Outshine Pty Ltd v Construction Forestry Mining and Energy Union
[2004] VSC 72
•15 March 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 4549 of 2004
| OUTSHINE PTY LTD | First Plaintiff |
| -and- | |
| BTC DEVELOPMENTS PTY LTD | Second Plaintiff |
| v | |
| CONSTRUCTION FORESTRY MINING AND ENERGY UNION | First Defendant |
| -and- | |
| COMMUNICATIONS ELECTRICAL AND PLUMBING UNION | Second Defendant |
| -and- | |
| NORMAN KELLY | Third Defendant |
| -and- | |
| JOHN CUMMINS | Fourth Defendant |
| -and- | |
| MICHAEL POWELL | Fifth Defendant |
| -and- | |
| JOHN FINN | Sixth Defendant |
| -and- | |
| MURRAY OXNAM | Seventh Defendant |
| -and- | |
| NOEL BRITTS | Eighth Defendant |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2004 | |
DATE OF JUDGMENT: | 15 March 2004 | |
CASE MAY BE CITED AS: | Outshine Pty Ltd & anor v CFMEU & ors | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 72 | |
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PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain threatened tortious conduct constituted by blockade of building site – applicability of s.166A of the Workplace Relations Act 1996 (Cth) considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M. Derham QC with Mr J D’Abaco | Pilley & Associates |
| For the First, Second, Third, Fourth and Fifth Defendants | Ms B. O’Neill | Maurice Blackburn Cashman |
For the Sixth Defendant | Mr W. Alstergren | Henderson Legal |
| For the Seventh and Eighth Defendants | Mr T. Lynch | Gordon Campbell |
HIS HONOUR:
By summons dated 13 February 2004, the plaintiffs seek interlocutory injunctions restraining the defendants, inter alia, from preventing, hindering or interfering with free access to and free egress from 41-47 Blake Street, Reservoir (“the Site”) and from abusing, threatening, besetting, harassing or intimidating any person entering or leaving or about to enter or leave the Site. Interim injunctions have been granted pending the determination of this application.
The application is made in the following circumstances.
The first plaintiff (“Outshine”) is associated with a number of companies which own and operate aged care facilities in metropolitan Melbourne. It is the registered proprietor of the Site.
On 7 October 2002, Outshine entered into a contract with Moose Property Services Pty Ltd (“Moose”) for the construction of a two-storey building, for a 112-bed aged care facility, at the Site. The total projected cost of the building project is approximately $8.8M. By September 2003, the building work was approximately 5 months behind schedule and construction work had virtually ceased. Outshine was informed by the architect and by Moose itself that Moose wanted to get out of the project. One of the directors of Moose told Ming Fong Julia Chu (“Ms Chu”), a director of Outshine, that Moose could not finish the construction works and that it would hand back the Site to Outshine, provided certain amounts were paid by Outshine to Moose. Ms Chu subsequently learned that the plumbing sub-contractor (the seventh defendant “Mr Oxnam”), the carpentry sub-contractor (the eighth defendant, “Mr Britts”) and the electrical sub-contractor each claimed that they had not been paid by Moose for the work they had performed on the site.
In October 2003, Moose virtually abandoned the Site. On 31 October 2003 Outshine’s solicitors gave Moose a “show cause” notice, requiring Moose to show cause why the whole of the work should not be taken out of its hands, based on a substantial failure to execute the work with due diligence. On 20 November 2003, Outshine gave notice to Moose that Outshine was taking possession of the Site and that Moose was excluded from entering the site.
On 20 November 2003, Mr Magee, a solicitor and a consultant engaged by the plaintiffs’ solicitors, attended the Site on behalf of Outshine to ensure that there was an orderly resumption of possession from Moose.
On 22 November 2003, Mr Magee again attended the site, and a number of sub-contractors arrived and removed materials and equipment. Mr Oxnam of Platypus Plumbing, the plumbing sub-contractor, said to Mr Magee that Moose owed him something in the vicinity of $400,000 on this and another job, and that, once the unions got wind of the removal of Moose from the site, the job would never start up again until the sub-contractors had been paid. Mr Magee said to Mr Oxnam that whether the sub-contractors got paid or not was a matter for them to take up with Moose, and that the sub-contractors had no contract with Outshine.
