Laverton Cold Storage Pty Ltd v National Union of Workers
[2018] VSC 503
•3 July 2018 (Ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2018 02470
| LAVERTON COLD STORAGE PTY LTD (ABN 86 165 524 078) | Plaintiff |
| v | |
| NATIONAL UNION OF WORKERS & ORS | Defendants |
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JUDGE: | RIORDAN J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 July 2018 |
DATE OF RULING: | 3 July 2018 (Ex tempore) |
CASE MAY BE CITED AS: | Laverton Cold Storage Pty Ltd v National Union of Workers |
MEDIUM NEUTRAL CITATION: | [2018] VSC 503 |
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INJUNCTIONS – Application for injunction to restrain certain picketing activities – Whether there was a continuing threat of disruption of access – Whether the defendant and representees should be enjoined from being within a specified distance from entrances – Form of order considered.
PRACTICE AND PROCEDURE – Representative Order – Whether the defendant was suitable to be appointed as a representative – Whether the representees had a common interest as individuals engaging in picketing activities – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 18.03, 18.04.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J R M Tracey | Rigby Cooke |
| For the First to Sixth Defendants | J Fetter | National Union of Workers |
| For the Seventh Defendant | No appearance by the Seventh Defendant J Fetter appeared as amicus curiae for the Seventh Defendant |
HIS HONOUR:
By writ filed 28 June 2018, Laverton Cold Storage Pty Ltd (‘the plaintiff’) claims injunctions, damages and other relief from the National Union of Workers (‘the Union’) and five other officers and agents of the Union (‘together the defendants’), on the basis of what it alleges to be picketing by the defendants of its cold storage site at 125 Foundation Road, Truganina (‘the Site’); and, in particular, the obstruction of trucks and other vehicles from accessing the Site.
The causes of action pleaded in the generally endorsed writ, filed 28 June 2018,[1] are private nuisance, inducing breach of contract, and intentional interference with business relations.
[1]Amended with my leave on 3 July 2018, and filed in Court on that day.
By summons filed 2 July 2018, the plaintiff claims:
(a) an order that the seventh defendant, an alleged picketer, be added as a defendant and be appointed as a representative of additional alleged picketers under r 18.03 of the Supreme Court (General Civil Procedure) Rules 2015; and
(b) an interlocutory injunction restraining the seventh defendant and the representees from obstructing access to the Site.
I have already given leave, today, for the seventh defendant to be added as a defendant under r 9.06 of the Supreme Court (General Civil Procedure) Rules 2015, and for the plaintiff to amend the general endorsement on the writ to reflect that addition.
I have also decided to order that the seventh defendant be appointed as a representative of the additional alleged picketers, and that the seventh defendant and the representees be restrained from obstructing access to the Site. I give my reasons for that ruling below, and the form of my orders is in paragraph [42].
Background
In support of its application, the plaintiff relies on the following evidence:
(a) the affidavits of Matthew Rowe, general manager of the plaintiff, affirmed 27 June and 2 July 2018;
(b) the affidavits of Graham Smith, security contractor at the Site, sworn 27 June and 2 July 2018;
(c) the affidavit of Graham O'Brien, a customer of the plaintiff, sworn 2 July 2018; and
(d) the oral evidence of Graham Smith, given today.
The plaintiff is in the business of cold storage warehousing and employs approximately 60 persons on a full-time, part-time or casual basis. A number of persons on the plaintiff’s staff are members of the Union.
In 2017 and 2018, Union officials provided entry notices to the plaintiff, pursuant to which they have exercised rights of entry onto the Site. Since approximately 27 November 2017, there has been bargaining between the Union and the plaintiff, after the Union obtained a majority support determination from the Fair Work Commission.
On 18 June 2018, in accordance with a ballot order made by the Fair Work Commission, a ballot was held for the approval of protected industrial action; and a majority of eligible voters approved various forms of industrial action occurring at or near the Site, including an unlimited number of 24-hour work stoppages.
On 19 June 2018, the plaintiff received from the Union a notice of intention to take employee claim action in the form of a 24-hour stoppage to commence at 2:00 pm on Monday, 25 June 2018.
