Mechanical Engineering Corporation Pty Ltd v Scholtes
[2007] FCA 520
•13 April 2007
FEDERAL COURT OF AUSTRALIA
Mechanical Engineering Corporation Pty Ltd v Scholtes [2007] FCA 520
MECHANICAL ENGINEERING CORPORATION PTY LTD v JOHN SCHOLTES, ALAN DINGWELL, JOSEPH MICALLEF, SYDNEY GRIMA, DAVID ALDERSON, STEPHEN ATTRILL AND PATRICK BROWN
VID272 OF 2007JESSUP J
13 APRIL 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID272 OF 2007
BETWEEN:
MECHANICAL ENGINEERING CORPORATION PTY LTD
ApplicantAND:
JOHN SCHOLTES
First RespondentALAN DINGWELL
Second RespondentJOSEPH MICALLEF
Third RespondentSYDNEY GRIMA
Fourth RespondentDAVID ALDERSON
Fifth RespondentSTEPHEN ATTRILL
Sixth RespondentPATRICK BROWN
Seventh Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
13 APRIL 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for interlocutory relief be dismissed.
2.The applicant pay the costs of the 1st, 3rd, 4th, 5th and 6th respondents of the application for interlocutory relief.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID272 OF 2007
BETWEEN:
MECHANICAL ENGINEERING CORPORATION PTY LTD
ApplicantAND:
JOHN SCHOLTES
First RespondentALAN DINGWELL
Second RespondentJOSEPH MICALLEF
Third RespondentSYDNEY GRIMA
Fourth RespondentDAVID ALDERSON
Fifth RespondentSTEPHEN ATTRILL
Sixth RespondentPATRICK BROWN
Seventh Respondent
JUDGE:
JESSUP J
DATE:
13 APRIL 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By application filed on 4 April 2007, the applicant, Mechanical Engineering Corporation Pty Ltd (Administrators Appointed) (ACN 111 479 684), seeks declarations, damages and injunctions against the respondents in relation to conduct in which the respondents are alleged to have engaged and be engaging, in the vicinity of the main gate to the applicant’s workshop site at Yallourn Drive, Yallourn. On 11 April 2007, the applicant moved for interlocutory orders to restrain the respondents from engaging in that conduct pending the hearing and determination of the proceeding.
There are seven respondents, but only the first, third, fourth, fifth and sixth have been served. The applicant pressed for interlocutory relief only in relation to those respondents. Hereafter in these reasons, it is those respondents to whom I refer as “the respondents”.
In the reasons which follow below, I shall refer to the evidence which has been put before me on affidavit. I make a number of findings, but, to the extent that they relate to the applicant’s case on the merits (ie as distinct from considerations going to the balance of convenience), those findings are provisional only, and must be understood in the sense that the first question for the court is whether the applicant has a seriously arguable case.
The applicant carries on the business of mechanical engineering, including heavy and light machining of components, metal fabrication and the general manufacture and repair of all types of metal components. It does so from its site in Yallourn Drive. Until the events which led to this proceeding, the applicant obtained its metal trades labour by way of labour hire from Mechanical Engineering Services Pty Ltd (ACN 036 760 190) (‘MES’). Trades employees of MES were covered by the Skilled Engineering Limited Mechanical Workshop Certified Agreement 2003–2006, certified pursuant to the Workplace Relations Act 1996 (Cth). On 10 July 2006, that agreement was terminated by order of the Australian Industrial Relations Commission. Negotiations between MES and the trade union representing its trades employees, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (‘the AMWU’) followed. In support of its claims in those negotiations, the AMWU and its members took protected industrial action and, on 13 September 2006, MES implemented an indefinite lock-out of its trades employees. Since then, those employees have performed no work at the applicant’s site. Administrative staff, supervisors and apprentices, however, were not affected by the dispute, were not locked out and have continued working at the applicant’s site, in the employ of MES, to the present time.