In November 2003, the architect retained by Outshine approached the second plaintiff (“BTC”) to tender for the completion of the construction of the aged care facility at the site.
On 4 December 2003, Outshine engaged BTC by written agreement to complete the building works. The total contract sum is approximately $4.6M. During December 2003, BTC invited a number of sub-contractors to tender, including sub-contractors previously retained by Moose. However, BTC formed the view that the tenders submitted by the previous sub-contractors were excessive, particularly because some of them included in their tender prices amounts for past work which had not been paid by Moose. Construction work by BTC commenced on 12 January 2004, although most of the work in January comprised remedial works and an assessment of what work needed to be done to complete the building. Approximately 40% of the construction work had already been performed by Moose. A number of sub-contractors were retained by BTC for the purposes of its contract and were due to commence work in or about early February 2004.
In the week commencing Monday 2 February 2004, a man who identified himself as Mick Powell (the fifth defendant, “Mr Powell”), telephoned Ms Chu and told her that he was an organiser with the first defendant (“CFMEU”). Mr Powell said to Ms Chu that he wanted to have a friendly chat with her about the Blake Street project and they arranged to meet on the afternoon of Wednesday 4 February 2004 at the Carlton offices of the CFMEU. However, this meeting was subsequently cancelled as Ms Chu was unwell.
On the morning of Tuesday 10 February 2004, Ms Chu was again telephoned by Mr Powell. Mr Powell said to Ms Chu that he and some sub-contractors were at the Site, and he wanted her to come to the Site to talk with them. Ms Chu said that she was not well and could not come. Mr Powell then said to Ms Chu that his boys had not been paid and asked did she think that was fair. Ms Chu said to Mr Powell that Outshine had also suffered as a result of what had occurred with Moose and Mr Powell repeated his wish for her to meet with him and the sub-contractors, and that they wanted to be paid. About an hour and a half later, Mr Oxnam telephoned Ms Chu and demanded that she meet with him and she said that she was unable to do so. Mr Oxnam asked her to sack BTC and said that they wanted to come back and finish the work for Outshine. Ms Chu said to Mr Oxnam that Outshine could not sack BTC as it had an agreement with it. Mr Oxnam then said to Ms Chu words to the effect that “You will never get this building site finished. We will not let you. For your benefit, you will have to come to the table, otherwise it will never end”. Ms Chu said that she would speak with Outshine’s solicitors and get back to him.
The Site is bounded by Blake and Davies Streets in Reservoir. There are two entrances onto the Site from Blake Street (Gate 1 and Gate 2), and a third entrance from Davies Street (Gate 3). The principal gate is Gate 1.
On Tuesday 10 February 2004, Jonathan Nicholas Kambouris (“Mr Kambouris”), a director of BTC, arrived at the Site at approximately 7am. Other employees of BTC were already working on the Site. At approximately 8am, two cars arrived at the Site, two individuals got out of one car, and one individual got out of the other. Two of them were wearing windcheaters with CFMEU logos on them and the other was wearing a windcheater with a logo of the second defendant union (“CEPU”). One of the cars was parked in the driveway of Gate 1, blocking access to the Site. Mr Kambouris and BTC’s site foreman walked over to speak to them. One of the men introduced himself as “Mick” and another introduced himself as “Norm”. Mr Kambouris has since identified them as Mr Powell and the third defendant (“Mr Kelly”). They are employed as organisers by CFMEU and CEPU respectively. Mr Kambouris introduced himself and the site foreman, and asked Mr Powell and Mr Kelly why they were on the Site. Mr Kelly said words to the effect that “We’re here to make sure that our members get their money”. Mr Kambouris asked why they didn’t go to the builder who owed them the money, and Mr Kelly said that Moose was about to go under, and, anyway, it was the developer (ie, Outshine) who owed them the money. The conversation continued for some time without reaching any conclusion. While this discussion was taking place, more cars were arriving at the Site and individuals were getting out of those cars and milling around Gate 1. These individuals separated into two groups and milled around Gate 1 and Gate 2. Rows of cars were parked on the road across the entrances to Gate 1 and Gate 2, preventing people and vehicles from entering into and leaving the Site.
