Gisborne Garden and Building Supplies Pty Ltd v Australian Workers' Union
[1998] FCA 1323
•16 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
TRADE PRACTICES – secondary boycott – whether serious question to be tried – whether conduct engaged in by the respondents amounted to “hindering” or “preventing” supply of goods.
Trade Practices Act 1974 (Cth) ss 45D, 80(1), 82(1),
Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR [41-583], discussed
Australian Builders’ Labourers’ Federated Union of Workers – (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452, applied
Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464, discussed
GISBORNE GARDEN & BUILDING SUPPLIES PTY LTD (ACN 074 357 841) v THE AUSTRALIAN WORKERS’ UNION, GRAEME RAE AND DONALD HENDERSON
VG 557 OF 1998
MARSHALL J
MELBOURNE
16 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 557 of 1998
BETWEEN:
GISBORNE GARDEN & BUILDING SUPPLIES PTY LTD
(ACN 074 357 841)
APPLICANTAND:
THE AUSTRALIAN WORKERS’ UNION
FIRST RESPONDENTGRAEME RAE
SECOND RESPONDENTDONALD HENDERSON
THIRD RESPONDENTJUDGE:
MARSHALL J
DATE OF ORDER:
16 OCTOBER 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The applicant’s application for interlocutory relief be dismissed.
The applicant pay the respondents’ costs of the application for interlocutory relief.
On or before 6 November 1998 the applicant file and serve any further amended Statement of Claim.
On or before 30 November 1998 the respondents file and serve their Defences.
On or before 4 December 1998 each party make, file and serve a list of documents relevant to any issue in the proceeding by reference to that issue. Such list be verified by affidavit.
There be mutual discovery by 18 December 1998.
The directions hearing be adjourned to 11.30 am on 1 February 1999.
Liberty to apply on not less than 48 hours written notice to each other party.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 557 of 1998
BETWEEN:
GISBORNE GARDEN & BUILDING SUPPLIES PTY LTD
(ACN 074 357 841)
APPLICANTAND:
THE AUSTRALIAN WORKERS’ UNION
FIRST RESPONDENTGRAEME RAE
SECOND RESPONDENTDONALD HENDERSON
THIRD RESPONDENTJUDGE:
MARSHALL J
DATE:
16 OCTOBER 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 14 October 1998 the applicant, Gisborne Garden and Building Supplies Pty Ltd (“the company”) made an application pursuant to ss80(1) and 82(1) of the Trade Practices Act 1974 (Cth) (“the Act”), in which it alleged that the respondents had contravened s45D of the Act.
The first respondent, the Australian Workers’ Union (“the Union”) is an organisation of employees registered pursuant to the Workplace Relations Act 1996 (Cth). The second and third respondents, Mr Donald Henderson and Mr Graeme Rae, are organisers employed by the Union in its Victorian branch. The company conducts a retail garden products supply business from its premises at 18 Brampton Street, Gisborne in Victoria (“the company’s premises”).
On 3 October 1998 a director of the company, Mark Greenshields, terminated the employment of an employee of the company, Michael Partridge. Michael Partridge is a member of the Union.
On 13 October 1998, together with another organiser employed by the Union, Rod Lineham, Messrs Henderson, Rae and Partridge attended at the company’s premises. On 14 October 1998 Mr Lineham did not attend at the company’s premises but the other organisers and Mr Partridge did attend.
The purpose of the attendance of those persons at the company’s premises was, in the words of Mr Henderson:
“…to bring to the attention of persons who were entering the Applicant’s premises the fact that the AWU was extremely concerned at the Applicant’s dismissal of Michael Partridge.”
In order to promote the Union’s position, in its dispute with the company concerning Mr Partridge’s dismissal, a brochure was prepared to be distributed to customers of the company.
Mr Henderson also gave evidence in an affidavit, upon which he was not cross examined that:
“At no time did I or any of the other persons who attended at the Applicant’s premises stand across the entrance to the Applicant’s premises, hinder, or prevent entrance to the Applicant’s premises. Upon attendance at the Applicant’s premises I had explained to each of Rae, Partridge and Lineham that all that was to be done was that persons who were entering the premises should be approached and given a copy of the brochure, be told that they were not going to be hindered or prevented in any way from entering the Applicant’s premises, but to have explained to them what it was the AWU was concerned about in the Partridge case. There were no banners or signs, or placards of any type at any time during our attendance at the Applicant’s premises.”