On 22 June 2018, Union officials Ms Claire Lewis and Ms Janice Wells attended at the Site, exercising their right of entry, and spoke to the plaintiff’s staff about recruiting more members to participate in industrial action. Lewis and Wells also indicated to the plaintiff’s staff that there was a fund available to the Union from which lost wages could be paid to those participating in the proposed industrial action.
Between Monday 25 June 2018 and Friday 29 June 2018, there is considerable evidence of employees of the plaintiff, persons associated with the Union and others being involved in a picket at the access points to the Site. It is common ground that picketing activity is not of itself illegal or tortious;[2] but in this case the evidence establishes that there has been obstruction and, in fact, prevention of vehicular access to the Site. This has involved, in particular, the prevention of trucks entering and leaving the Site during that period.
[2]See, eg, Barloworld Coatings (Aust) Pty Ltd v Australian Liquor Hospitality & Miscellaneous Worker’s Union [2001] NSWSC 826 [13]–[16] (Bryson J).
On 28 June 2018, the plaintiff filed a writ and summons seeking interlocutory injunctions against the first and sixth defendants.
On 29 June 2018, undertakings were given to Richards J, in this Court, by the Union and the second and third defendants that they would not obstruct free access to the Site, and that they would not cause or otherwise incite others to do so or attempt to do so.
On 2 July 2018, the plaintiff filed the summons presently before me, in which it seeks the orders that I have previously identified. The affidavit material of Rowe and Smith, relied upon by the plaintiff, establishes that, from 4.30 pm on Friday 29 June 2018 until 11.20 am on Saturday 30 June 2018, there were persons who continued to obstruct vehicular access to the Site; and those persons included the seventh defendant.
The evidence today from Smith is that there continues to be virtually no vehicles entering or leaving the Site.
Decision
The representative order
The plaintiff seeks an order that the seventh defendant be appointed, pursuant to r 18.03 of the Supreme Court (General Civil Procedure) Rules 2015, as a representative for those persons who have participated in the obstructionist picketing activities up to 2 July 2018. The rule provides that:
At any stage of a proceeding under rule 18.02 against one or more persons having the same interest, the Court may appoint any one or more of the defendants or the persons as representing whom the defendants are sued to represent some or all of the persons in the proceeding.
As the High Court said in Carnie v Esanda Finance Corporation Limited,[3] the purpose of the rule is to facilitate the administration of justice by enabling a party to obtain a binding determination on behalf of or against a number of people in a single action rather than have to undertake separate action.[4] It is well-established that the only jurisdictional requirements of a representative order are that there are numerous persons and that they have the same interest in the proceeding. As was said by Bongiorno JA in Super A-Mart Pty Ltd v NUW, ‘it is a simple rule capable of meeting many situations’.[5]
[3](1995) 182 CLR 398.
[4]Ibid, 404 (Mason CJ, Deane and Dawson JJ).
[5][2014] VSC 130 [16], citing Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398, 404 (Mason CJ, Deane and Dawson JJ).
However, although the suitability of the defendant is not a jurisdictional requirement, Mr Fetter, who acts for the first to sixth defendants and appeared today as amicus curiae for the seventh defendant, submitted that it is a discretionary consideration;[6] and the seventh defendant was not a suitable representative for the following reasons:
[6]See, eg, McDonald's Australia Ltd v Watson [2013] VSC 502 [44]–[46] (Kyrou J).
(a) He is not an organiser or a ringleader, and lacks management or control over the proposed representees. The VICT case[7] is distinguishable, in particular, because in that case Mr Hilakari, who was appointed representative, was the secretary of the Trades Hall. Further, there is no evidence that the seventh defendant has substantial financial resources.
[7]VICT v MUA & CFMEU; VICT v Hilakari [2017] VSC 762 (McDonald J).
(b) The seventh defendant’s employment was unlikely to mean that he was in a position where he could dedicate the time required to represent the representees properly.