After about an hour, Mr Kambouris saw a waste disposal truck from Collex Waste Management drive up to Gate 3. Collex was scheduled to empty the rubbish from a waste bin which was accessed via Gate 3. Mr Kambouris saw Mr Powell and two others walk along Davies Street and speak with the driver of the truck. Mr Kambouris then received a telephone call from somebody at Collex, who said that he had been contacted by the driver of the truck, and that the driver had told him that he (the driver) had been told by certain individuals that there was an industrial dispute on the Site. Mr Kambouris replied that he was at the gate ready to open it so that the driver could come and take away the rubbish. The caller said that he would speak to the driver and get back to Mr Kambouris. Mr Kambouris saw further discussion take place between the driver and Mr Powell. Mr Kambouris then received another telephone call from the Collex representative, who told him that the driver was not prepared to enter the Site. The driver then left. Mr Powell then returned to the Blake Street gates and said to Mr Kambouris words to the effect (while pointing to the individuals assembled outside Gates 1 and 2) “That’s the way it’s going to be until these blokes get paid”. Mr Kambouris yelled out to Mr Powell “This reeks of a blockade” and Mr Powell shrugged his shoulders. Mr Kambouris then telephoned two prospective sub-contractors who were due to visit the Site and told them not to come that day.
At about 10:30 – 11am, the individuals “picketing” the gates left and the cars blocking the gates were also driven away.
On Wednesday 11 February 2004, Mr Kambouris arrived at the Site at about 6:30am. He observed Mr Kelly standing outside Gate 1 with his car parked across Gate 1 blocking the entrance and preventing access to the Site. By about 7–7:15am, there were some 20–25 people milling around Gates 1 and 2. Cars were parked across both driveways of Gates 1 and 2, blocking access to the Site, and a car was also parked on the road outside Gate 3, blocking the gate and preventing access into and out of the Site. Cars were also parked on the nature strip outside the Site. Mr Kambouris saw Mr Powell and Mr Kelly standing outside the Site.
At about 8am, a meeting took place on the Site between Mr Kambouris, a solicitor for BTC, the site foreman, Mr Powell and Mr Kelly. BTC’s solicitor suggested a meeting at the offices of Outshine’s solicitors to see if the dispute could be resolved. Mr Powell said that he would have to check this suggestion with his superiors and with the sub-contractors. Mr Powell used his mobile telephone and also had a meeting on the other side of Blake Street with individuals who Mr Kambouris recognised as sub-contractors who had worked on the Site for Moose. It was agreed that there should be a meeting, as suggested, at 10am on 12 February 2004, and BTC’s solicitor went away to get the address of Outshine’s solicitors. While that was happening, Mr Powell pointed to a scaffold erected outside one of the buildings on the Site and said to Mr Kambouris words to the effect “This scaffold is black-banned”. Mr Kambouris asked him what he meant and Mr Powell said words to the effect “It just is”. Mr Kambouris asked Mr Powell what would happen if he touched the scaffold and Mr Powell replied “You will be the first to fucking find out”.
Shortly thereafter, BTC’s solicitor and Mr Kambouris walked over to speak to Mr Powell and Mr Kelly concerning the address for the forthcoming meeting and Mr Kelly said that while BTC might not be liable for the money that was owed to the old sub-contractors, no work was to occur on the Site until the sub-contractors were paid. Mr Powell then said that the “picketers” outside the Site were the sub-contractors and they (ie, the union organisers) were only there to support them. The “picketers” continued to maintain their positions outside the gates with their cars parked across all three entrances. At about 10:30 – 11am, the individuals and the cars left, but Mr Kambouris recognised some of these cars driving by from time to time during the remainder of the day.