Mr Henderson also said that:
“The arrangements I had made with each of the other men were strictly adhered to. On each occasion that a vehicle came to enter the Applicant’s premises, the driver was approached from the driver’s side of the vehicle. Nobody stood in front or to the other side, or to the rear of the driver’s vehicle. The driver was approached, given a copy of the leaflet and the AWU’s position was explained and every time at which I was present I explained to the driver that he or she would not be prevented or hindered from entering the site. Similarly, I recall that on each occasion that I heard what Rae, Partridge or Lineham said I clearly recall that they also spoke in the same way. I have spoken to each of those men as to what they did during any time after I left the premises, they told me and I believe them that they acted exactly as I had told them to act and as I had seen them act when I was present at the premises myself. I do recall that when I was there and Partridge was speaking to drivers whom he apparently knew, he used such expressions as “the bastards have sacked me”. However, he made no attempt to hinder them or threaten to hinder them, or any threat of retribution against them if they were to enter.”
Prior to attending at the company’s premises on 13 October 1998, Mr Henderson contacted the Gisborne police on 12 October 1998 to advise them “what was going to happen”. He said that he probably referred to a “picket”. On 13 October 1998 the police came to the company’s premises, Mr Henderson gave evidence about his discussions with the police. He said:
“…I spoke to them and explained what we were going to do, stressing that all that would be done would be to hand the brochure to persons who were entering the site, to explain to them as briefly as possible what the problem was about Partridge having been terminated and to tell them that they were not going to be hindered or prevented in any way from entering the site. The police seemed quite content with that arrangement. They have not attended the site since.”
Leo Schemnitz was employed by the company’s solicitors to observe the activities undertaken by Mr Henderson and his colleagues. He gave evidence that he observed, during the course of 13 October 1998, about eight vehicles turn away after the driver had been spoken to by persons he described as “the picketers”. Mr Schemnitz only positively identified a truck with the livery of “J.H. & B.L. Mathers Transport” and “a vehicle from Ritchie Nottag”.
Mr Greenshields gave evidence that a Mathers truck was stopped at the company’s front gate at 8.50 am on 13 October 1998. Mr Greenshields said that:
“The driver then entered the premises and spoke to me. He advised me that he was told “to go home” and that this was an official picket line of the AWU. The driver said that he explained that he had to deliver the timber to vacate his truck for collection of a consignment in Melbourne. He said the picketers insisted that he “take his truck home”. He refused and his registration number was taken and he was told he was crossing an official picket line.”
In response Mr Henderson said that:
“I was present at the Applicant’s site at 8.50 a.m. on the morning that the Mathers Transport vehicle arrived. It was a semi-trailer. I recall that the driver had to back into the site. I saw Graeme Rae speak to him. Graeme Rae has told me and I believe him that he said to the driver that there was a dispute at the site, that he gave the driver a copy of the brochure, he told him that a member of the Union had been sacked, Graeme says that the driver replied to him, that the driver himself had once been sacked and the Union didn’t help him and that Graeme replied that he was sorry about that. He tells me that he then said to the driver, “it’s up to you, it’s your call” and handed him the leaflet and walked away from the truck. I recall that the driver then started to back the truck into the site and that I mentioned to him that there was an issue with the AWU about the sacking of one of its members. I told him that the worker has been sacked because he had refused to sign an Australian Workplace Agreement. He replied that he was on an AWA and was happy with it and that he only had a little bit of red gum to deliver. He had told me that after his red gum delivery he had to pick up some beer, and I told him that it was too far to take his truck home and that a bit of red gum wouldn’t make a difference anyway. I did not otherwise refer to the idea of taking his truck home, and I only mentioned it in the context of effectively encouraging him to deliver the red gum. I have spoken to Rae about this episode and he tells me and I believe him that at no time did he tell the driver in any way to go back home.”
Mr Greenshields said that Mr Nottag arrived at the company’s premises at 3.30 pm on 13 October 1998 in a truck containing a load of chicken manure. He said that the truck “was surrounded by picketers”. He further said that the truck remained outside the company’s premises for about an hour then departed without attempting to enter the company’s premises.
