACKVILLE J
SYDNEY
5 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 706 of 1997
BETWEEN:
FARAH (AUSTRALIA) PTY LTD
APPLICANTAND:
NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH
FIRST RESPONDENTJOHN IVANCIC
SECOND RESPONDENTGREG KELLY
THIRD RESPONDENTPETER ROBERTS
FOURTH RESPONDENTRITA BAPTISTA
FIFTH RESPONDENTDANIEL RINGIS
SIXTH RESPONDENTDARREN AMBLER
SEVENTH RESPONDENTKELLY ENOKA
EIGHTH RESPONDENTBRENDON BOLAND
NINTH RESPONDENTVERNARD TAYLOR
TENTH RESPONDENTROSS AGATI
ELEVENTH RESPONDENTAARON RE
TWELFTH RESPONDENTANNA WILLIAMS
THIRTEENTH RESPONDENTANTHONY ATKINSON
FOURTEENTH RESPONDENTMARK WILSON
FIFTEENTH RESPONDENTLUCY FULLER
SIXTEENTH RESPONDENTJUDGE(S):
SACKVILLE J.
DATE OF ORDER:
5 SEPTEMBER, 1997
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be stood over for 14 days.
Liberty to apply be granted on 24 hours notice, including liberty to the applicant to renew its application for interlocutory relief.
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
APPLICANTAND:
NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH
FIRST RESPONDENTJOHN IVANCIC
SECOND RESPONDENTGREG KELLY
THIRD RESPONDENTPETER ROBERTS
FOURTH RESPONDENTRITA BAPTISTA
FIFTH RESPONDENTDANIEL RINGIS
SIXTH RESPONDENTDARREN AMBLER
SEVENTH RESPONDENTKELLY ENOKA
EIGHTH RESPONDENTBRENDON BOLAND
NINTH RESPONDENTVERNARD TAYLOR
TENTH RESPONDENTROSS AGATI
ELEVENTH RESPONDENTAARON RE
TWELFTH RESPONDENTANNA WILLIAMS
THIRTEENTH RESPONDENTANTHONY ATKINSON
FOURTEENTH RESPONDENTMARK WILSON
FIFTEENTH RESPONDENTLUCY FULLER
SIXTEENTH RESPONDENT
JUDGE(S):
SACKVILLE J.
DATE:
5 SEPTEMBER, 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Application
This is an application for interlocutory orders restraining 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.”
The application arises out of an industrial dispute between the applicant and fourteen of its employees who were employed to carry out store work at the applicant’s premises at Alexandria. It appears that the applicant terminated the employment of the fourteen on 22 August 1997, following a resumption of industrial action by them.
There are sixteen respondents to the proceedings. The first respondent is the National Union of Workers, New South Wales Branch (“NUW”). The second respondent is Mr Ivancic, an officer of NUW (“Mr Ivancic”). The remaining fourteen respondents are the former employees of the applicant. One of the fourteen (the eighth respondent) was not served and no order is sought against her. The applicant presses its claim for relief against all the other respondents. At the hearing of the application for interlocutory orders, Mr Kenzie QC, with Mr Nolan, appeared on behalf of all respondents except the eighth respondent and the fourteenth respondent. The fourteenth respondent, although he had been served with the applicant’s notice of motion and supporting affidavits, did not appear.
The issues that have been raised in the proceedings are important and not without difficulty. However, the application is plainly one that should be resolved promptly. Accordingly, this judgment is less elaborate than the issues perhaps deserve.
Mr Hatcher, with Mr Newall, appeared on behalf of the applicant. Mr Hatcher read a number of affidavits in support of the application for interlocutory relief. The affidavits were by Mr Milicevic, the applicant’s finance manager and company secretary; Mr Luxford, its marketing services manager; Mr Lasica, who applied for a position of storeman with the applicant at the end of August 1997; and Mr Stanton, a senior industrial advocate employed by the Chamber of Manufactures of New South Wales. None of the deponents was cross-examined. In addition, a film of the picket of the applicant’s premises, taken by Mr Luxford, was shown in Court. Mr Kenzie adduced no evidence on behalf of the respondents, other than the transcript of certain proceedings on 28 and 29 August 1997 before the Industrial Relations Commission of New South Wales (“the Commission”).