After the commencement of the lock-out, groups of persons have maintained a more or less continuous presence outside, and in the immediate vicinity of, the main gate to the applicant’s site in Yallourn Drive. The gate is situated on a road that leads off the main road that services the Yallourn W power station. Although the road upon which the gate is situated is used by others occasionally, the evidence is that it is used almost exclusively for the purpose of access to the applicant’s site. The respondents describe their presence at the gate as a “community protest”, while the applicant describes it as a picket line, or as a “picket/protest line”. If there is any significance in the difference between these descriptions, it is not one which I am required to address for present purposes. As a matter of convenience only, I shall refer to the phenomenon constituted by the presence of persons in a group near the gate to the applicant’s site as a “picket line”, but I do not thereby imply that those persons acted in any particular way towards the applicant or towards persons having recourse to the applicant’s site. The evidence, such as it is, suggests that the respondents participated in this gathering from time to time.
The strike and the lock-out at MES appear to have had the effect of substantially curtailing the applicant’s ability to trade in the normal way. In the period between July 2005 and August 2006, the applicant’s monthly sales averaged $1,198,232.00. In the period from August 2006 to March 2007, the monthly average sales figure was $309,998.00. On 27 December 2006, Glenn Anthony Crisp was appointed administrator of the applicant. It was the applicant’s case, and I am prepared to accept for present purposes, that it was the interruption of the applicant’s normal trading operations brought about by the strike and the lock-out at MES which led ultimately to the appointment of Mr Crisp.
On 11 January 2007, solicitors for Mr Crisp wrote to the AMWU, referring to an agreement made that day, whereby the AMWU would terminate its activities at the picket line in response to an assurance by Mr Crisp that only the normal flow of goods would be carried into and out of the applicant’s site.
On 12 January 2007, Mr Crisp wrote to the Managing Director of MES in the following terms:
As you are aware I was appointed administrator of the above company on 27 December, 2006.
I understand there is a verbal/informal agreement between MES and MEC for MES to supply the labour requirements at the Yallourn site.
Given there is an industrial dispute between MES and the AMWU representing the skilled trades/workshop labour on site, MES is now not supplying the require labour to MEC to perform its’ contractual obligations to its customers.
I understand that MES has been negotiating with the AMWU to resolve this situation without success to date.
As Administrator I have a responsibility to source the required labour to allow the continued operation of the business of MEC. Accordingly, I request your acknowledgement that MES is unable to supply the required labour going forward and that it mutually consents to the partial termination of the informal arrangement to supply labour to MEC to the extent that MES cannot supply the required skilled trades employees.
Please advise by return that you mutually consent to the partial termination of the informal labour supply agreement.
Please confirm that you will assist me in obtaining alternate employment for MES employees by providing me with all the relevant details of the employees concerned.
By letter also dated 12 January 2007, MES replied to Mr Crisp in the following terms:
I refer to your letter of even date concerning the informal labour supply agreement between Mechanical Engineering Services Pty Ltd (MES) and Mechanical Engineering Corporation Pty Ltd (Administrator Appointed) (MEC).
I confirm that MES is unable to supply the required skilled trades labour to MEC pursuant to the agreement and MES mutually consents to the partial termination of the agreement to the extent that it relates to the supply of labour for the striking employees.
I will supply you with full details of the employees concerned to assist with them obtaining alternative employment. In this regard, I have no objections should you wish to offer employment to the striking employees directly.
I assume that if I do not here otherwise that you are happy at this point to keep the Current (MES) employee’s in the facility working on as per the current arrangements.
The AMWU picket was not lifted as a result of Mr Crisp’s solicitor’s letter of 11 January 2007. On 15 January, those solicitors wrote again to the AMWU, in the following terms:
We confirm that we act for Mr. Glenn Crisp of RSMI Bird Cameron Partners who, as you are aware have been appointed as the administrator of Mechanical Engineering Corporation (“MEC”) at Yallourn.
We are instructed that the AMWU and CFMEU have been engaged together with their respective members in unlawfully hindering the access and egress of people, goods and traffic to the premises of MEC at Yallourn. Your organiser, Mr. Dodd, made contact with our client on the 10th January confirming that the AMWU were engaging in the unlawful activity.
We are further instructed that the action is causing loss and damage to our client and preventing our client as the administrator from being able to carry out the duties of administrator. We note that at a meeting conducted on 11th January between the administrator and the unions, the unions agreed to lift the picket on certain conditions. We confirmed this arrangement by letter to Mr. Robb on the same day. The unions have not lifted the picket despite our client keeping the arrangement.