On Thursday 12 February 2004, the entrances to all three gates were again blocked as previously, but by then there were about 80 persons “picketing” the site, milling around and outside Gates 1 and 2. Mr Kambouris commenced taking photographs of the scene when he noticed Mr Powell running across to him yelling. Mr Kambouris ran in the opposite direction across a park and into a side street. He then saw someone else, who he did not recognise but who was wearing a CFMEU windcheater, running after him. Mr Kambouris started running again and at the end of the street saw Mr Kelly driving his car down the street. As Mr Kambouris deposes:
“He drove past me, then did a U-turn and as I attempted to cross the street, he appeared to accelerate, driving his car directly at me, before screeching to a stop less than half a metre in front of me. Mr Kelly looked out of the window at me and yelled words to the effect “What are you taking pictures of?” I saw him apply the park brake and take off his seat belt, and I was afraid that he was going to get out of the car and approach me, so I ran away again. As I ran away, I used my mobile telephone to dial “000” and reported the incident to the Victoria Police.”
Such photographs as Mr Kambouris was able to take show a very large number of motor cars surrounding the boundaries of the Site and in its vicinity. BTC contacted a number of companies which it had arranged to meet on the Site that day and postponed the meetings.
On Thursday 12 February 2004, a meeting was held at the offices of the plaintiffs’ solicitors at which were present Mr Magee (the consultant engaged by the plaintiffs’ solicitors), Mr Kiatos (BTC’s own solicitor), Ms Chu, Mr Powell and another representative of the CFMEU, Mr Cummins (the fourth defendant), Mr Kelly, Mr Oxnam, Mr Britts, Mr Finn (the sixth defendant from Northwest Airconditioning) and a number of others. The meeting ran from about 10am to 11am. Mr Magee’s affidavit deposes as to what occurred at the meeting. According to Mr Magee, Mr Cummins repeatedly said words to the effect that Outshine had to “get real” and understand that it was unfortunate but there was a new reality in the building industry and the building would never get built unless Outshine paid the unpaid sums which Moose owed to the sub-contractors. Mr Magee repeatedly told Mr Cummins that Outshine did not owe the sub-contractors any money and if any money at all was owed, Moose owed it. Mr Cummins said words to the effect that they were not interested in that and that if they (Outshine) thought that the sub-contractors were going to walk away with nothing, they were foolish. Mr Cummins said that although they were very sorry for Outshine, they demanded that it agree to pay an amount of $850,000 to the sub-contractors. Mr Finn then said that Outshine should pay the amounts owed out of retention moneys held by Outshine and Mr Magee replied that he was aware that the Deputy Commissioner of Taxation had brought a petition to wind up Moose and that a liquidator would most likely look to Outshine for a refund of the retention moneys. Mr Cummins said that he “didn’t give a shit” where the money came from but that they had to accept the new reality and that if the sub-contractors did not get paid, then the job would not restart and the pickets would remain. Mr Magee replied that all certified progress certificates had been paid by Outshine, which did not owe anyone any money in relation to the job. Mr Cummins said this was “irrelevant” and that Mr Magee was ignoring the new reality of the building industry.
During the course of the above discussion, each of Mr Finn, Mr Britts and Mr Oxnam (with Mr Finn doing most of the talking) said that they wanted to finish the job and that they were there to negotiate a deal. Mr Finn said that the sub-contractors had a moral obligation to finish the job and were ready and willing to do so provided Outshine paid to them the money owed by Moose. Mr Magee asked them what deal they proposed, and Mr Finn said that Outshine should pay to them the money owed by Moose, sack BTC as the builder on the Site and they would then return to finish off the work. Mr Magee then said that the bank would not finance the project unless there was a registered builder in place and none of the sub-contractors were registered builders, and that Outshine had an existing contract with BTC which he would not advise Outshine to break. Mr Oxnam said words to the effect that “as long as my arse points to the ground, this building will never get built until I get paid”. Mr Powell then said that the picket would continue indefinitely until all the sub-contractors were paid, and Mr Finn reiterated this in similar terms. Mr Finn added that he, Mr Oxnam and Mr Britts represented all the sub-contractors on the Site who had not been paid. Shortly before the meeting ended, Mr Oxnam said words to the effect that “it is a new reality, you have to pay, otherwise your job will never get started, the job will never be finished and it will be a ghost town forever”.