(c) A requirement which would be imposed by a representation order would extend to representing a largish group; and there is no evidence of education or other general capacity for the seventh defendant to be able to represent the representees.
(d) Because of the obligation on an employee to disclose information to his employer obtained within the scope of his employment, there was a real risk of a conflict in that he, as an employee, would be required:
(i) on one hand, to obtain in his representative capacity information from the representees; and
(ii) on the other hand, he would then be required to pass on that information to his employer pursuant to his obligations as employee.
In my opinion, the position of the defendant does not make him an unsuitable person at this point in time to be appointed as a representative, for the following reasons:
(a) It is likely that the Union will continue to support the seventh defendant. I draw this inference, at this point in time, on the basis that the seventh defendant has participated, as have the representees, as a result of encouragement by the Union and their conduct has been in the interests of the Union.
(b) Although, as Mr Fetter pointed out, the meeting on 22 June 2018 only concerned the use of the strike fund for the purpose of reimbursing wages, in my opinion there must be a real prospect that the Union would be prepared to access that fund or other funds for the purpose of supporting persons who were prepared to be involved in industrial action in circumstances such as these.
(c) As the Union is already involved in this proceeding, it would not require a further substantial investment by the Union to instruct its lawyers to act for the seventh defendant, who would be represented along with the first to sixth defendants. In my opinion the Union has, by appearing today and making submissions as amicus curiae, indicated a preparedness to look after the interests of the seventh defendant.
(d) The authorities do not support the proposition that an ordinary member or participant may not be an appropriate representative.[8]
(e) The conflict between the obligations of the seventh defendant as an employee and that as a representative is doubtful at best; and I am not satisfied that the seventh defendant, in acting as a representative in an action brought by the plaintiff by reason of the seventh defendant’s conduct in obstructing the business of the plaintiff, could be said to be acting within the scope of his employment.
(f) The Court may reconsider this order if, at a later time, it is found that the seventh defendant is bona fide unable to look after the interests of the representees, and it may be appropriate at that time to appoint some other person to do so.
[8]Commonwealth v Doyle (Unreported, Supreme Court of Victoria, Brooking J, 4 October 1983); McDonald’s Australia Limited v Watson [2013] VSC 502 (Kyrou J).
Mr Fetter, for the Union, also submitted that the element of a common interest between the represented parties was not present.
In particular, he submitted that the actions for inducing a breach of contract and intentional interference require proof of intention which would require individual attention to be given to the motivations and intentions of each of the representees.
He referred to the decision of Finkelstein J in Geelong Wool Combing Limited v Textile, Clothing and Footwear Union of Australia,[9] where his Honour explained:
To succeed in the action the applicant must establish that each respondent has engaged in unlawful (and therefore coercive) conduct with the intention of forcing the applicant to agree to a certified agreement in the form which the respondents seek … This will involve an examination of the individual conduct of each respondent, as well as an enquiry as to the reason for that conduct. Then, if the applicant shows that a contravention has occurred, there is the question of relief. The amount of penalty to be imposed on each unsuccessful respondent will require separate consideration.[10]
[9](2003) 130 FCR 447, 452 [12].
[10]Ibid.
I reject Mr Fetter’s submission, in respect of the representees’ common interest, for the following reasons:
(a) The plaintiff in this case has a strong case in nuisance, which does not require proof of the representees’ individual intentions.[11]
(b) Identity of defences is not an absolute requirement;[12] and its importance is diminished where, as in this case, the plaintiff does not seek damages.[13]
(c) The Court is in a position to reconsider the order if, in the interests of justice, it was to later consider that the plaintiff should not press a claim for the intentional torts against the representees and should limit itself to the claim in nuisance.
[11]Nuisance was one of the causes of action which underpinned the representative order made by Kyrou J in McDonald's Australia v Watson [2013] VSC 502 [76].
[12]McDonald's Australia v Watson [2013] VSC 502 [75].
[13]Viva Energy Refining Proprietary Limited v Australian Workers' Union [2016] VSC 619 [12] (McDonald J).