In response Mr Henderson said:
“I recall the delivery of chicken manure. The chicken manure vehicle was not “surrounded” by the AWU personnel. At that time there was only Partridge and myself there. I spoke to the driver at the driver’s side door and Partridge was close by me at the time. I gave the driver the leaflet, explained the issue about Partridge having been sacked. I told him that he was not being hindered or prevented from going on the site, it was up to him to decide. He told me that he wanted to drop the chicken manure because he had to go on and pick up some pig manure, and that he might be able to drop the chicken manure somewhere else, but he would need to make a phone call for that purpose. I offered him my mobile phone and he indicated that he didn’t know how to use it. Partridge then assisted him in using the mobile, the driver made a call, the driver then got back into his vehicle and simply sat there. Soon thereafter I left. I have been told by Rae and believe him that he arrived soon after my departure and the driver was still sitting there, that soon after he arrived he saw the driver drive off.”
Mr Greenshields also referred to a landscape gardener called Peter from Better Landscaping Pty Ltd. He said that at 7.40 am on 13 October 1998 Peter attended at the company’s premises and was given a brochure and warned “not to shop at the Applicant’s business but rather travel to Sunbury”. Peter entered the company’s premises. In response Mr Henderson said that:
“I recall the episode in relation to Peter from Better Landscaping Pty Ltd. When Peter came to the site each of Rae, Partridge and myself were present. I was the person who spoke to Peter. Graeme Rae gave him a copy of the brochure and I told him briefly that it was about Partridge having been terminated and told him that he would not be hindered or prevented from entering the site. He replied to what I had said by saying words to the effect, “where do I get my stuff from?” I told him in reply that there was another place called Roscoe’s but he said that he would sooner get it at the Applicant’s premises. Whereupon he drove through unhindered. I deny that in any way at all I warned him “not to shop at the Applicant’s business” and I deny that he was requested not to enter the Applicant’s premises.”
Mr Greenshields said that at 10.00 am on 13 October 1998 Ms Fleming, a representative of Excel Quarries, the company’s largest supplier, visited the company’s premises and told him that Excel Quarries had been advised on 9 October 1998 that the company’s premises would be picketed the following week and that Excel Quarries had been asked to refuse to supply the company. Mr Greenshields said that the company had placed an order with Excel Quarries which was to be delivered on 13 October 1998. He said that:
“Kay Fleming informs me that the truck was loaded for delivery but that Excel Quarries had been told the picket had commenced and the truck had been unloaded. Kay Fleming further told me that Excel Quarries would not be delivering to the Applicant unless they could “find a driver” who was prepared to cross the picket line. This was so even though all of Excel Quarries’ drivers were subcontractors who were required under contract with Excel Quarries to deliver as directed.”
Mr Greenshields said that he received a telephone call from Bill Lee, the Sales Manager of Excel Quarries, later on 13 October 1998. He said that Lee “advised” him that he (Lee):
“… did get a call from Don Henderson who was at the front of the Applicant’s premises. Henderson advised him not to cross the picket line. Lee said that Henderson threatened him with words to the effect of “we know you (Excel Quarries) deliver to other sites”. Lee said that none of his drivers were willing to deliver to the Applicant. There has been a second load prepared for delivery to the Applicant which has been unloaded after the phone call from Henderson.”
Mr Henderson, in response, denied making any request to Excel Quarries to refuse to supply the company. He said that no such request was made to his knowledge and that “I would be very surprised if anybody did make such a request.” Mr Henderson admitted telephoning Mr Lee. He said:
“I told him that we were outside the front gate of the Applicant’s premises and that we were attempting to look after the interests of a member who had been sacked by the Applicant. I told him that we had good relationships with Excel and that my call was for courtesy reasons. He said to me that he didn’t want to get into any trouble with the ACCC, the Australian Competition and Consumer Commission, and I told him that we didn’t want to interfere in any way with any contract he had with anybody. He told me that he thought that his own men would not want to enter the site under these circumstances anyway.”
Mr Henderson denied threatening Mr Lee. Mr Henderson said, of his conversation with Mr Lee:
“I did make reference to other sites for Excel deliveries, but only in the context of saying that the only site at which we were taking any action was the Applicant’s site and no other site. He did tell me that none of his drivers were willing to deliver to the Applicant. I did not warn Excel Quarries not to supply to the Applicant and I do not believe that any other AWU official gave any such warning.”