On Friday 13 February 2004, Mr T Kambouris (an estimator employed by BTC and the father of the director Mr Kambouris) attended the Site at about 7am and observed the driveways to the Site being blocked by cars and about 20 people milling around the gates. Mr T Kambouris was unable to drive his car onto the Site. Mr T Kambouris also visited the Site on earlier occasions (10 February and 11 February), and observed Messrs Finn, Oxnam and Britt, all of whom he knew, taking part in the picket on both occasions.
On 16 February 2004, the picket was still continuing. On 17 February 2004, Mr T Kambouris attended the Site at about 6am, at which time there was no one outside the entrances to the Site. At about 6:30am he saw a motor vehicle arrive outside Gate 1. The driver unloaded a barbecue on the footpath on the opposite side of the road to Gate 1. From about 6:30am, motor cars started arriving at the Site and within the next 20 minutes there were about 25 to 30 people assembled outside Gates 1 and 2, including Mr Kelly. Mr T Kambouris also saw Mr Powell’s car parked outside the Site, although he did not see Mr Powell. The entrances to Gates 1 and 2 were blocked by motor vehicles. Mr T Kambouris deposes that the picket generally finished between 11am and 12 noon but it was very difficult to get sub-contractors onto the Site at that time as more than half the working day had already passed.
As a result of the blockade of the Site, Mr Kambouris deposed that BTC was unable to fulfil its contractual obligations to Outshine and had recommended to individuals who would otherwise be required to attend the Site not to do so. A number of sub-contractors retained by BTC were unable to access the Site, including tilers, plumbers, electricians, bricklayers and scaffolders.
Ms Chu deposes that about 80 residents from two other older aged care facilities operated by an associated company of which she is a director have been scheduled to move into the new facility. She further deposes that Outshine has incurred extensive borrowing to build the facility, that approximately $5M has been spent on the work to date, interest is running on the borrowings and that Outshine is losing substantial moneys for every day of delay. She also deposes to a number of other risks of harm to Outshine as a result of the delays, caused, inter alia, by the picketing of the Site.
Two affidavits were filed on behalf of the CFMEU, Mr Cummins and Mr Powell. An affidavit by Ms Lester, a solicitor employed by the firm acting for those defendants in fact deposes as to matters concerning third defendant (Mr Kelly). Ms Lester deposes that she is informed by Mr Kelly, an organiser with the CEPU Plumbing Division (Victorian Branch), that CEPU had a significant number of members who were employed by sub-contractors to Moose, and that some of those members, when Moose became insolvent, had their employment terminated because the sub-contractor (Platypus Plumbing) had no alternative work for them. A number of other sub-contractors may be obliged to retrench employees as a result of the Moose insolvency. An affidavit by Jesse Maddison, an Industrial Officer, deposes that the directors of BTC are not registered as building practitioners, and suggests that BTC is therefore unable to be registered under the Building Act 1993 (Vic). Mr Maddison further deposes that there is a building permit with respect to the Site which had been issued to Moose, and no change of builder had been notified to the Darebin City Council.
Mr Finn made an affidavit on his own behalf. He deposes that he is the managing director of Northwest Airconditioning Commercial Pty Ltd and sets out the history of his company’s involvement in the works at the Site. He deposes as to a proposed claim against Outshine and his alleged proprietary interest in goods on the Site. He denies being engaged in any of the conduct being alleged against the defendants. He says that he was present at the Site “to observe only”. He deposes that the meeting on 12 February 2004 was a “without prejudice” meeting at a time when litigation by his company against Outshine was clearly contemplated.[1]
[1]During the course of the hearing, I ruled that the material as to what occurred at the meeting was admissible in evidence.
In the light of the foregoing, it was submitted on behalf of the plaintiffs that there were serious questions to be tried in respect of a number of actual and threatened tortious causes of action, including the following:
(a)nuisance constituted by obstruction and besetting of the Site preventing the plaintiffs from exercising their use and enjoyment of the Site and blocking access to the Site or causing persons through fear to hesitate to proceed (see Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106, 119 per Stamp J; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 761, 767 per Mason JA; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, 389 per Murphy J);
(b)interference with contractual relations by, without lawful justification, knowingly preventing or hindering the performance by BTC of its contract with Outshine and the performance by sub-contractors of their sub-contracts with BTC (see Woolley v Dunford (1972) 3 SASR 243, 266 per Wells J and Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (1995) 58 FCR 26);
(c)intimidation (see Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 761, 766 per Mason JA; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, 391 per Murphy J);
(d)conspiracy to perform unlawful acts causing loss (see Sorrell v Smith [1925] AC 700, 711-714; Williams v Hursey (1959) 103 CLR 30, 78 per Fullagar J, 122–123 per Menzies J; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, 390 per Murphy J).