It is well established that appointing a defendant without his or her consent as a representative of a number of other persons under r 18.03 of the Supreme Court (General Civil Procedure) Rules 2015 is a serious step. I consider the circumstances of this case do justify such an order, principally because despite the undertakings given by the Union and the second to sixth defendants on 29 June 2018, I am satisfied that the unlawful obstruction of access to and from the Site will continue unless the Court is prepared to make further orders, including a representative order.
As was submitted by Mr Tracey, for the plaintiff, I have also had regard to r 18.04(2) of the Supreme Court (General Civil Procedure) Rules 2015, which provides that in the case of a representative order, the judgment order or orders shall not be enforced against a person not a party of the proceeding except by leave of the Court.
I will grant liberty to apply for an extension to the scope of the representative order if, after 2 July 2018, persons other than the representees participate in the obstructionist activities at the Site. [14]
[14]Viva Engineering Refining Proprietary Limited v Australian Workers' Union [2016] VSC 619 [16]; McDonald's Australia v Watson [2013] VSC 52 [92].
Injunction against seventh defendant and representees
It is well established that an activity that might be described as picketing is not of itself unlawful. The issue of legality cannot be dealt with as a matter of generality. A pertinent distinction between lawful and unlawful conduct, within the general description of picketing, was explained by Bryson J in Barloworld Coatings (Aust) Pty Ltd v Australian Liquor Hospitality & Miscellaneous Worker’s Union as follows:
A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others including people going to and leaving the workplace the fact that there is an industrial dispute, what their dispute is about, what they claim are the merits of the dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction could take many forms, such as standing in their way, or moving about in some way which interfered with passage.[15]
[15]Ibid [16].
The evidence establishes that the seventh defendant and other persons (‘the representees’) have, between 25 June 2018 and 2 July 2018 (inclusive), deliberately obstructed vehicles attempting to enter the Site; and I am satisfied that there is a strong prima facie case against the seventh defendant and the representees for an injunction restraining them from obstructing access to the Site on any of the three causes of action pleaded (those being the torts of private nuisance, inducing breach of contract, and intentional interference with business relations).
Mr Fetter submitted that the balance of convenience favoured the seventh defendant and opposed the imposition of an injunction because there was no evidence of a continuing threat of disruption of access to the Site. In particular, since the morning of Saturday 30 June 2018, there is no evidence of vehicles being disrupted or obstructed from entering the Site.
In my opinion, however, the evidence establishes that the obstruction continued after the injunction made by Richards J on 29 June 2018. The evidence from Mr Smith, today, established that the picketers are still in place at each access point and that there are virtually no vehicles entering the Site. There is no evidence from the seventh defendant, or any of the defendants, that the conduct described up until Saturday 30 June 2018 has finished, or that there is no longer any attempt to obstruct vehicles entering.
I infer that the current lack of any vehicles entering the Site is the result of the continuing threat of prevention, such that vehicles are not attempting to enter because of the inutility of such an attempt. Of course, it was readily available to any of the defendants to give evidence to the contrary, if that was not the case.
I accept the submissions of Mr Tracey, who appears on behalf of the plaintiff, that the plaintiff's losses as a result of the obstructionist picketing at the Site are approximately $250,000 a week. There is no evidence that, in the circumstances, the injunction sought will cause any loss to the seventh defendant. Further, I accept that the plaintiff will suffer reputational loss should the obstruction to its Site continue; and I do not consider that damages would be an adequate remedy for such loss, or that there is any other adequate remedy. As was observed by Mr Fetter for the Union, it is unlikely that the seventh defendant, in his position as an employee, would have the capacity to be able to pay damages; and, in fact, damages have not been sought from the seventh defendant.
Further, as Mr Tracey for the plaintiff contended, there is no alternative remedy through the Fair Work Commission, because picketing cases are not industrial action as defined in the Fair Work Act 2009 (Cth).
In these circumstances, I am prepared to grant an injunction against the seventh defendant and the representees.
