Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union
[2000] QSC 150
•26 May 2000
SUPREME COURT OF QUEENSLAND
CITATION: Kestrel Coal Pty Ltd & Anor v Construction Forestry Mining and Energy Union & Ors [1999] QSC 150 PARTIES: KESTREL COAL PTY LTD
ACN 079 044 689
AND
PACIFIC COAL PTY LTD
ACN 010 542 140
(Plaintiffs)
v
CONSTRUCTION, FORESTRY, MINING AND ENGERGY UNION
(First Defendant)
DEL BABUIK
(Second Defendant)
DAVE DATE
(Third Defendant)
SHANE FISHER
(Fourth Defendant)
JIM LAMBLEY
(Fifth Defendant)
REECE SEALEY
(Sixth Defendant)
STUART VACCANEO
(Seventh Defendant)
DAVE WELLER
(Eighth Defendant)FILE NO:
DIVISION:
No. 2338 of 1999
Trial Division
DEVIVERED ON:
DELIVERED AT:
26 May 2000
Brisbane
HEARING DATE:
JUDGE:
11, 12 May 2000
Chesterman J
ORDER: That the defendants, by themselves their servants, officers or agents, be restrained from:
(a) Preventing, hindering or interfering with free access to and free egress from the Kestrel Coal Mine.
(b) Obstructing the movement of any person or vehicle on to or off the said mine along Yan Yan Road (commonly called Lilyvale Road) or any other access way for vehicles or pedestrians.
(c) Abusing, threatening, besetting, harassing, or intimidating any person entering leaving or about to enter or leave or who has entered or left the mine.
(d) Taking a photograph or video of any person who is on or who is entering or leaving or is about to enter or leave or who has entered or left the mine site.
(e) Assaulting (or threatening to assault) any person entering or leaving or about to enter or leave or who has entered or left the mine site or attempting to assault any such person.
(f) Following any person or vehicle approaching or departing from the mine site.
(g) Doing any act which procures or induces any person to breach or has the effect of interfering with any contracts to which the plaintiffs, or either of them, are a party.
(h) Doing any act which interferes with the plaintiffs’ quiet and lawful enjoyment, use or occupation of the mine site.
(i) Causing, inducing, procuring or advising any person to do or attempt to do any of the things restrained by any one of the preceding subparagraphs.That the first defendant by itself, its officers, servants or agents be restrained from authorising or procuring, inducing, encouraging or participating in any of the activities described in the previous order.
That the parties be given liberty to apply with respect to the terms of the injunction.
That the defendants pay the plaintiffs’ cost of the action including any reserved costs to be assessed on the standard basis.CATCHWORDS: EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – PERPETUAL INJUNCTIONS – GENERALLY – application for perpetual injunction to prevent picket line blocking access to mine – whether in all circumstances there is a sufficient risk of future conduct by picketers that would render it just to grant injunction – degree of probability required.
Uniform Civil Procedure Rules r 667(2)(c)
Attorney General v Beck [1980] 2 NSWLR 77
Attorney General v Corporation of Manchester [1893] 2 Ch 87Bruce J Small No. 1 Pty Ltd v Minister for Natural Resources 05/03/1999 SC Qld 8396/98
Copyright Agency Lrd v Haines [1982] 1 NSWLR 182
Dean and Chapter of Chester v Smelting Corporation Limited (1901) 85 LTR 67
Dollar Sweets Pty Ltd v Federated Confectioners Association of Aust & Ors [1986] VR 383
Earl of Ripon v Hobart 40 ER 65
Fletcher v Bealey (1885) 28 ChD 688
Graigola Merthyr Company Limited v Mayor Aldermen and Burgesses of Swansea [1928] 1 Ch 235
Hooper v Rogers [1975] Ch 43
Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd 142 ALR 198COUNSEL: G Martin SC with D Kelly for the plaintiffs
J Griffin QC with A Horneman–Wren for the defendantsSOLICITORS: Freehill Hollingdale & Page for the plaintiffs
Hall Payne for the defendants
CHESTERMAN J: This litigation was conducted so proficiently that only one issue requires adjudication. The point in contention is whether the plaintiffs have proved that they need the protection of an injunction or whether the prospect of damage against which they seek the injunction is too insubstantial to justify making the order sought. The issue raises for consideration the criteria to be satisfied when determining whether an injunction is justified in the absence of actual damage.