Having so submitted, the plaintiffs then turned to the possible impact of s.166A[2] of the Workplace Relations Act 1996 (Cth) which, so far as material, provides as follows:
[2]I note that it was not contended by the plaintiffs that the dispute did not relate to a “boycott” within the meaning of ss.156 and 4 of the Workplace Relations Act 1996 (Cth) because, if it did not, Division 7 of the Workplace Relations Act which contains s.166A would be inapplicable.
“(1)Subject to this section, an action in tort under the law of a State…may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation, or by the officer, member or employee acting in that capacity, in contemplation or furtherance of claims that are the subject of an industrial dispute unless the Commission [has certified in writing pursuant to 166A(6)(a) or (c) or (6)(b)].
…
(3)A person who wants to bring an action in tort in respect of conduct to which subsection (1) applies may give written notice to a member of the Commission…stating that the person wants to bring the action.
…
(5)If such a notice is given, the Commission must take immediate steps to try, or to continue to try, by the exercise of its powers under this Act to stop the conduct.”
[Section 166A(6) sets out the circumstances in which the Commission must certify either that it has formed the opinion that it is not likely to be able to stop the conduct promptly or that it would cause substantial injustice to the person who gave a notice if the person were prevented from bringing the action, or that the Commission has not stopped the conduct by the end of 72 hours after the notice was given].
The plaintiffs submitted that the present application for an interlocutory injunction was not “an action in tort under the law of [Victoria]” within the meaning of s.166A of the Workplace Relations Act. In Patrick Stevedore No. 1 Pty Ltd v Maritime Union of Australia (1998) 79 IR 268, such an application for an interlocutory injunction to prevent strike action came before Beach J in the Practice Court. At page 271, Beach J said that the:
“application for injunctive relief is not an action in tort under the law of the State of Victoria. It is an application seeking that the Court exercise its equitable jurisdiction to prevent the union and certain of its officials committing the tort of intentionally interfering with the performance by members of the union of their contracts with Patricks.
If Patricks had issued a writ seeking no more than injunctive relief, I would have no hesitation in concluding that the Court had jurisdiction to entertain the present application.”
I further note that in Melbourne Ports Corporation v Maritime Union of Australia (Unreported, Supreme Court of Victoria (Practice Court), Beach J, 29 April 1998), Beach J said in relation to the impact of s.166A upon an application for an interlocutory injunction to restrain alleged unlawful picketing, inter alia:
“The application for injunctive relief by the corporation is not an action in tort under the law of the state of Victoria. It is an application that the Court exercise its equitable jurisdiction to prevent the union, certain of its officers and others, committing a trespass and nuisance and to prevent unlawful interference with the corporation’s land at Port Melbourne. The corporation is not a party to the industrial dispute between Patricks and the union. It is charged with the duty of managing, maintaining and controlling the land and is seeking to do no more than that. Its present action is not an action in tort. It is an application designed to prevent the union, its officers and other persons committing a tort or torts, namely trespass, nuisance, and the unlawful interference with its land.”
Beach J also applied the above reasoning in Tenix Defence Systems Pty Ltd v The Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [1999] VSC 40 at [35]–[37].
In Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 237 (Supreme Court of NSW), Wood CJ at CL, after considering the meaning of the expression “an action in tort”, referred with approval to the above quoted passage in the judgment of Beach J in Patrick Stevedores No. 1 Pty Ltd and concluded that the expression “action in tort” did not apply to an action solely or substantially for injunctive relief.[3]
[3]This reasoning was referred to with approval by Dunford J in Visy Board Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [1999] NSWSC 733 at [36].