Mr Greenshields said that at 10.40 am on 13 October 1998 a truck from Gillespie Earthmovers arrived at the company’s front gate with a delivery of soil. He said that the truck “was surrounded by the picketers”. He further said that:
“Some 2 minutes later the truck departed without entering the Applicant’s premises. I knew who the driver of that truck was and I telephoned him on his mobile. The driver, Darren, told me that he was a member of the AWU”
In response Mr Henderson said that:
“I recall the Gillespie Earth Mover vehicle arriving at the Applicant’s site on the 13th of October. I deny that the Gillespie truck was “surrounded by the picketers”. It was a large truck with a dog trailer and there were only three AWU people present at the time, Rae, Partridge and myself. We all stood at or about the driver’s side door. I climbed up onto the running board and spoke to the driver, both Rae and Partridge were close by. I gave the driver the brochure and he said that he knew Michael Partridge, I heard Michael Partridge say to the driver words to the effect, that the Applicant had sacked him and the driver said words to the effect, that it was a nuisance that the Applicant hadn’t rung him to tell him about this business. As with every other driver to whom I spoke I told him about Partridge having been sacked, I told him that he was not hindered or prevented at all from entering the site, that it was a matter for him.”
Mr Greenshields gave some general evidence about the conduct of the second and third respondents and those allied to them on 13 October 1998. He said that they had:
“…confronted customers who wish to enter the Applicant’s premises in a hostile way and have made threatening and abusive remarks to them.”
In response to that part of Mr Greenshield’s evidence, Mr Henderson said:
“I refer to paragraph 38 of Greenshields’ first affidavit. I note that in the second and last sentences of that paragraph Greenshields speaks of “picketers” having “confronted” certain persons, and allegedly having acted in a hostile way and made threatening and abusive remarks to customers. I deny that I acted in any such way at all while I was present at the Applicant’s premises. I have spoken to each of Rae and Partridge and they tell me and I believe them that they too did not in any way confront or act in a hostile manner, or make threatening and abusive remarks to anybody. I am confident that what they tell me is true because I had discussed how this matter was to be handled prior to commencing it, and they were under strict instructions to avoid any such activity, but simply to provide the brochure, to explain the AWU’s position and to point out that the person was not going to be hindered or prevented from entering the premises. I have not been able to contact Lineham but from my experience of his conduct at the site I am confident that he would not act in this way. I refer back to paragraph 10 of this affidavit where I made reference to a particular driver trying to run me down. I do recall that when that driver came out I attempted to write down his registration number. It was my intention to get that number and report his conduct to the police. He stopped his car and yelled at me, “if you’re going to take my number plate you fucking cunt you’re wasting your time”. I then told him to “bugger off”. The driver drove away.”
The reference to par 10 of Mr Henderson’s affidavit was a reference to the following evidence:
“I recall the conversation with Schemnitz on the afternoon of Wednesday the 14th. On this occasion he told me that the only thing that he’d seen that was violent was when one particular blue station wagon that came to the site had reversed across the road backwards and then drove at a rapid speed directly towards me. I had spoken to the driver briefly before he reversed when I gave him the brochure. I did not say anything offensive or abusive. There was plenty of room for him to get past me and I had to jump out of his way.”
Section 45D of the Act provides as follows:
“(1)In the circumstances specified in subsection (3) or (4), 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.
(2)A person is taken to engage in conduct for a purpose mentioned in subsection (1) if the person engages in the conduct for purposes that include that purpose.
(3)Subsection (1) applies if the fourth person is a corporation.
(4)Subsection (1) also applies if:
(a)the third person is a corporation and the fourth person is not a corporation; and
(b)the conduct would have or be likely to have the effect of causing substantial loss or damage to the business of the third person.”
Counsel for the company, Mr T Hurley, submitted that there was a serious question to be tried concerning whether the conduct of the respondents amounted to “hindering” or “preventing” the supply of goods by suppliers of the company to the company in breach of s45D of the Act. Mr Hurley referred to the judgment of Sackville J in Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR [41-583]. In Farah at 44,066 the Court found that there was a serious question to be tried in respect of the claim that s45D(1) of the Act had been contravened in circumstances where the activities of a “…picket affected to an appreciable extent the ease of the usual way the supply of goods and services to the applicant at its premises, and, therefore, hindered that supply within the meaning of s45D(1)”.