In these circumstances, there was no dispute as to the primary facts. However, Mr Kenzie submitted that the applicant had failed to establish that there was a serious issue to be tried on the causes of action on which the applicant relied to support its claim for injunctive relief. Mr Kenzie also submitted that, on the balance of convenience, interlocutory relief should be refused.
Background
The applicant is an importer of clothing which it distributes to retail outlets within Australia. The apparel produced by the company mainly comprises men’s trousers, but also includes men’s shorts, shirts and jackets. All imported apparel is transported to the applicant’s premises at Alexandria and distributed to retail outlets from those premises. Some of the garments are manufactured by an affiliate of the applicant, located in Fiji.
The ongoing dispute between the applicant and the NUW concerns claims by the union for a pay increase for its members employed (or formerly employed) by the applicant. On 24 July 1997, the fourteen respondents who were then employed by the applicant as stores personnel at its Alexandria premises, commenced a strike. On 25 July 1997, the applicant notified the dispute to the Commission. On the same day, her Honour Schmidt J commended that the striking employees return to work. The employees rejected the Commission’s recommendation and continued their industrial action.
On 28 July 1997, pursuant to s 134 of the Industrial Relations Act 1996 (NSW) (“Industrial Relations Act”) Schmidt J re directed the NUW, its officers and members to take all steps reasonably available to them to ensure there was a resumption of work by the applicant’s employees as soon as possible. Despite this direction, the employees did not return to work.
On the following day, Hungerford J made an order pursuant to s 137 of the Industrial Relations Act. This order named the fourteen persons who were on strike and directed them to return to work at 8.15 am the following day. The employees did return to work the following day, but remained at the applicant’s premises only for a few minutes before establishing what Mr Milicevic described as “a picket in the driveway entrance to the applicant’s premises”.
On 30 July 1997, Hungerford J made further orders pursuant to s 137 of the Industrial Relations Act. The substance of these orders was that the NUW and the second respondent to the present proceedings (“Mr Ivancic”) cease all industrial action, including but not limited to picketing, against the applicant as from 5.30 pm that day. The following day the striking employees returned to work and remained at work until 8 August 1997. During this period discussions concerning the claim for increased wages continued. However, the employees resumed industrial action on Friday, 8 August 1997.
On the following Monday, 11 August 1997, the NUW notified the dispute to the Commission. Following a compulsory conference held before Schmidt J, her Honour made a recommendation “in the strongest terms” that all industrial action cease immediately, that the parties resume discussions on the following Monday (when the applicant’s managing director was scheduled to return from overseas) and that all those involved undertake negotiations in good faith.
The following day the employees returned to work. On 21 August 1997, the applicant and the NUW reported back to Schmidt J. Her Honour set the matter down for a further report on 26 August 1997.
On 22 August 1997, the employees again withdrew their labour and set up a picket at the driveway entrance to the applicant’s premises. On the same day, the applicant gave a written direction to each of the employees to resume normal duties. When the employees did not comply with the direction, the applicant advised the employees that it regarded their employment as terminated.
On 25 August 1997, proceedings were reconvened before Schmidt J. Her Honour issued a certificate of attempted conciliation, pursuant to s 135 of the Industrial Relations Act. This is a certificate to the effect that reasonable attempts have been made to resolve the industrial dispute by conciliation (see s 135(2)), and is a necessary precondition to arbitration by the Commission. On the same day, her Honour made dispute orders pursuant to s 137 of the Industrial Relations Act. This section empowers the Commission to make a variety of orders when dealing with an industrial dispute in arbitration proceedings. The Commission’s powers include ordering a person to cease or refrain from taking industrial action.
The dispute orders made by Schmidt J were to the effect that the NUW, Mr Ivancic and the fourteen named employees
“are immediately to cease all and any industrial action, including but not limited to picketing, and to refrain from the conduct of any such industrial action against [the applicant]”.