The matter must first be put in context.
The first named plaintiff, Kestrel Coal Pty Ltd (“Kestrel Coal”) operates an underground coal mine (“the mine”) located about 65 kilometres west of Emerald in central Queensland. The only practicable vehicular access to the mine is along Yan Yan Road, which is also known locally as Lilyvale Road, to its intersection with Gordon Downs Road, and thence along that road. Kestrel Coal employs all of the mine’s work force except for five senior managers who are employed by the second plaintiff. The first defendant is an industrial trade union. The other defendants are members and office bearers of the first defendant.
The mine was formerly known as the Gordonstone Coal Mine and was operated by Gordonstone Coal Management Pty Ltd. On 1 October 1997 that company dismissed all its employees many of whom were members of the first defendant. Five days later a picket line of dismissed workers and supporters was formed near the intersection of Yan Yan Road and Gordon Downs Road about 2½ kilometres from the mine. On 17 October 1998 companies wholly owned by Rio Tinto Limited agreed to buy the mine. The contract of purchase was completed on 10 February 1999. The plaintiffs are both wholly owned subsidiaries of Rio Tinto Limited. Their intention was to re-commence mining operations utilising a new workforce unconnected with the first defendant.
A particular antipathy exists between the first defendant and Rio Tinto Limited and its subsidiaries. The fact that the mine had been bought by and was to be operated by Rio Tinto Limited was known to the defendants. Their attitude was that the previous work force should be re-engaged by the plaintiffs. Proceedings were commenced in the Industrial Relations Commission to compel that result. Though claiming that the dispute was one between the first defendant and Gordonstone Coal Management Pty Ltd, and that it was not involved, Rio Tinto Limited was caught up and made a party to proceedings. Orders were sought that would have compelled the plaintiffs to employ the dismissed miners. In the meantime the picket and associated protests had continued. When Rio Tinto Limited bought the mine its numbers and activity increased.
Because plant and premises at the mine had lain idle for several months much work had to be done before mining operations could safely be resumed. The plaintiffs planned to have the restoration work completed by about May 1999 and to commence mining and selling coal immediately thereafter. The plaintiffs proposed that their employees should commence work on 11 February 1999.
The plaintiffs were warned by local police that “activities on the picket line would be stepped up” so that it was apprehended that harm might befall persons or property if the plaintiffs’ workers tried to drive to the mine in their own vehicles. To avoid this consequence the plaintiffs made preparations to transport their employees from Emerald to the mine in a bus.
The apprehension was well founded. Between 11 February and about 23 March 1999 the plaintiffs’ employees were regularly impeded as they made their way to and from work. The picketers stood, walked and sat on the carriageway of Yan Yan Road so that the bus was obliged to stop. A large number of police officers was present each day but even so the picketers were so numerous that the police could not clear them from the road. It was only after considerable delay and protracted negotiation that the bus was allowed to proceed. It did so very slowly, police officers walking in front of and beside the bus. During the times the bus was stopped or was moving slowly through the picketers, threats of violence and insults were shouted at the occupants. On occasions members of the crowd made gestures portraying acts of extreme violence. Occasionally explicit threats of death were made. The bus was delayed for periods varying from a few minutes to four hours. The abuse was vulgar and, on occasions, probably obscene. Foul language was repeatedly used. On two occasions, 16 and 23 February 1999 the bus was prevented from returning to Emerald after the day’s work. A large number of picketers blocked the road and refused to move. Their number was too great for the police to remove. The bus returned to the mine where the workers spent an uncomfortable night. One female employee became extremely distressed. Some members of the media who were allowed safe conduct to and from the mine obligingly took her home concealed in their vehicle.
Because of disruptions to access caused by the picket the workers arrived late and were obliged to leave early. The disruptions to the recommissioning program meant that the commencement of production was delayed by about a month. Some workers whose presence was essential were flown to and from the mine by light aircraft or helicopter. The employee who was smuggled through the blockade was unable to resume the bus journeys. She was flown in and home each day.
All of the workers suffered, to a greater or lesser extent, from stress and anxiety by being beset twice daily by a large hostile crowd which threatened violence and subjected them to abuse and threats. The plaintiffs thought it necessary to provide the services of qualified counsellors to assist their workers and their families to cope with the pressures.