We seek your written confirmation that AMWU does not and will not support the unlawful activity that has been engaged in at the Yallourn site. Further, we seek your undertaking that you will instruct your members not to engage in such activities. If we do not receive such undertakings be 5.00pm Monday 15 January 2007 at the activity continues, our client will lodge application in a court of competent jurisdiction to seek relief.
According to the evidence of Mr Crisp, following the delivery of that letter, every ostensible indication that the picket line was the project of the AMWU disappeared. The respondents, however, remained present at the applicant’s gate, and engaged in conduct of the kind to which I shall presently refer. Although the first respondent stated in his affidavit that the picket line never had “union flags or banners displayed”, it was not seriously suggested by the respondents that I should not find that they themselves were amongst the group of persons participating in what I have called a picket line from the outset, and continue to do so.
According to the evidence of Mr Crisp, after the developments of mid-January 2007 to which I have referred, and it being evident to him that MES would continue to be unable to supply labour pursuant to its labour hire agreement with the applicant, he (Crisp) cancelled that part of the agreement between the applicant and MES that related to the supply of trades labour. He thereupon commenced to advertise, on behalf of the applicant directly, for metal trades employees. Consequent upon the partial cancellation of its agreement with the applicant, MES terminated the employment of its trades employees who had previously worked at the applicant’s site. It is not entirely clear from the evidence how this was done, but it appears, and I am prepared to find provisionally for present purposes, that MES gave those employees notice of termination on about 1 February 2007, and that the notices took effect on about 1 March 2007.
The applicant has offered direct employment to the former employees of MES, but very few have accepted those offers. Apparently only 11 tradespeople are presently so employed. That compares with a figure of nearly 50 trades employees who were working at the applicant’s site, in the employ of MES, before the 2006 dispute began. Mr Crisp’s objective is to build up the direct trades workforce of the applicant with a view to re-establishing such levels of business activity that would permit the applicant to trade profitably, and avoid liquidation.
The evidence of a supervisor employed by MES, and working at the applicant’s site, is that the respondents (all of whom are known to him) have engaged in activities which he characterises as follows:
(a)Constantly blocking access to the workplace and preventing employees from being able to drive into the workplace;
(b)Making physical threats, such as to put him in fear of being assaulted;
(c)Taking photographs of employees, and threatening that they (the respondents) would display the photographs all around the LaTrobe Valley, thus preventing employees from obtaining further employment;
(d)Constantly yelling obscenities at employees entering the site; and
(e)Making threats that they (the respondents) knew where employees lived, and that they would get them if they continued to attend work.
The first respondent, who says that he has from time to time taken on a leadership role in relation to the picket line, contests much of the evidence given by the supervisor. He says that, with one exception, he has never prevented any person from entering the site, and that he is unaware of any of the other respondents having done so. He explained the exception to which he referred having occured on 1 March 2007, and as having been related to his not having received a separation certificate, notice of termination or statement of entitlements from MES. He says that he has never threatened anyone attempting to enter the site, and is unaware of any other respondent having done so. He says that, when visitors approach the gate, he and the others then with him on the picket line “attempt to encourage the visitor to stop their car so that they might speak to them and discuss our concerns”. He says that he did take photos of some people entering the site, but that this was in response to MES managers taking photographs of persons on the picket line. He has not retained any photographs, and is unaware of any of the other respondents having done so. He has not made any threat in association with the taking of photographs, and is unaware of any of the other respondents having done so. He denies having “yelled obscenities constantly” at people entering the site, although he concedes that he has “uttered obscenities at such people two or three times per week, usually in response to obscenities being yelled at me”. He said that, to his observation, the conduct of the other respondents is consistent with his own. He denies having threatened any person in terms that he knew where people lived and would “get them”. He says that, since 1 March 2007, he and the other respondents have been careful to stay within the boundaries of what he describes as “the tent area”, and not to approach the driveway to the site as such.
The first respondent makes the following statement by way of explanation for the conduct in which he has engaged at the gate to the applicant’s site:
My employment was terminated by the company on 1 March 2007. I did not receive any payment in respect of redundancy. I believe I am entitled to a redundancy payment from the company. I wish to continue my protest in a lawful manner. My protest is for the purpose of bringing attention to the situation of the workers and thereby persuade the company to pay myself and other employees their outstanding redundancy entitlements.