In Farah there was evidence of “possible future ramifications” for persons who crossed the “picket line”.
The latest relevant Full Court judgment in this Court for present purposes is Australian Builders’ Labourers’ Federated Union of Workers – (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452. In J-Corp the following salient facts were found:
the Union by its secretary had authorised “the establishment of an assembly of its members” outside the relevant site “which was designated and accepted by those involved as a picket line”
there was a sign announcing the existence of a picket
many persons intending to deliver to the site did not persist because they believed there would be “a hassle” in “getting through to deliver their supplies”
a fencing sub-contractor gave evidence that he was fearful of the consequences if he crossed the picket line
some union members considered that if they crossed the picket line they would be “black banned from other union sites”
The trial judge found, as quoted by Lockhart and Gummow JJ at 462, that:
“In my opinion, there can be little doubt in this case that to the drivers of vehicles bringing goods and services to J-Corp at Rivervale the existence of a picket line involved at least a request, and probably a direction, that they should not enter. In the absence of any express disclaimer or advice that the line could be crossed, it was so understood by those participating and those drivers who approached the site. That finding is consistent with my acceptance of Reynolds’ testimony and that of Keogh that instructions were to be given that no-one was to be stopped from crossing the line. I take that to mean that those participating in the picket were to be told that they should not physically stop anyone from crossing nor explicitly direct or request anyone not to cross the line.”[Emphasis supplied.]
Lockhart and Gummow JJ commented at 462 that:
“This passage was much criticised by counsel for the BLF, but, in our view, was well based upon the evidence, save for the words we have emphasised. Those words should not be treated as laying any satisfactory ground for the adverse finding on the issue of the BLF’s “purpose”. Otherwise the passage properly and significantly points to the finding which was made as to the “hindering” of supply.”
The trial judge treated the “establishment and maintenance of the (picket) line” as involving “an implied direction that it should not be crossed and an implied threat of unspecified sanctions in the event that it were crossed.”
The activities described in J-Corp and the evidence of “possible future ramifications” in Farah are to be contrasted with the evidence before the Court in this matter. The activities of Messrs Rae and Henderson, as assisted from time to time by Messrs Partridge and Lineham are not in my view “hindering” or “preventing” in the context of s45D of the Act on the current state of the evidence. Such “hindering” or “preventing” would be shown if, as was found by Lockhart and Gummow JJ in J-Corp at 461-462, persons arriving at the company’s premises “had turned away because, or partly because”, of what they believed would be “a hassle” in entering, “and that it was best not to persevere.”
Both counsel, Mr Hurley and Mr R Hinkley, the latter of whom appeared for the respondents, submitted that the Court should not focus on whether what was happening at the company’s premises was a picket. As Spender J said in J-Corp at 468:
“Given that a “picket” can have many and different meanings, ranging from the military connotation of somebody on guard duty to the lone protester, it is, in my respectful view, wrong to commence with the premise that in an industrial context, a picket line involves a prima facie contravention of s45D, and such a contravention can be avoided if there is a sufficient disclaimer that access is not prevented or hindered.
The freedoms of speech and assembly, including the right to protest, are important democratic freedoms. Also important, I accept, is the entitlement of persons not to be victims of conduct in contravention of s45D of the Trade Practices Act.”
As the evidence currently stands it appears to me that Messrs Henderson and Rae and their two colleagues were engaged in a protest about the dismissal of Mr Partridge. They effected that protest by distributing a brochure outlining their concerns about the dismissal. In stark contrast to J-Corp there is no direct evidence before me from any person who was allegedly hindered or prevented from supplying goods to the company. To the extent that any hearsay evidence exists it has been comprehensively answered by Mr Henderson. I prefer the direct evidence of Mr Henderson over the hearsay evidence given on behalf of the company. However, in many respects it is not necessary to rely on such a preference. Further, in contrast to Farah there is no direct evidence of any “ramifications” which may flow to persons who have supplied the company.
There was no affidavit from the driver of the Mathers Transport vehicle. In contrast there is evidence from Mr Henderson that he, Mr Henderson, encouraged the driver to deliver his load, saying that “a bit of redgum wouldn’t make any difference anyway”. As the evidence now stands any suggestion that this driver was “hindered ” or “prevented ” from supplying the company is without foundation.