It is not necessary to set out in any more detail the activities of the picketers. Mr Hannigan’s description of their conduct was not controverted by the defendants. Nor was there any challenge made to Mr Hannigan’s evidence that each of the second to the eighth defendants were involved in organising or directing the activities of the picketers and the obstruction of Yan Yan Road. In a successful endeavour to shorten proceedings and focus attention on the real question in issue the defendants admitted that:
(a)on various occasions from 11 February 1999 to at least 23 March 1999, all of the defendants:
(i)organised, maintained and participated in a continuous picket at or near the corner of Yan Yan Road, commonly called Lilyvale Road and Gordon Down Road near the mine; and
(ii)obstructed and interfered with the passage of persons including the plaintiffs’ employees and vehicles proceeding to and from the mine;
(b)from time to time during the period 11 February 1999 to 23 March 1999, the plaintiffs’ employees were threatened and intimidated by words, gestures and signs made by participants in the picket when approaching and leaving the mine;
(c)from time to time in the period 11 February to 23 March the plaintiffs’ employees who passed through the picket experienced fear, anxiety and concern for their well being as a result of the conduct of people engaged in the picket.
On 23 March 1999 Moynihan SJA granted an interlocutory injunction, restraining all the defendants from:
“1.(a) preventing, hindering or interfering with free access to, and free egress from the mine or premises by any person or vehicle
(b)standing in line or in any other formation on Gordon Downs Road and/or Lilyvale Road and/or any other roadway, lane, footpath, railway, or any form of access leading to or away from the mine or premises or otherwise obstructing the movement of any person or vehicle onto or off the mine or premises;
(c)abusing, threatening, besetting, harassing, or intimidating any person entering, leaving or about to enter or leave or who has entered or left the mine or premises;
(d)inducing, procuring, advising or persuading any person not to enter or not to leave the mine or premises, or attempting so to induce, procure, advise or persuade;
(e)taking a photograph or video of any person who is on, or who is entering or leaving or is about to enter or leave or has entered or left the mine or premises or attempting to do so;
(f)assaulting (including threatening to assault) any person entering or leaving or about to enter or leave or who has entered or left the mine or premises or attempting so to injure, assault or physically harm;
(g)besetting or following any person or vehicle approaching or on the way to, or in the course or after departure from the mine;
(h)doing any act which procures or induces any person to breach, or has the effect of interfering with, any contracts to which the plaintiffs are a party;
(i)doing any act which interferes with the plaintiffs’ quiet and lawful enjoyment, use or occupation of the mine or premises;
(j)causing, inducing, procuring or advising any person to do or attempt to do any of the things restrained by any one of the subparagraphs (a) to (i) above.”
and restraining the first defendant from:
“authorising, continuing any authorisation of, procuring, inducing, encouraging or participating in any of the activities referred to in 1:
(a) at or in the vicinity of the juncture/crossroad of Lilyvale and Gordon Downs Road, Emerald, approximately 2.24 kilometres from the mine lease boundary at Gordonstone Mine (“the mine”);
(b)anywhere on Gordon Downs Road between the main entrance to Gordonstone Mine and the Lilyvale Road crossroad;
(c)anywhere on Lilyvale Road between Emerald and a point 500 metres beyond the Gordon Downs Road turn off;
(d)within 500 metres of the premises situated at 33 Hospital Road, Emerald in the State of Queensland (“the premises”).”
The injunction was to a large extent efficacious. The defendants mostly complied with its terms. The picketers moved off the road and restricted their activities to verbal protests as the plaintiffs’ work force drove to and from the mine. There was no discernible disruption to the plaintiffs’ operations after 23 March 1999. There were a few occasions when motor cars owned by the first plaintiff were stopped momentarily and the occupants abused and spat at. The defendants’ evidence was that these incidents did not occur in breach of the injunction, which restrained the defendants from organising or directing any activity which would prevent or hinder free access to the mine. The defendants claim that the episodes of interference occurring after 23 March were the actions of individual picketers and were not the consequence of any thing done or said by any of the defendants.
The picket line was abandoned and the temporary structures which had provided offices and shelter to the organisers and picketers were dismantled by about the second week in July 1999. The reason given for the cessation of protest was that on 25 June 1999 the Full Federal Court effectively ruled that the work force dismissed by Gordonstone Coal Management Pty Ltd could not be reinstated. Although an application for special leave to appeal to the High Court was filed the defendants recognised that the decision of the Full Federal Court meant that the retrenched workers could not obtain an order for reinstatement from any tribunal exercising industrial jurisdiction. The effect of the decision was explained to the affected workers at a public meeting in Emerald on 25 June 1999 at which it appears to have been accepted that the continuation of the picket was pointless. There has been no picket since July 1999.