The “company” to which the first respondent refers is MES.
In the light of the facts as I have described them above, the applicant contends that, arguably, the respondents are engaging in conduct in contravention of s 45D of the Trade Practices Act 1974 (Cth). Subsection (1) of that section provides as follows:
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.
Mr Flower, who appeared on behalf of the applicant, submitted that each of the respondents was a person who, in concert with the other respondents, engaged in conduct of a kind referred to in subpar (i) of par (a) of the subsection. He submitted that the conduct is hindering or preventing MES (the third person) from supplying labour hire services to the applicant (the fourth person). Because the fourth person is a corporation as defined, the circumstances specified in subs (3) exist. Mr Flower also submitted that the conduct is being 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 applicant.
The applicant presses for an interlocutory injunction in the following terms:
Pending the trial of this proceeding the first, third, fourth, fifth and sixth respondents be restrained from
(a)attending, congregating or assembling in the vicinity of the main gate of the property occupied by the applicant and situated at Yallourn Drive, Yallourn, Victoria or on or near the access road leading to the main gate; and
(b)hindering, preventing, intimidating or threatening in any way any person entering through the main gate of the premises occupied by the applicant and situated at Yallourn Drive, Yallourn, Victoria or travelling on the access road to the main gate for the purpose of obtaining access to the premises.
Mr Flower justified his client’s application for a restraint against attending etc “on or near the access road” by reference to its apprehension that, if the restraint were confined to activities in the vicinity of the gate to the applicant’s site as such, it was probable that the respondents would continue to engage in conduct similar to that complained of at a point further down the access road.
I consider first whether the applicant has established that it is arguable that the respondents have engaged, and are engaging, in conduct that hinders or prevents MES from supplying services to the applicant. If they have done so, I did not understand Mr McNamara, who appeared on behalf of the respondents, to submit that I should not find that it was arguable that they had done so in concert with each other.
There is a conflict on the evidence as to the actual activities of the respondents at the picket line. Mr McNamara criticised the state of the applicant’s evidence in this regard, particularly since the applicant has had many weeks to prepare its affidavit material. There is substance in those criticisms. The evidence upon which the applicant relies is brief and general, almost to the point of being cursory. No particular event or episode is identified. No specific act or omission of any identified respondent is referred to. Rather, the MES supervisor to whom I have referred provided, by way of the list of activities which I have summarised in par 12 above, a kind of abstract of the observed activities of the respondents (and perhaps others) on the picket line over a period of weeks. His evidence was expressed in a form more appropriate as a conclusion or judgment about the tenor, effect and impact of the respondents’ conduct, than to convey to the court exactly which respondent had done what, and to whom.
Notwithstanding these reservations, and the denials of the first respondent in relation to the supervisor’s evidence, I am obliged to conclude that there is a serious issue as to the nature and extent of the respondents’ activities in the vicinity of the applicant’s gate. If the supervisor’s evidence, general though it is, proves ultimately to reflect the true situation, it is likely to be held that some at least of the persons on the picket line engaged in conduct which constituted some hindrance to the employees of MES securing access to the applicant’s site and, therefore, to the supply of labour hire services by MES to the applicant, at least to the extent of “affecting to an appreciable extent the ease of the usual way of supply of … services”: Australian Builders’ Labourers’ Federation Union of Workers – Western Australian Branch v J-Corp Pty Ltd (1993) 42 FCR 452, 460. Despite the unsatisfactory nature of the applicant’s identification of those who participated in the conduct of which it complains, the evidence of the MES supervisor is that the respondents themselves have engaged in that conduct, in which circumstances I should at least hold that it is arguable that they have done so and, inferentially, propose to continue doing so.
In the circumstances, I am prepared to find it arguable that the respondents have engaged, and are engaging, in conduct that hinders MES supplying labour hire services to the applicant.
