Morris McMahon and Co Pty Ltd v AFMEPKIU

[2003] NSWSC 452

CITATION:	Morris McMahon & Co Pty Ltd v AFMEPKIU [2003] NSWSC 452
HEARING DATE(S):	21 May 2003
JUDGMENT DATE:	21 May 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Adjustments made to disputed terms of injunction to restrain picketing otherwise made by consent.
CATCHWORDS:	EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Balance of convenience - Injunction to restrain picketing - Form of restraints.
CASES CITED:	Barloworld Coatings (Aust) Pty Limited v Australian Liquor, Hospitality & Miscellaneous Workers Union (2001) 108 IR 107 GTS Freight Management Pty Limited v Transport Workers Union (1990) 33 IR 26
PARTIES :	Morris McMahon & Co Pty Limited (P) Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (D)
FILE NUMBER(S):	SC 2829/03
COUNSEL:	B A J Coles QC and N J Beaumont (P) S Crawshaw SC (D)
SOLICITORS:	Cutler Hughes & Harris (P) Turner Freeman (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 21 MAY 2003

2829/03 MORRIS McMAHON & CO PTY LIMITED v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION

JUDGMENT

1 HIS HONOUR: These proceedings concern an application by a company to restrain picketing of its premises by a trade union and persons associated with the union. The ambit of what I need to decide is limited because the parties have sensibly agreed on an interlocutory regime pending the final determination of these proceedings. It is only in a number of respects as to the precise ambit of the injunctions that I have been asked by the parties to decide, brevi manu as it were, between the versions contended for by the opposing parties. It is really in three areas that I am called upon to make those decisions.

2 The opening words in relation to the proposed injunctive relief are that the defendant union should be restrained from doing certain acts. The plaintiff’s contention is that that restraint should be expressed to be “by itself, its officers, delegates, members, servants and agents”. The defendant is prepared to undergo an injunction restraining it “by itself, its servants and agents”, but opposes the inclusion of the other words. Somewhat related to the form in which those opening words of the injunctive relief are cast is the question as to whether or not there should be a final restraint at the end of the injunctive relief restraining the defendant from “procuring or inducing any person or persons to do or attempt to do any of the things restrained”.

3 The second area relates to a head of injunction which the plaintiff claims should be as follows:

“Yelling loud insults, threats including from time to time threats of physical violence, and abuse and throwing mud, eggs and other objects and materials, at, and attaching offensive stickers or labels to the Vehicles of, Persons entering or exiting the Premises or seeking to do so.”

This again is agreed to by the defendant, save that it asks for the excision of the words “loud insults” and “abuse”.

4 Thirdly, a restraint is sought in terms of:

“Using megaphones and loudspeakers either to shout very loudly through or to produce loud high-pitched sounds, which are audible on the premises, or sounding for sustained periods of time car horns at a loud level, which are audible on the premises.”

Again, the defendant agrees to an injunction on those terms, provided that the words “which are audible” where twice appearing are excised.

5 Although I have been asked to decide these matters in short order and without great debate or research, I have been given useful references to authority by both parties. Particularly useful have I found the decision of Bryson J in Barloworld Coatings (Aust) Pty Limited v Australian Liquor, Hospitality & Miscellaneous Workers Union (2001) 108 IR 107. His Honour’s analysis in that decision of the factors to be taken into account on each side in an application for an interlocutory injunction to restrain picketing are particularly useful. The other authority which has been of particular use is GTS Freight Management Pty Limited v Transport Workers Union (1990) 33 IR 26, a decision of Keely J in the Federal Court. The use of that decision is in illustrating the ambit of the words “by its servants and agents” in the enforcement of injunctions in the field of industrial action.

6 In relation to the question of the basic words of the restraint, I am of the view that the words “officers, delegates, members” should be omitted. The words “by its servants and agents” have a recognised ambit in the enforcement of injunctive relief in the industrial relations field, as is illustrated by the GTS Freight Management case. The point particularly of the word “agents” is that some authorisation of the acts must be demonstrated or be able to be inferred for a defendant union to be punished for contempt. That decision may not be entirely easy, but it can be come to within an established legal framework. The servants or agents cannot, of course, themselves be punished, as they are not parties to the proceedings and are therefore not personally subject to the restraint. In operating within the recognised framework, in my view the inclusion of the words “officers” and “delegates” only complicates the situation. The union could only be punished for the acts of officers and delegates if it could be inferred that it ought be responsible for their actions in the circumstances. I do not think it useful to stipulate in addition to the formula “servants and agents” particular classes of servants or of agents. That, I think, would complicate or bedevil the relevant process of decision rather than assisting it. I therefore do not intend to include those words. Equally I do not propose to include the word “members”. Again, any member who participates in a breach, if it can be demonstrated that he or she is acting on behalf of the union, will attract liability to the union as an agent, but I do not think it profitable to stipulate “members” by description.

7 However, having removed those particular words from the formula introductory to the injunctive relief I think it reasonable to grant the plaintiff an additional restraint restraining the defendant from “procuring or inducing any person or persons to do or attempt to do any of the things restrained” and I rule that that form of restraint should be included in the orders.

8 As to the second class of matters, I am of the view that the words “loud insults” and the words “and abuse” should be omitted from the relevant head of injunction. This is a borderline case. Loud insults and abuse in some circumstances can amount to a besetting or an intimidation which ought be restrained. However, on the other hand, as Bryson J points out in the Barloworld case, if they do not go so far but are only in reality an exercise of freedom of expression, then the Court should be slow to restrain them. The additional problem that I have with them is that they contain the same sort of imprecision as Bryson J comments on in Barloworld at 114. I think that in the context they have less content than the concept of threats, including threats of physical violence. In return I shall strengthen the injunction against threats by changing the word “yelling” to the word “making” since it seems to me that threats should be restrained, whether made over a loudspeaker or uttered sotto voce.

9 The third of the matters I need to deal with is the form of the injunction relating to the use of megaphones and loudspeakers. In general terms it seems to me from the features of the evidence that are drawn to my attention that a restraint of the offensive use of megaphones and loudspeakers indicated in the head of restraint set out above will be sufficiently dealt with if that use is restrained on the premises, bearing in mind the size and nature of the premises. However, there is evidence of instances of an individual being harassed by a loudspeaker or megaphone being used near the premises in his close vicinity in a way that virtually amounts to an assault. Rather, however, than leave that to be dealt with simply under the restraint of assaults, I am of the view that, although the words “which are audible” should be removed, there should be inserted after the words “on the premises” where appearing, words to the effect of “within three metres of any person who is actually entering or attempting to enter within 10 metres of the premises” – and similar words in respect of persons leaving.

10 I have already noted the giving of the usual undertaking as to damages. I make orders in accordance with the short minutes initialled by me and placed with the papers.

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Last Modified: 06/05/2003