I am satisfied that the conduct described by Mr Hannigan was directed and controlled by the defendants and that it amounted to nuisance and interference with the contractual relations between the plaintiffs and their employees. The gravamen of the conduct lay in blocking Yan Yan Road so that the mine workers could not freely pass along the public highway to work or to return home from work. Between the date when the plaintiffs commenced operations, 11 February, and the grant of the interlocutory injunction on 23 March there were only one or two occasions on which the bus was not delayed. Some interruptions to the bus’s progress were short but others were substantial and, as I have mentioned, on two occasions employees were unable to go home at all. The interruption to their free passage along the highway was accompanied by the activities I have mentioned: abuse, threats of violence and insults many of which were directed at particular employees. There was general harassment and intimidation. I am satisfied that the conduct described amounted to nuisance in respect of which the plaintiffs are entitled to relief, and unlawful interference with the plaintiffs’ contractual relations. I accept as correct the review of authorities by Murphy J in Dollar Sweets Pty Ltd v Federated Confectioners Association of Aust & Ors [1986] VR 383 at 389-390 and his Honour’s conclusions. There is no doubt that the defendants, by directing and controlling the blockade, interfered with the plaintiffs’ contractual relations with their employees who were unable to work their contracted hours. They arrived late and were obliged to leave before the end of their shift. This was done at the request of the police who wished to ensure the safe passage of the workers before dark and because allowance had to be made for delays extra time was allocated for the journey. “The essential elements of the tort of inducing or procuring a breach of contract are the knowing and intentional interference by the defendant with the plaintiff’s contractual rights without lawful justification.” Per Muir J in Bruce J Small No 1 Pty Ltd v Minister for Natural Resources 05/03/1999 SC QLD 8396/98. Those elements are satisfied in the present case.
This aspect of the litigation can be dealt with briefly. The evidence is clear and the defendants did not controvert the plaintiffs’ submissions on the point.
The defendants’ argument is that the need for an injunction vanished with the picketers in July last. The submission is that the impediment to the plaintiffs’ workers’ access to the mine was a by-product of the picket which came in to existence as a tactic in the industrial dispute the object of which was to secure the reinstatement of former employees. That cause, though pursued to the fullest extent through industrial tribunals, has ended in failure. The tactical weapon of the picket was abandoned when the fight was lost in the Federal Court. Without the presence of picketers there will be no occasion for the commission of acts of nuisance or interference with the plaintiffs’ contractual relations. It is pointed out that the picketers came from the ranks of the dismissed work force and that nearly all of these people have now found other work or have moved out of the district. It is said that there is no ready supply of personnel to reform the picket line.
The defendants’ submission is that “there (being) no likelihood of the re-establishment of the picket line, there is no point in having an injunction to prohibit specified action in connection with the picket line. The principles that should be applied . . . are those applicable to the granting of quia timet injunctions. If infringement of a right has already occurred but is not continuing, the plaintiff is only entitled to an injunction if “further infringement is threatened to a material extent””. The reference is to Halsbury’s Laws of England 4th edition vol. 24 para 932.
These arguments are not without substance. As I apprehend things a court should not grant an injunction willynilly but only where there is a demonstrated need for it. An injunction must be of some practical utility. The court should not enjoin conduct that in all probability will not occur.
The plaintiffs do not accept the defendants’ sanguine view of the future. They persist in their application for injunctive relief and point to the past as indicative of what is likely to occur. As well, they emphasise the risk of loss and disruption to their businesses should their workers again be denied free access to the mine. Other matters on which the plaintiffs rely are the conduct of the defendants in controlling and directing the activity which constituted the nuisance. It was deliberate and was intended to disrupt the plaintiffs’ business and to intimidate their work force. As well there is a history of animosity between the plaintiffs’ parent company, Rio Tinto Limited and the first defendant. The relationship was described as akin to “an industrial war”. The first defendant holds “very strong views” about Rio Tinto Limited and has organised numerous pickets against the company in various locations throughout the country at various times in the past. The first defendant’s national secretary in a public statement admitted a connection between the picket line and Rio Tinto Limited’s “industrial behaviour”.