I consider next the question of purpose. Mr Flower submitted that it should be inferred that the respondents’ purpose, in their activities at the picket line, was to cause substantial loss or damage to the applicant’s business. It is sufficient if the respondents have that purpose, notwithstanding that they may have other purposes: see s 45D(2). Mr McNamara referred to the paragraph in the first respondent’s affidavit which I have set out at par 14 above, and submitted that the only evidence of the respondents’ purpose was to the effect that they desired to make a protest about not having received redundancy pay from MES, and to bring about a situation in which their redundancy entitlements were paid.
Mr Flower’s proposition about purpose was broadly as follows. While the respondents were originally present on the picket line in the prosecution of their industrial dispute with MES, that dispute came to an end when their employment was terminated. The respondents are former employees of MES who have declined offers of employment by the applicant. Mr Crisp is in the course of advertising for, and engaging, persons to be directly employed by the applicant, with a view to restoring the applicant to a position of profitability. The respondents are, in the circumstances, faced with the choice of either taking up employment with the applicant – and thereby, I infer, effectively conceding the matters in relation to which they were in dispute with MES – or seeing the jobs at the applicant’s site disappear forever, as new employees are taken on pursuant to the efforts of Mr Crisp. It is therefore imperative for the respondents somehow to prevent Mr Crisp’s stratagy from working effectively. They do this by vexing (to use a neutral term) the employees of the applicant in their attempts to gain access to their workplace, but also by vexing the employees of MES, with a view (in the case of the latter) to causing those employees to resign from that employment, thereby impairing the ability of MES to provide suitable labour to the applicant, and making the applicant’s position even more precarious than it presently is.
As Mr McNamara pointed out, there are difficulties with the proposition advanced by Mr Flower. On one view, the respondents are doing no more than they have done since they were locked out of their employment by MES in September 2006. Their actions were then directed to MES, not the applicant. They conducted their picketing activities at the applicant’s gate because that was their workplace. Subsequent to having their employment terminated by MES, the respondents have continued in much the same kind of activity at the applicant’s gate, and there is no reason not to take the first respondent’s evidence at face value, and to hold that his purpose, and that of his colleagues, is to prevail upon MES (to whose employees the actual conduct must, if s 45D is to apply, be directed) to make redundancy payments. Since the applicant’s case on purpose is wholly inferential (as such cases will commonly be), Mr McNamara submitted that the court would not draw a malignant inference against the respondents when a benign inference was equally available. Indeed, he submitted that the benign inference – that the respondents’ purpose was concerned with MES, not the applicant – was the more obvious and natural one on the evidence before the court.
I consider that the applicant’s inferential case is weak, but arguable nonetheless. I should not presume to know or understand enough about the apparently complex interrelationships which lie behind the activities of the respondents to exclude the fairly arguable possibility that they have a purpose of causing loss or damage, or at least some kind of detriment, to the applicant in the way for which Mr Flower contends. On the evidence before the court (indirect though it is), the applicant’s employees, as well as those of MES, have been subjected to the conduct and behaviour by the respondents of which the applicant complains. Although conduct directed towards the applicant’s own employees does not found a cause of action under s 45D, the fact that such conduct occurs may be relevant to the matter of the respondents’ purpose. If that purpose related only to MES, it is not easy to see why the respondents would have included the applicant’s own direct employees as targets of their conduct. Further, it is not apparent to me why the respondents should have found it necessary, or even appropriate, to give expression to their claims for redundancy pay by activities of the kind of which the applicant complains. Assuming there to be an entitlement to such pay, I cannot understand why conventional proceedings for recovery might not have been taken.
I do not suggest that the respondents may not ultimately produce legitimate and satisfactory answers to the concerns which I expressed in the previous paragraph. I recognise that they have had very little time to prepare their material in response to the applicant’s interlocutory application, and to organise their factual response in the form of affidavits. However, the court must work within the confines of the evidence which it has, and that evidence leads me to conclude that the applicant’s case on the matter of purpose, although weak, is seriously arguable.
Notwithstanding what I have said above, it is not sufficient that the respondents have the purpose of causing some kind of detriment to the applicant: it is necessary that their purpose be the causing of substantial loss or damage to the business of the applicant. On the proposition which I have found to be arguable, I should also hold it to be arguable that the respondents intend that their conduct would have such an impact on the applicant as would cause Mr Crisp to desist from his present strategy of seeking to restore the applicant to profitability by the engagement of trades employees directly. In accordance with the authorities, I would hold that loss or damage of an order sufficient to effect such an outcome should be regarded as substantial: see Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees Union (1979) 27 ALR 367, 374-375.