On the other hand, in Keppel Prince Engineering Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (2001) 109 IR 436, 442, Goldberg J expressed the view, obiter, that “[a]lthough there have been some decisions of other courts in which this issue has been raised, namely that an application for injunctive relief by way of exercise of equitable jurisdiction does not fall within s 166A of the Act, I do not consider that those cases set out a sufficient basis upon which I should conclude at the present time that there is a serious question to be tried on this issue”. Further, in ABB Australia Pty Ltd v Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia [2002] FCA 1070 at [35], Weinberg J agreed with what was said by Goldberg J in Keppel Prince Engineering.
In Australian Die Castings Pty Ltd v AMWU [2002] VSC 328, there was an application for an interlocutory injunction to restrain picketing in which the defendants advanced the argument that the whole of the proceeding was incompetent because the bringing of the proceeding was barred by s.166A of the Workplace Relations Act until such time as a certificate had issued. They submitted that the expression “action in tort” should be understood as not only including actions for damages and specific relief in tort but also proceedings for equitable remedies which might be granted in equity’s auxiliary jurisdiction in aid of legal rights. In relation to this submission, Nettle J said at [11] – [15]:
“In his submission, s. 166A as introduced by amendments to the Act made in 1993, should be seen as informed by an intent to leave industrial disputes to be dealt with under the Workplace Relations Act during the 72 hours period, unaffected by approaches which either party might otherwise wish to make to a court of law or equity.
Alternatively, he submitted that even if the words “action in tort” are properly to be confined to an action in tort strictly so called, the effect of sub-s. 166A(1) is still to preclude the grant of injunction to restrain activity until the 72 hours has expired: because, he submitted, equity will not act in aid of legal rights if the legal rights are either barred or are unenforceable, whether by reason of statute or otherwise.
He accepted that a number of judges at first instance, to some of whose judgments I referred in the reasons which I gave on 5 August 2002 when I made the first order, have held to the contrary or at least have held that they are able to grant injunction during the 72 hour period, but he relied upon the decision of Goldberg J in Keppel Prince Engineering Pty Ltd v Automotive Food Metals Engineering Printing and Kindred Industries Union, as supporting his contention. In Keppel Goldberg J held that it was seriously arguable that s. 166A is sufficiently broad to prohibit equity granting an injunction of the kind which was sought in this proceeding, although it has to be observed that the argument which was advanced by Mr Friend does not find expression in Goldberg J's reasons for judgment.
Be that as it may, I must say for my own part that I regard Mr Friend’s submission as persuasive. A court of equity will not ordinarily lend its aid in support of legal rights if those legal rights cannot, by reason of statutory prohibition, be enforced at law.
That said, however, because of the decisions to which I have already referred, and because I think it is open to conclude that s. 166A(1) would have work to do even if it is restricted to an action in tort strictly so called, I consider that there is at least a serious question to be tried as to whether this action or its commencement was prohibited by s. 166A(1).”
In my opinion, it is seriously arguable that a proceeding or an application for an injunction, interlocutory or otherwise, to restrain the future commission of tortious conduct is not “an action in tort” within the meaning of s.166A of the Workplace Relations Act. Clearly there are serious arguments to the contrary and also an argument that equity should not lend its aid during the pendency of any statutory immunity created by s.166A. I think that there are serious questions to be tried as to this aspect, assuming of course, that there are serious factual questions to be tried as to the threatened tortious conduct.
The plaintiffs further submitted, in any event, that s.166A was inapplicable because the conduct which had occurred and that which was sought to be restrained had not been committed and would not be committed “in contemplation or furtherance of claims that are the subject of an industrial dispute”. The plaintiffs submitted that there was no dispute about matters “pertaining to the relationship between employers and employees” within the meaning of s.4 of the Workplace Relations Act because the “dispute” between the parties to this proceeding involved the plaintiffs’ refusal to comply with the defendants’ demands that the plaintiffs pay sub-contractors formerly engaged by Moose for amounts allegedly owing by them to Moose. There was no dispute relating to a relevant employer-employee relationship either between the parties or anyone else. The width of the definition of industrial dispute (see for example, Re AMWU; ex parte The Shell Company of Australia Limited (1992) 174 CLR 345, 354–5) did not encompass the facts of the present case. Notwithstanding submissions to the contrary, I am at the least satisfied that there are serious questions to be tried. It is seriously arguable that the plaintiffs’ argument as to the inapplicability of s.166A based upon the meaning of “industrial dispute” is correct.