The orders were to take effect from 3.15 pm on 25 August 1997, and were to remain in force for a period of 28 days.
Notwithstanding the dispute orders, the picket line was maintained outside the applicant’s premises. A copy of the orders made by Schmidt J on 25 August 1997 was given to each of the fourteen former employees on 26 August 1997 or on the following day.
On 27 August 1997, the applicant instituted proceedings in the Commission, seeking to enforce the orders made by Schmidt J on 25 August 1997. The proceedings were instituted pursuant to s 139 of the Industrial Relations Act, which requires the Commission to deal expeditiously with an alleged contravention of a dispute order. The Commission has a variety of powers, including the imposition of a penalty on an industrial organisation which, in the case of an industrial organisation that has not contravened an earlier dispute order, is not to exceed $10,000 for the first day the contravention occurs and an additional $5,000 for each subsequent day on which the contravention continues: ss 139(3), (4). On 28 August 1997, the application under s 139 continued before the Full Commission in Court Session, comprising Fisher P, Bauer and Glynn JJ.
On (or perhaps shortly before 29 August) 1997, the NUW appealed to the Full Bench of the Commission against the dispute orders made by Schmidt J on 25 August 1997. In consequence of the filing of such an appeal, the proceedings under s 139 of the Industrial Relations Act were adjourned. I was informed that the appeal is to proceed promptly, but that no date has been set as yet for the hearing of the appeal.
On 2 September 1997, the applicant filed an application and supporting affidavits in this Court. I made orders abridging the time for service of the application supporting affidavits until 2.15 pm the following day, 3 September 1997. At that time, Mr Howard appeared for most of the respondents and sought an adjournment. The matter was stood over until 2.15 pm on 4 September 1997, when the interlocutory hearing took place.
The Applicant’s Submissions
The applicant relies on five causes of action to support its claim for interlocutory relief. In each case, it submits that it has made out a serious case to be tried.
First, the applicant says that the respondents have contravened s 45D(1) of the Trade Practices Act 1974 (Cth) (“TP Act”). Section 45D(1) provides as follows:
“(1)...a person must not, in concert with a second person, engage in conduct:
(a)that hinders or prevents:
(i)a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or
(ii)a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and
(b)that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.”
The applicant puts its case under s 45D(1) in two ways. Its primary case is that
each respondent (the first person) is acting in concert with each other respondent (the second person);
the respondents have and are engaged in conduct which is hindering or preventing other persons (the third person) supplying apparel and transport services to the applicant (the fourth person);
the respondents have embarked on the conduct for the purpose of causing substantial loss and damage to the applicant’s business; and
the respondent’s conduct has already had the effect of causing substantial loss or damage to the applicant’s business.
The alternative case is that the respondents have acted in concert and engaged in conduct which has hindered or prevented the applicant’s customers acquiring goods from the applicant: s 45D(1)(a)(ii). The applicant says that it has made out, to the standard required for interlocutory relief, the purpose and effect necessary to support this alternative case.
Secondly, the applicant says that the respondents have contravened s 45DB of the TP Act. Section 45DB(1) provides as follows:
“(1) A person must not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (who is not an employer of the first person) from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia.”
The applicant put its case under s 45DB(1) of the TP Act as follows:
each respondent (the first person) acted in concert with the other respondents (the second persons);
the respondents have and are engaged in conduct which has had the effect of hindering or preventing the applicant’s Fiji supplier (the third person) from engaging in trade or commerce involving the movement of goods (apparel) between Fiji and Australia; and
the respondents have and are engaged in the conduct for the proscribed purpose.
Thirdly, the applicant submits that the respondents’ conduct has interfered with the contractual relations between the applicant and
its Fijian supplier;
its carriers;
its retail distributors; and
parties providing services to the applicant pursuant to a contract.
Accordingly, it is said that the respondents have committed the tort of interference with contractual relations.