I consider next the matter of loss or damage as such. The section requires not only purpose, but also that the conduct complained of have the effect, or be likely to have the effect, of causing substantial loss or damage to the business of the applicant. The only evidence of loss or damage actually suffered by the applicant to date is that which relates to the diminution in the applicant’s average monthly revenue to which I have referred in par 6 above. Undoubtedly, that diminution constitutes substantial loss or damage for the applicant. However, there is no suggestion that the diminution was caused by the picket line activities of which the applicant complains. Indeed, the evidence is to the effect that it was caused by the AMWU strike, and subsequently by the MES lock-out. That is what one would expect: the strike and lock-out effectively deprived the applicant of its production workforce. Consistently, Mr Flower accepted that there was no evidence before the court that the conduct of the respondents on the picket line had caused the applicant to suffer substantial loss or damage.
Mr Flower submitted, however, that I should find, as an arguably correct proposition, that the respondents’ conduct was likely to have the effect of causing substantial loss or damage to the business of the applicant. He relied upon the following paragraph in Mr Crisp’s affidavit:
The advertisements that I have caused to be placed in the media have resulted in some labour being employed directly by me. Other potential employees have indicated that they would be happy to take up employment but are afraid of the respondents and would not be prepared to take up employment whilst the respondents continue the picket. I am further concerned for the employees supplied to me via MES who are being threatened on almost a daily basis. Whilst such employees have not at this stage given into the pressure applied to them I am concerned that they may well do so in the future by resigning from their employment. If the MES employees do give in to such pressure then the business will not be able to continue and I will be faced with little alternative but to recommend to creditors the winding up of the business.
In this paragraph, Mr Crisp deals with two situations. He deals first with the circumstances of potential direct employees of the applicant, expressing the view that some would not be prepared to take up employment while the respondents’ activities continue. He deals secondly with the circumstances of the existing MES employees who are working at the applicant’s site. He expresses a concern that they may give in to pressure applied by the respondents and resign from their employment. In such a case, Mr Crisp opines that the business would not be able to continue, and that he would have to recommend that it be wound up.
Mr Crisp’s concerns with respect to potential direct employees of the applicant assume a reticence on the part of such persons to attend for work at the applicant’s site whilst the respondents’ picket line is in place. To the extent that the respondents’ conduct is thought likely to have such an effect, it would not be conduct of the kind to which s 45D is addressed. On the applicant’s case, that section operates by reference to the impact of the respondents’ conduct on employees of MES. The section is not concerned with, and the applicant cannot be heard to complaint about, so much of the respondents’ conduct as has a detrimental effect upon the applicant by causing existing or potential employees to be reticent about attending for work at the applicant’s site. Thus I consider that the first of the two bases for Mr Crisp’s apprehension as to the likely effect of the respondents’ conduct does not advance the applicant’s case under s 45D.
Turning to the second of Mr Crisp’s concerns in the passage quoted above, it must be accepted that, if the respondents’ conduct was likely to have the effect of causing all or most of the MES employees to resign from their employment, such would arguably lead to substantial loss or damage to the business of the applicant, and thus satisfy the requirement of s 45D with which I am presently concerned. I am prepared to infer that some or all of the administrative and supervisory staff provided by MES to the applicant occupy important positions and could not be easily replaced. However, the fact that Mr Crisp expressed these concerns does not, in my view, of itself amount to evidence sufficient to justify the court in finding, even arguably, that the respondents’ conduct was likely to have the effect required by s 45D. The existence or absence of that likelihood is a matter to be decided by the court as an objective fact, and a view expressed by Mr Crisp may be an ingredient in the court’s determination of that matter, but it could not be dispositive.