Turning to factual matters, there is of course considerable evidence of the conduct of the defendants in blocking access to the Site. Further, there is the evidence of the wider threats made by or on behalf of the defendants at the meeting on 12 February 2004. Indeed, that very evidence was relied upon by Counsel for the first to fifth defendants as proving the existence of a “dispute” and as showing its “industrial” nature.
Counsel for the first to fifth defendants submitted that there was no or inadequate evidence of the involvement of the unions and the particular defendants associated with the unions in the “picket” of the Site, such that there was no serious issue to be tried in relation to the first to fifth defendants. However, in my opinion, the evidence which I have recited above is more than adequate to establish serious issues to be tried in relation to conduct and threatened conduct of a tortious nature by the first to fifth defendants, both in relation to the blockade of the Site and the threat to prevent BTC and its sub-contractors from completing the building on the Site. The statements allegedly made by Mr Powell, Mr Kelly and Mr Cummins as summarised above give rise to inferences which are seriously open in relation to the control of the blockade of the Site by the defendant unions. The suggestion that union members were merely present to support the activities of the sub-contractors may be open on the evidence but it is certainly not the only interpretation which is seriously open.
It was further submitted by counsel for the first to fifth defendants that there was no valid building permit because the existing building permit had “not been changed to the new builder, BTC”. However, I am not persuaded that the building permit is thereby arguably invalid. It was next submitted that BTC could not be treated as a registered builder because neither of its directors was registered as a building practitioner. The argument involved a number of provisions contained in the Building Act 1993 (Vic), but the precise argument which was being advanced was, in my view, never really made clear. In any event, it appears to be a matter which could be readily remedied if established, and does not seem to be a basis for resisting the present application.
In addition to the foregoing submissions, counsel for the sixth defendant (Mr Finn) submitted that there was no evidence that he had been engaged in any physical act constituting tortious conduct. I do not agree. There is evidence of Mr Finn’s presence at the Site on at least two occasions, and the intent with which he participated in the conduct of the other persons present at the Site is arguably clearly evidenced by what, as is deposed to on behalf of the plaintiffs, Mr Finn said at the meeting on 12 February. A similar submission was made on behalf of counsel for the eighth and ninth defendants, pointing to the limited evidence as to the presence, in particular, of Mr Britts at the Site. However, in my opinion, what was said by Mr Finn at the meeting on 12 February was said on behalf of, among others, Mr Britts and Mr Oxnam – namely, that unless all the sub-contractors were paid there would be an indefinite picket and that three sub-contractors present represented all the sub-contractors who had not been paid. In addition, there is evidence of very pointed statements made by Mr Oxnam to the same effect.
I am therefore satisfied that relevant serious questions to be tried have been established in relation to each of the defendants and, if this is so, I consider that the balance of convenience is strongly in favour of the plaintiffs in respect of the granting of an injunction to restrain the defendants from physically impeding the ingress or egress of any person or vehicle to or from the Site. The defendants could hardly be seriously harmed by such an order. The balance of convenience also favours an injunction which restrains the defendants from threatening to physically harm or otherwise abuse or intimidate persons attempting to enter or leave the Site.
For the foregoing reasons, and subject to the usual undertaking as to damages, injunctions will be granted until after the determination of this proceeding or further order restraining the defendants and each of them, whether by themselves, their servants or agents or howsoever otherwise from doing any act, including directing, counselling or procuring any act which:
(a)physically impedes or has the effect of physically impeding the ingress or egress of any person or vehicle to or from 41–47 Blake Street, Reservoir;
(b)threatens to physically harm or physically harms any person entering, leaving or being on 41–47 Blake Street, Reservoir, or any vehicle entering or leaving those premises, including any property on such vehicle or any fence gate or equipment or other goods or objects on those premises.
I am not satisfied that, at least at this stage and on the present evidence, any other interlocutory injunctions of the kind sought by the plaintiffs should be granted.
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