There were two other points to which the plaintiffs attach particular importance. The first is that the defendants refused to provide any undertaking or even some less binding assurance about their future conduct. Of relevance is some correspondence. On 13 July 1999 the defendants’ solicitors wrote to the plaintiffs’ solicitors:
“We are instructed that the picket line . . . has been dismantled. In light of this development would you obtain instructions and advise whether your client proposes to prosecute their claim . . .”
On 25 August the plaintiffs’ solicitors replied:
“We are instructed to advise that our client intends to prosecute this claim unless your clients are prepared to consent to an order, or undertake, in the same terms of the order made by Justice Moynihan. A refusal to do so would indicate in our client’s view that such action as previously undertaken by your clients could be reinstated in the future. Our client also requires payment of its costs . . .”
The defendants’ solicitors did not reply. On 8 November 1999 the plaintiffs’ solicitors wrote again:
“Could you please advise whether your clients will consent to an undertaking in the same terms of the order made by Justice Moynihan. Should your client refuse to do so, our client will continue to prosecute this matter and will seek payment of its costs on an indemnity basis.”
There was no reply to this letter, either.
The evidence given by the only witness called on behalf of the defendants took the matter no further. Mr Vaccaneo said only that since the picket was dismantled there has been no suggestion that it be resumed. By the time he gave evidence the only live issue left in the action was whether there was a sufficient likelihood of a recurrence of the offending conduct to justify the continuation of the interlocutory injunction. The first defendant’s failure to respond to the plaintiffs’ solicitors correspondence had been highlighted. Despite the importance of ascertaining the defendants’ future intentions with respect to the picket line and any further disruption to access, no assurance of any sort was vouchsafed. The plaintiffs invited the court to infer from this reticence that the defendants, unless enjoined, will resume their activities. The defendants, on the other hand, point to the animosity between the parties as an explanation for their refusal to accommodate the plaintiff’s desire to know where it might stand in the future. It is said to be a matter of principle, if not pride, for the defendants not to concede anything to the plaintiffs.
The second factor emphasized by the plaintiffs is that should the unlawful activities recur, there will be a substantial economic impact on the plaintiffs’ business. The mine is now in full production. It operates twenty four hours a day for five days of the week. Its employees work shifts of varying duration: some eight hours, some ten and some twelve. Machinery is kept in continuous use by means of deft and precisely timed handovers by one operator to another. Even slight delays to the arrival of workers on the replacement shift will severely disrupt the operation of the machinery and consequently production.
In the 3rd edition of Equity Doctrines & Remedies para 2107 it is said that in order to obtain an injunction a plaintiff has to prove that he possessed some legal right which “was either threatened or . . . had already been infringed and that the infringement was likely to be continued or repeated”. The authors say of this element that it “needs no comment”. It has, however, been the subject of discussion by Dr Spry in the 5th edition of Equitable Remedies. At page 394 the author says the plaintiff
“ . . . must satisfy the court that there is a sufficient risk that these acts will take place to render it just, in all the circumstances, that an injunction should be granted . . . but the more fundamental enquiry relates to the extent of hardship that would be caused by leaving the plaintiff to resort to damages or to renew his application subsequently if the threat of injury . . . should become greater, and this consideration in turn depends not merely on the precise probability that the act to be enjoined will take place, but also on the gravity of those acts and on the degree of damage or inconvenience that they would cause if they took place. Further . . . account must be taken of . . . the degree of any hardship that might be caused the defendant if an injunction were granted …”
The authority principally relied upon is the judgment of Lord Brougham in Earl of Ripon v. Hobart 40 ER 65 at 68. The case concerned a drainage authority which proposed to pump a large volume of water in to a river the conservators of which feared that its banks would be unable to hold the increased flow. The judge said:
“For, in matters of this description, the law cannot make over nice distinctions, and refuse the relief merely because there is a bare possibility that the evil may be avoided. Proceeding upon practical views of human affairs, the law will guard against risks which are so imminent that no prudent person would incur them, although they do not amount to absolute certainty of damage. Nay, it will go further, according to the same practical and rational view, and, balancing the magnitude of the evil against the chances of its occurrence, it will even provide against a somewhat less imminent probability in cases where the mischief, should it be done, would be vast and overwhelming.”