I have a further concern about the evidence of Mr Crisp as set out in par 28 above. As a result of certain rulings which I made to the admission of evidence, Mr Flower called Mr Crisp to give supplementary evidence viva voce. In dealing with a different paragraph in his affidavit, Mr Crisp said that the source of his information as to the events on the picket line was the applicant’s site manager at Yallourn Drive, Ross William Turnbull. I asked Mr Crisp a number of questions with reference to the last fortnight. He told me that, according to Mr Turnbull, over that period it was the applicant’s own employees who had predominantly been the target of the vexing words and actions of the respondents. He said that the employees of MES had, over that time, been very little troubled by the respondents. Mr Flower rightly made the point that this evidence by Mr Crisp did not diminish the force of the evidence of the MES supervisor to which I have referred in par 12 above. But that point related to the general tendency of the conduct of the respondents to hinder the supply of services by MES. At the level of considering whether that hindrance would be likely to have the effect (as apprehended by Mr Crisp) of causing the MES employees to resign from their employment, the same rejoinder cannot be made.
The MES supervisor himself said, in his affidavit, that he had been put in fear of what action could be taken against him and his family, that he had lost sleep, that he had been constantly worried about the issue (presumably the threats to which he referred) and that the matter (presumably, those threats) had a negative impact on his home and on his work life. However, he did not say that he had in contemplation resigning from the employ of MES. Neither did any other employee of MES give evidence to that effect. There is no affidavit from any manager or executive of MES to explain what would happen, as a matter of practical likelihood, if one of those presently engaged at the applicant’s site expressed a wish not to continue to be so engaged. The court knows that MES is a labour hire company, but it knows nothing about its presence, or job opportunities, elsewhere than at the applicant’s site. Whether any employees of MES would be likely to resign from that employment would, I infer, require consideration not only of the disadvantages for working for MES at the applicant’s site, but also of any countervailing benefits there may be in retaining that employment.
I recognise, of course, that this is not the occasion to demand of the applicant that it supply proof of every ingredient required for the establishment of a case under s 45D to the extent that would be necessary at trial. I recognise that, if the evidence, provisional though it is, fairly leaves open the inference that a particular outcome is likely, that likelihood should be regarded as having been established at the seriously arguable level. However, there is simply no evidence before the court on the present occasion such as would justify the conclusion that it was likely, as distinct from merely possible, that the employees of MES would not only resign, but resign in sufficient numbers to have a substantial impact by way of loss and damage to the applicant’s business, as a result of the respondents’ conduct. Even on an interlocutory occasion, I do not regard the unsupported apprehensions of Mr Crisp, expressed in the way set out in the extract in par 28 above, as a satisfactory basis for making the findings which the applicant seeks.
It might be thought odd that I should find that it is arguable that the respondents are hindering the supply of services to the applicant by MES, and that they have the purpose of inflicting substantial loss or damage on the business of the applicant, but not that their conduct is likely to have that effect. It is important, however, to note that I have not held it to be arguable that the respondents are preventing the supply of services by MES. In a case involving prevention, establishing the likelihood of substantial loss and damage may be a fairly simple task – at least at the level of an arguable case. However, there is no evidence that any labour hire services which MES is contracted to supply to the applicant have not in fact been supplied (ie in so far as those services relate to administrative staff, supervisors and apprentices). The activities of the respondents are merely hindering MES in its supply of those services. There has, to date, been no proven substantial loss or damage. On the matter of the likelihood of such an effect in the future, the applicant does not have the benefit of being able to point to past experience. The loss and damage which it fears is wholly a matter of anticipation. At this point, the applicant’s problem is that I am not satisfied, on the fairly meagre evidence which has been led, that there is a solid objective basis for that anticipation such that I could find it to be seriously arguable that the applicant is likely to sustain substantial loss or damage.
Because I am not persuaded, on the evidence before the court, that it is arguable that the conduct of the respondents would have, or would be likely to have, the effect of causing substantial loss or damage to the business of the applicant, I hold that the applicant has not established that it is seriously arguable that, unless restrained, the respondents would engage in conduct in breach of s 45D of the Trade Practices Act. It follows that the application for interlocutory relief must be dismissed.
I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 13 April 2007
Counsel for the Applicant: A Flower Solicitor for the Applicant: Workplace Legal Counsel for the Respondent: M McNamara Solicitor for the Respondent: Maurice Blackburn Cashman Date of Hearing: 11 April 2007 Date of Judgment: 13 April 2007
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