Fourthly, it is said that the respondents have engaged in a conspiracy to effect an unlawful purpose, namely, interference with the applicant’s contractual relations.
Fifthly, the applicant submits that the respondents have committed a common law nuisance, by obstructing the entrance to the applicant’s premises and besetting those who wish to enter and leave.
The applicant further says that the balance of convenience lies in its favour. It contends that it is suffering serious and continuing losses; there is no countervailing prejudice to the respondents; and the proposed injunction is narrower than the orders made by Schmidt J in the Commission.
The Respondents’ Submissions
The respondents contend that the applicant has failed to establish that there is a serious issue to be tried in relation to any of the causes of action upon which the applicant relies. In particular, they say that the applicant has failed to adduce sufficient evidence that the picketing of the applicant’s premises hindered or prevented the supply of goods or services by suppliers to the applicant. Similarly, it is said that the applicant has failed to adduce sufficient evidence that the applicant’s customers have been hindered or prevented from acquiring goods from the applicant. The respondents also contend that the applicant has failed to show that the respondents engaged in the conduct for the proscribed purpose specified in ss 45D(1)(b) and 45 DB(1) of the TP Act. Finally, they submit that the evidence falls well short of showing that there is a serious issue to be tried in relation to any of the common law causes of action invoked by the applicant.
The respondents submit that, in any event, the balance of convenience lies against the award of an injunction, at least at this stage. They point to the fact that Schmidt J made dispute orders in the Commission on 25 August 1997 and that enforcement proceedings are under way in the Commission. They submit that this is an important factor to take into account in assessing whether this Court should grant interlocutory relief. Especially is this so, where the terms of the proposed order are made and would impinge on the ordinary freedom of the individuals to demonstrate in support of what they say are their industrial entitlements. They also submit that the evidence, although showing that the applicant is sustaining continuing losses, falls well short of demonstrating that there is any risk to its survival.
Serious Issue to be Tried
The word “hinders”, as used in s 45D(1) of the TP Act, has received a broad interpretation. In Australian Builders’ Labourers’ Federated Union of Workers (Western Australian Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 (Fed Ct/FC), Lockhart and Gummow JJ adopted (at 459) what was said by Mason CJ in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32, at 45-46:
“Further, it cannot be, and indeed was not, suggested in argument that the notion ‘direct’ is inherent in either of the words ‘hinder’ or ‘prevent’. ‘Hinder’ has been construed in England ‘in the general sense of in any way affecting to an appreciable extent the ease of the usual way of supplying the article’ (emphasis added): Tennants (Lancashire) Ltd v C.S. Wilson and Co Ltd ([1917] A.C. 495, at 513-514), per Lord Dunedin; Peter Dixon and Sons Ltd v Henderson, Craig & Co. ([1919] 2 KB 778, at 786). What was there said in relation to hindrance of supply would apply with equal force to hindrance of acquisition. The comments of Gibbs J relating to the words ‘prevent or hinder’ in Reg. v Bell; Ex parte Lees ((1980 146 CLR 141 at 147-148), must be seen in the context of that case. As his Honour observed, a broad construction would have effected a very drastic interference with ordinary civil rights ((1980) 136 CLR, at 148). There is no similar reason for rejecting a broad interpretation of those words in this case. As has been said, such an interpretation is entirely consonant with the purpose of the section.”
Lockhart and Gummow JJ pointed out that, although Mason CJ dissented in Devenish, this passage drew no direct disagreement from the majority. Their Honours also point out that Mason CJ (at 42-43), Deane J (at 51-52) and Toohey J (at 58) eschewed any construction of s 45D(1) “which sought to fit it within some pre-conceived notion of what constituted a paradigm case of a ‘secondary boycott’”.