The cases which followed did not adopt this flexible approach, which spoke of balancing the magnitude of harm against the likelihood of its occurrence, but instead emphasized the literalness of some of the language used by Lord Brougham. In Fletcher v. Bealey (1885) 28 ChD 688 Pearson J said at 698:
“. . . there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial.”
Chitty J in Attorney General v. Corporation of Manchester [1893] 2 Ch 87 at 92 thought:
“The principle which . . . may be properly and safely extracted from the quia timet authorities is, that the plaintiff must show a strong case of probability that the apprehended mischief will, in fact, arise.”
The point was more incisively dealt with in Graigola Merthyr Company Limited v. Mayor Aldermen and Burgesses of Swansea [1928] 1 Ch 235 at 241-2:
“A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the court – it will act at once, and protect the rights of the party who is in fear, and thus supply the need of what has been termed protective justice. It is a very old principle. . . . in the smallpox hospital case . . . Chitty J said that where it is certain that injury will arise, the court will at once interfere by injunction; and called attention to the words of Lord Eldon . . .: “extreme probability of irreparable injury” and of Lord Brougham . . . from these authorities it appears that the action of the court in a quia timet action is one rather of procedure when it has become seized of facts which require its intervention. It takes the facts as they must appear to practical men; but it does require facts, and not mere suggestion.”
The true import of what was said in Ripon v. Hobart was recognised by Russell LJ in Hooper v. Rogers [1975] Ch 43 at 50:
“Again it seems to me that “imminent” is used in the sense that the circumstances must be such that the remedy sought is not premature; . . . in different cases differing phrases have been used in describing circumstances in which mandatory injunctions and quita timet injunctions will be granted. In truth it seems to me that the degree of probability of future injury is not an absolute standard: What is to be aimed at is justice between the parties, having regard to all the relevant circumstances.”
[26] The flexible approach was endorsed by McLelland J in Copyright Agency Ltd v. Haines [1982] 1 NSWLR 182 at 192. The case concerned the apprehended infringement of copyright. Having found that there was “a significant prospect that (the) rights of the . . . plaintiffs may be infringed,” his Honour went on
“There is no universally applicable criterion as to the degree of probability of apprehended injury to the rights of a plaintiff, or as to the degree of seriousness of such injury, which it is necessary to establish to found quia timet relief. Specific statements as to these matters which are to be found in some of the cases must in my opinion be treated as giving guidance only in analogous cases. The court’s general discretionary power under the (Supreme Court Act) to grant quia timet relief should not be regarded as being fettered by rigid or special rules unrelated to the requirements of justice in the particular case. In my opinion the position is correctly stated in . . . a judgment of Russell LJ . . . in Hooper v. Rogers . . .”
The same view was taken by a Full Federal Court (Lockhart, Cooper and Kiefel JJ) in Magic Menu Systems Pty Ltd v. AFA Facilitation Pty Ltd 142 ALR 198 at 207-8 where it was said:
“It was submitted . . . that the cases do not disclose any fixed or absolute standard of proof which is to be required before injunctions quia timet, to prevent apprehended damage, might issue. That submission may be accepted: Hooper v. Rogers . . . It would follow that much will depend upon the circumstances of the particular case.”
Their Honours, nevertheless , pointed out that an injunction will not be appropriate where, as in that case, damage was not “shown to be likely at all”.
Despite the insistence in some of the cases that there be a strong probability of damage I regard the authorities as establishing the principle articulated by Dr Spry. Whether the court should enjoin apprehended future conduct depends upon whether the plaintiff shows a sufficient need for the protection of an injunction. The degree of likelihood that the conduct will occur is obviously very relevant but no fixed degree of persuasion that the conduct will occur is necessary. The decision whether or not to restrain the commission of future acts will depend upon an amalgam of factors which have to be considered and weighed. These include as well as the likelihood of the conduct occurring, the damage the plaintiff will suffer if it does occur and the hardship or inconvenience the defendant will suffer if the injunction is granted. A lesser likelihood of the conduct’s occurrence will justify the grant of an injunction where the plaintiff will suffer great loss if the conduct does occur and the defendant will not be put out by the injunction.