Form of order
In respect of the injunction against the seventh defendant and the representees, Mr Tracey, for the plaintiff, sought orders in the following form:
[U]ntil trial or further order, the seventh defendant and the representees are each restrained from:
(a)preventing, hindering or interfering with free access to, and free egress from the Site by any person or vehicle using any point of entry to or exit from the site;
(b)causing, inducing, procuring or inciting any person to do or attempting to do any of the things restrained by sub-paragraph (a);
(c)being within 100 metres of any access point of the plaintiff’s site located at 125 Foundation Road, Truganina in the State of Victoria, save for the purpose of walking or driving on to the site for the purpose of performing work as an employee of the plaintiff, or otherwise with the plaintiff’s express consent.
Mr Tracey submitted that this form is similar to orders made in Dollar Sweets v FCA,[16] AMEC Engineering Pty Ltd v CEPU,[17] Tycan Australia Pty Ltd v AMWU,[18] and VICT v MUA & CFMEU; VICT v Hilakari.[19]
[16][1986] VR 383 (Murphy J).
[17][2003] FCA 28 (Sundberg J).
[18][2002] VSC 168 (Ashley J).
[19][2017] VSC 762 (McDonald J).
Mr Fetter, for the Union, submitted that the words ‘hindering or interfering with’, as they appear in the proposed sub-order (a), are imprecise and broader than necessary to prevent obstruction of the entry points of the Site. He also submitted that any order restricting the seventh defendant and the representees from being within a certain distance of the Site (as the proposed sub-order (c) does) would unduly restrict those persons’ right to engage in lawful industrial action at the Site, including engaging in lawful protests and picketing by the front gate.
In respect of these submissions, my third order (see paragraph [42] below) is designed to meet the conflicting requirements of permitting the seventh defendant and the representees to engage in lawful activity near the Site, and the need to make it plain that standing on the roadway, in such a way that is a nuisance to the plaintiff, is not permitted.
I have attempted to formulate this order so as to clarify, with as much precision as possible, what the defendant and the representees can and cannot do in the course of industrial action at the Site.
I have refused to make an order restraining the seventh defendant or the representees from being within any particular distance of the access points to the Site. This is so they can remain near the laneways for the purpose of engaging in lawful industrial activity, but cannot obstruct access to the Site and, out of an abundance of caution, cannot, except within the stated exceptions under sub-order (b), stand on any roadway or laneway which gives access to the Site.
Orders
I make the following orders:
1.J Bloggs (a pseudonym) is added as a party to the proceeding, as the seventh defendant, pursuant to rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).
2.The seventh defendant is appointed pursuant to rule 18.03(1) of the Rules as representing all those persons (except for the first to sixth defendants) who have, at any time between 25 June 2018 and 2 July 2018 (inclusive), obstructed or interfered with the passage of vehicles proceeding to and from the site (‘the Site’) located at 125 Foundation Road, Truganina, in the State of Victoria (together, ‘the representees’).
3.Until trial or further order, the seventh defendant and the representees are restrained:
(a)from obstructing or interfering with free access to, and free egress from, the Site by any person or vehicle;
(b)from standing on any roadway or lane leading to or away from the Site, except for:
(i)the purpose of crossing the roadway or lane without undue delay; or
(ii)the purpose of walking or driving on to the Site to perform work as an employee of the plaintiff; or
(iii) otherwise with the plaintiff’s express consent; and
(c)from causing, inducing, procuring or inciting any person to do, or attempting to do, any of the things restrained by sub-paragraphs 3(a)-(b) of this Order.
4.As soon as practicable, the plaintiff serve personally on the seventh defendant copies of:
(a)the authenticated Order of the Honourable Justice Richards made 29 June 2018 in this proceeding;
(b) this authenticated Order; and
(c) the amended writ filed in this proceeding on 3 July 2018.
5.In lieu of personal service on the representees, the plaintiff may serve this Order by affixing an authenticated copy of this Order in a prominent place near each point of access to and exit from the Site.
6.Notwithstanding paragraph 5 of this Order, as soon as reasonably practicable the plaintiff effect personal service of an authenticated copy of this Order on any representees which it is able to identify.
7. Costs are reserved.
8. There is liberty to apply.
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