The evidence seems to me sufficient to establish that there is a serious issue to be tried on the question as to whether the applicant’s suppliers have been hindered in providing goods and services to the applicant. There was, for example, documentary evidence that the customs brokers used by the applicant had advised that they were unable to deliver a particular cargo of goods from Fiji “as none of our drivers are prepared to cross the picket line at your premises due to the possible future ramifications it might cause to them and our company”. There was also documentary evidence from one of the applicant’s regular carrier, in the form of a letter of 27 August 1997, expressing regret that “due to the current union problems and picket line operating we are unable to act at this time”. A company which supplies spring water to the applicant advised in writing that its driver was unable to make delivery due to the picket line outside the applicant’s premises.
It seems to me that this evidence, together with other evidence relied upon by the applicant, could be sufficient to establish that the activities of the picket affected to an appreciable extent the ease of the usual way of the supply of goods and services to the applicant at its premises, and, therefore, hindered that supply within the meaning of s 45D(1): see BLF v J-Corp Pty Ltd, at 463, per Lockhart and Gummow JJ. Accordingly, the applicant has made out that there is a serious question to be decided in relation to this issue.
The question of purpose is, perhaps, a little more difficult. The applicant relies on evidence from Mr Stanton that he had a conversation with Mr Ivancic on 25 August 1997, at the Commission. According to Mr Stanton, Mr Ivancic said this:
“The economic problems they are having now [are] just the tip of the iceberg compared with the trouble we could cause them further down the line.”
Depending on the context, this comment may or may not demonstrate that Mr Ivancic and, therefore, the NUW had the proscribed purpose. However, Mr Ivancic did not give evidence and, in my opinion, the comment is capable of being taken to indicate that the purpose of the respondents was to cause substantial loss or damage to the applicant’s business. Evidence was also given by Mr Luxford of a conversation with the proprietor of another of the applicant’s regular carriers, Blue/White Transport. According to Mr Luxford, the proprietor said that an officer of the NUW had telephoned him with the express purpose of ensuring that his company was not delivering freight to the applicant.
In assessing whether there is sufficient evidence of purpose, it is necessary to take account of s 45D(2) of the TP Act, which provides that
“A person is taken to engage in conduct for a purpose mentioned in subsection(1) if the person engages in the conduct for purposes which include that purpose.”
The analysis in BLF v J-Corp Pty Ltd, suggests that the Court must assess whether it is open on the evidence to find that the “real reasons” for the conduct of the respondents were such as to bring the conduct within s 45D(1): BLF v J-Corp Pty Ltd, at 465-466.
I think that the evidence is sufficient to establish that there is a serious issue to be tried as to whether the “real reasons” for the conduct of the NUW and Mr Ivancic were to cause substantial loss or damage to the applicant’s business. I am less sure that such a case has been made out in relation to the remaining respondents. There was no direct evidence of anything said by any of them that would shed light on their “real reasons” for engaging in the picketing of the applicant’s premises. In these circumstances, the matter must be left to inference from all the circumstances. Not without hesitation, I conclude that there is a serious issue to be tried in relation to the purpose of the respondents other than the NUW and Mr Ivancic.
I do not think it necessary to consider the other causes of action relied on by the applicant in any depth. I am inclined to the view that the applicant has made out a case that there is a serious issue to be tried in relation to the alternative claim under s 45D(1). It may be necessary in due course to consider the significance of Devenish v Jewel Food Stores.
My tentative view is that the applicant has not made out that there is a serious issue to be tried in relation to its case under s 45DB(1) of the TP Act. The purpose that must be established under that sub-section is that of “preventing or substantially hindering [the applicant’s Fiji affiliate] from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia”. There appears to be little or nothing in the evidence that suggests that any of the respondents had that purpose in mind, as distinct from the purpose identified in s 45D(1)(b) of the TP Act. Of course, the evidentiary position may change on a final hearing.
I do not think that the applicant has established, to the requisite standard, that it has a cause of action for inducing breach of contractual relations or for conspiracy to induce such a breach. There are some vague references in the evidence to ongoing arrangements between the applicant and its regular carriers and its substantial customers. However, the applicant did not adduce evidence of the terms of any contracts. It is not apparent, for example, that the refusal of the carriers to convey the applicant’s goods involved them in any breach of contract. Nor is it apparent that there has been a breach of any contract between the applicant and its major customers, nor of any contract that may exist between the applicant and its Fiji associate.