There is not, in this case, a high probability that the defendants will reinstate their blockade of the highway and consequent harassment of the plaintiff’s employees. The factors relied upon by the defendants do militate against the reconvening of the picketers. There is, however, a risk that protestors will be recalled. It would not be necessary to assemble a large crowd to prevent access to the mine. The complaint which is the subject of exhibit 23 shows that a handful of men occupying the carriageway could effectively prevent the passage of vehicles. During the existence of the picket the first defendant paid a number of protestors the sum of $500 per week each to remain on the site. In addition food and drink was provided for their sustenance. On occasions members of the first defendant from other work sites were encouraged to travel to central Queensland and take part in the picket. The first defendant could with its resources of money and personnel obtain enough people without difficulty or delay to disrupt the plaintiff’s workers’ access to the mine. Its feeling of antipathy towards Rio Tinto Limited provides a sufficient motive for doing so.
In this context it is relevant that the defendants maintained their unlawful obstruction for several weeks and only permitted free access after the interlocutory injunction was ordered. This is not a case of idle threats. The defendants have in the past acted unlawfully in violation of the plaintiffs’ rights. This factor makes the case different from those in which an injunction is sought because of conduct which is only apprehended. The principles applicable to quia timet injunctions are not entirely applicable. The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief. See Dean and Chapter of Chester v. Smelting Corporation Limited (1901) 85 LTR 67 at 69 and Attorney General v. Beck [1980] 2 NSWLR 77 at 94-95.
It is significant that the defendants have not offered an undertaking in any terms to desist from any of the conduct complained of in the past, nor given the court any assurance, falling short of an undertaking, that it would not again bar the plaintiffs’ access to their mine. The defendants know best what the likelihood of future obstruction is, but instead of revealing it they invite the court to conclude that there is no need for an injunction. They ask the court to infer what they could have proved directly, but chose not to. This circumstance leads me to think there is an appreciable risk that the defendants will again attempt to impose a human barrier across the road.
In the event that the offending conduct did recur the plaintiffs would suffer substantial disruption to their businesses. As well as lost production, which may or may not be compensable in damages, severe distress would be occasioned to individual employees subjected to further bouts of bullying. The plaintiffs seek to protect not just their economic interests but the basic individual rights of their employees to travel freely along a public highway and to go to work without fear.
There is no countervailing factor. The injunction will not cause any inconvenience or hardship to the defendants. They will not be prevented from engaging in any lawful protest or from expressing their disapproval of the manner in which the plaintiffs conduct business. The injunction will only prevent the defendants from doing what they have no right to do, closing a public road, and impeding the ordinary passage of workers intent on earning a livelihood.
Also relevant to the exercise of the discretion is the point that an injunction though permanent in form may be set aside at any time. See UCPR 667(2)(c). The injunction will not necessarily operate as a perpetual restraint against the defendants. Should future circumstances indicate that an injunction is no longer appropriate they may apply to have it set aside. The risk that the injunction may cause some particular hardship is thereby diminished.
Accordingly I order that the defendants, by themselves their servants, officers or agents, be restrained from:
(a)Preventing, hindering or interfering with free access to and free egress from the Kestrel Coal Mine.
(b)Obstructing the movement of any person or vehicle on to or off the said mine along Yan Yan Road (commonly called Lilyvale Road) or any other access way for vehicles or pedestrians.
(c)Abusing, threatening, besetting, harassing, or intimidating any person entering leaving or about to enter or leave or who has entered or left the mine.
(d)Taking a photograph or video of any person who is on or who is entering or leaving or is about to enter or leave or who has entered or left the mine site.
(e)Assaulting (or threatening to assault) any person entering or leaving or about to enter or leave or who has entered or left the mine site or attempting to assault any such person.
(f)Following any person or vehicle approaching or departing from the mine site.
(g)Doing any act which procures or induces any person to breach or has the effect of interfering with any contracts to which the plaintiffs, or either of them, are a party
(h)Doing any act which interferes with the plaintiffs’ quiet and lawful enjoyment, use or occupation of the mine site.
(i)Causing, inducing, procuring or advising any person to do or attempt to do any of the things restrained by any one of the preceding subparagraphs.
I further order that the first defendant by itself, its officers, servants or agents be restrained from authorising or procuring, inducing, encouraging or participating in any of the activities described in the previous order.
I give the parties liberty to apply with respect to the terms of the injunction. The defendants must pay the plaintiffs’ cost of the action including any reserved costs to be assessed on the standard basis.
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