I find that Richie Nottag was not hindered or prevented from supplying the company as the evidence currently stands. As Mr Henderson said “I told him that he was not being hindered or prevented from going on the site, it was up to him”. Mr Greenshields did not give any evidence of any conversation with Mr Nottag.
I find that Peter from Better Landscaping Pty Ltd was not hindered or prevented from entering the company’s premises. Peter engaged in a brief conversation with Mr Henderson then drove through the entrance, unimpeded. The lack of hindrance was so obvious that on the following day he engaged in polite conversation with Mr Henderson as he returned to “pick up some sand ”.
I find that Excel Quarries were not prevented from supplying the company by any action taken by any of the respondents. There is no affidavit from Ms Fleming, Mr Lee or anyone from Excel Quarries, including any of the drivers, who were not prepared to deliver to the company. There is no evidence as to why they chose not to do so. I accept the direct evidence of Mr Henderson that he made no threat to Excel Quarries. I also accept that the reference to other sites where Excel delivers was capable of innocent explanation. That explanation being that no protest existed at other sites where Excel deliver.
I find that the driver of the Gillespie Earth Mover vehicle was not hindered or prevented from supplying the company. What he did after he was given the brochure was entirely up to him. Mr Greenshields gave evidence of a telephone conversation with the driver of the vehicle after it departed without delivering its load. He gave no evidence about the driver’s reason for not delivering his load. He merely stated that the driver said he “was a member of the AWU”. Being a member of the AWU is not by itself a conclusive reason for not delivering the goods. In any event the Court does not know what motivated the driver because no affidavit was sworn or affirmed by him.
I find unconvincing Mr Greenshield’s evidence about “pickets” having “confronted ” people at the company’s premises. No specific names or instances have been provided. Such evidence is inconsistent with, what I accept on the current state of the evidence, to be the peaceful conduct of a small protest consisting of a handful of men.
Consequently I find, on the current state of the evidence, that there is no serious issue to be tried regarding the company’s claim that the respondents have breached s45D of the Act. I will, in the orders to be made, reserve leave to the company to apply at relatively short notice should it be able to supply evidence which would disclose that such a serious issue to be tried did in fact exist.
As Mr Hurley submitted it may be appropriate to consider together the question of “serious issue to be tried” and the matter of “balance of convenience” when considering a submission that an interlocutory injunction should be ordered. As Woodward J said in Bullock v Federated Furnishing Trades Society of A/asia (1985) 5 FCR 464, 472:
“The only point I would wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants’ case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.”
In the instant circumstances there is evidence that the company is sustaining losses of up to $5,000 per day. There is no evidence disclosing the current financial position of the company or its ability to withstand such losses. There is evidence from Mr Greenshields that he will be unable to fund losses incurred as a result of obstruction to “ingress and egress” from the company’s premises. As the evidence discloses no such obstruction exists then no such losses will flow. There is also no evidence concerning the financial capacity of other directors of the company.
In any event a Court should be slow to make an interlocutory injunction simply because the balance of convenience favours the applicant. As Woodward J said in Bullock even “a more doubtful claim” than “an apparently strong claim” must nevertheless raise a serious question to be tried before a marked balance of convenience should result in an injunction being ordered.
In this matter, as the evidence stands, the claim made is extremely doubtful. Consequently it is unnecessary to dwell on issues concerning balance of convenience.
The Court makes the following orders:
The applicant’s application for interlocutory relief be dismissed.
The applicant pay the respondents’ costs of the application for interlocutory relief.
On or before 6 November 1998 the applicant file and serve any further amended Statement of Claim.
On or before 30 November 1998 the respondents file and serve their Defences.
On or before 4 December 1998 each party make, file and serve a list of documents relevant to any issue in the proceeding by reference to that issue. Such list to be verified by affidavit.
There be mutual discovery by 18 December 1998.
The directions hearing be adjourned to 11.30 am on 1 February 1999.
Liberty to apply on not less than 48 hours written notice to each other party.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall
Associate:
Dated: 16 October 1998
Counsel for the Applicant: Mr T Hurley Solicitor for the Applicant: McHenry & Company Counsel for the Respondent: Mr R Hinkley Solicitor for the Respondent: Maurice Blackburn & Co Date of Hearing: 15 & 16 October 1998 Date of Judgment: 16 October 1998 (ex-tempore as revised from transcript).
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