It is clear that if picketing involves obstruction and besetting, including obstruction of the entrance to premises and besetting of those who wish to enter or leave the premises by motor vehicle, the tort of nuisance is committed: Sid Ross Agency v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 (NSW SCt/CA), at 764-768. In my opinion, the evidence adduced by the applicant falls short of establishing that there is a serious issue to be tried on the question of whether the respondents engaged in “obstruction and besetting” in the relevant senses.
Balance of Convenience
The evidence of Mr Milicevic shows that the establishment and maintenance of the picket has caused significant financial loss to the applicant. According to Mr Milicevic, August and September are traditionally the heaviest selling months for the applicant. Since the establishment of the picket, two of the applicant’s usual carriers have not entered the applicant’s premises, although one (Blue/White Transport) has provided limited services with respect to goods that the applicant was able itself to deliver to that carrier’s premises between 22 August 1997 and 29 August 1997. The applicant’s customs broker has been unable to deliver cargo, because none of its drivers is prepared to cross the picket line maintained outside the applicant’s premises. These difficulties have lead the applicant to give instructions to its affiliate in Fiji to cease shipping further garments to Australia. As at 2 September 1997, the equivalent of three days’ production of garments had been blocked (a total of about 9,000 garments).
The applicant has commercial contracts for the supply of apparel to a number of major retail outlets. These account for approximately sixty percent of the applicant’s business, the balance of the business being with small chains and individual independent retailers. For commercial and contractual reasons, the applicant has chosen to supply major retailers, before it supplies goods to its smaller customers. Adopting this approach, it has been able to service the major customers, but has not been able to meet stock service orders and “indent” orders placed by smaller clients. (An indent order is a specific order made by a customer, for goods to be made to specifications and to be delivered within a nominated period.)
Mr Milicevic’s evidence shows that the supply of goods to major contractors has been carried out at substantially increased cost to the applicant, because it has been forced to use carriers with whom it does not have on-going commercial arrangements. It is said that if the present situation continues, it is unlikely that the applicant will be able to service any of its indent orders and that the whole of the indent orders for September are likely to be lost. Mr Milicevic says that the damage to the applicant “could be in the order of $611,000”, the value of the indent orders for that month. I infer that, if the picket continues, the applicant will not be able to fulfil all stock service orders given by smaller retailers, these being generally for the basic items which the applicant produces. However, it is difficult to say from the evidence what losses are likely to flow from the inability to fulfil stock service orders placed by smaller customers.
Mr Milicevic states that the inability to fulfil orders will have longer term effects, although the evidence of this, perhaps necessarily, is somewhat vague. Mr Milicevic says that individual customers, purchasing from an independent or small chain store, may change brands because of the inability to secure the applicant’s product. Those individual customers may be lost to the applicant for good, or at least for a substantial period of time. Mr Milicevic also says that smaller retailers may switch to a different supplier, and the business may be impossible to retrieve. There may also be some resentment by independent retailers or small chains that the majors are being supplied with the applicant’s goods during a period of industrial disputation, while their supplies have been cut off or reduced.
Clearly, the losses sustained and likely to be sustained by the applicant are very important factors in assessing the balance of convenience in this case. But it is necessary to consider other factors. In particular, as I have mentioned, the Commission has made dispute orders pursuant to s 137 of the Industrial Relations Act. These require the NUW and the fourteen former employees to cease all and any industrial action, including picketing. That order is wider than any order that is sought or could be made in respect of a contravention of s 45D(2) or s 45DB of the TP Act: compare the orders by Beaumont J in Mudginberri Station Pty Ltd v The Australasian Meat Industry Employees Union [1985] ATPR 40-574, at 46,665. Nonetheless, it relates to very similar conduct to that which the applicant seeks to restrain on this application. Contravention of the Commission’s orders renders the NUW (although apparently not the former employees) liable to a very substantial daily penalty. Proceedings for enforcement of the dispute orders are under way in the Commission in Court Session, although they have been adjourned pending the appeal against the dispute orders to the Full Bench. The Commission in Court Session is a superior court of record, equivalent in status to the Supreme Court of New South Wales: Industrial Relations Act, s 152(1), (2). The applicant has not withdrawn its application for enforcement of the dispute orders made by Schmidt J.
As I have indicated, the applicant has suffered significant losses, although the evidence does not permit any precise quantification of those losses to date. If the picket continues, the losses will continue. If the applicant is unable to fulfil any indent orders during September 1997, the losses may be in the order of $600,000, and there may also be further losses associated with the applicant’s inability to fulfil stock purchase orders placed by independent retailers or smaller chains. I reiterate that these losses constitute an important element in assessing the balance of convenience.
In my opinion, however, it is a most material countervailing factor, in assessing the balance of convenience, that a superior court of record is currently considering, on the application of the present applicant, enforcement of an order which exposes one of the current respondents to severe pecuniary penalties. In my view, considerable caution should be exercised before the Court makes a further order in respect of very similar conduct, breach of which orders would expose the parties to severe sanctions: Mudginberri Station Pty Ltd v Australasian Meat Industry Employees Union (1985) 61 ALR 291 (Fed Ct/Bowen CJ).
I do not suggest that the currency of enforcement proceedings in the Commission, or in a similar body exercising enforcement powers, is necessarily a complete bar to interlocutory relief in proceedings brought under s 45D of the TP Act, or in proceedings brought under the common law: cf Industrial Relations Act, ss 141-142 (preventing an action in tort, but only while conciliation proceedings are under way in the Commission); TP Act, s 80AA. Nonetheless, I think that it is generally desirable to avoid two concurrent sets of orders in the nature of injunctive relief, issued by two separate courts or tribunals, in respect of essentially the same conduct. Of course, the circumstances may be such that it is appropriate for the two sets of orders to co-exist, notwithstanding the prospect of two sets of enforcement proceedings in two superior courts in respect of essentially the same conduct.
I do not think that the present circumstances are such that it is appropriate, at least at this stage, for two sets of orders to co-exist in respect of similar conduct. This is not a case, in my view, where the applicant faces the immediate prospect of irremediable losses. It is certainly suffering continuing financial losses, but the relief it claims in the principal proceedings includes damages against the respondents in respect of those losses. While the applicant may suffer some long term losses attributable to the defection of customers, I do not think it likely that any such losses, at least at this point, are significant. In any event, I think that if the losses occur they can be quantified for the purpose of assessment of damages. There is nothing to suggest that the NUW, at least, will be unable to meet any damages that may be awarded against it, should the applicant ultimately succeed in the proceedings. I also take into account that, although I think the applicant has established that there is a serious issue to be tried in relation to the claim under s 45D(1) of the TP Act, I do not regard the applicant’s case as by any means overwhelming. As I have already said, I think that the evidence thus far adduced, that the former employees had the proscribed purpose, is not strong.
In my view, the appropriate course is to refuse the application at this stage, but to stand it over for a short period, with liberty to restore on 24 hours notice. If the position changes in significant respects in the meantime, I reserve the right to the applicant to renew its application for interlocutory relief. I have in mind that the proceedings in the Commission might come to a conclusion, for example, by the appeal against Schmidt J’s orders being determined. Alternatively, it may become clear that the appeal cannot be considered for a considerable time. Again, the applicant may be able to demonstrate that the continuation of the picket beyond today is causing irremediable losses to it and that these materially alter the balance of convenience in relation to the grant of interlocutory relief.
Accordingly, I make the following orders:
Stand the application over for 14 days.
Liberty to apply on 24 hours notice, including liberty to the applicant to renew its application for interlocutory relief.
I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville
Associate:
Dated: 5 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 J. Nolan Solicitor for the first to seventh, ninth to thirteenth and fifteenth and sixteenth Respondents: Maurice May & Co. Date of Hearing: 4 September, 1997 Date of Judgment: 5 September, 1997
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