Qube Ports Pty Ltd v Maritime Union of Australia

[2013] VSC 396

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

S CI 2013 03851

QUBE PORTS PTY LTD (ABN 46 123 021 492)	Plaintiff
v
MARITIME UNION OF AUSTRALIA & ORS	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2013
DATE OF JUDGMENT:	1 August 2013
CASE MAY BE CITED AS:	Qube Ports Pty Ltd v Maritime Union of Australia
MEDIUM NEUTRAL CITATION:	[2013] VSC 396

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INJUNCTION – Interlocutory injunction – Industrial dispute – Plaintiff seeks an interlocutory injunction restraining the defendants from obstructing the access and egress of persons and vehicles onto Station Pier at Port Melbourne – Sufficient evidence to be satisfied that there is a serious issue to be tried – Balance of convenience – Order 18 representative order previously made – Just and fair in the circumstances to make an interlocutory order which restrains the obstruction of vehicles, cargo and people through the freight entrance of Station Pier.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr F Parry SC with Mr A Bell	Herbert Smith Freehills
For the First and Second Defendants	Mr E White	Maurice Blackburn
No appearance for or on behalf of the Third and Fourth Defendants

HIS HONOUR:

1. In this matter the plaintiff seeks an interlocutory injunction restraining the defendants until the trial of this action from obstructing the access and egress of persons and vehicles onto Station Pier, Port Melbourne.

1. The injunctions sought are in the same form as the interim injunctions granted by me last Monday 29 July 2013.  In addition to the affidavits before me on the last occasion, Mr Parry SC with whom Mr Bell appears for the plaintiff has relied on a number of further affidavits sworn today as to recent events as well as affidavits of service or attempted service.

1. In substance, when the Spirit of Tasmania docked on Wednesday 31 July 2013, some trucks were allowed through the picket whilst many others were stopped.  The Spirit of Tasmania departed partially loaded.  The Spirit of Tasmania is next expected to return to Melbourne at 6 am on Friday 2 August 2013. 

1. Mr White who appeared for the first and second defendants submitted that there was insufficient evidence for me to conclude that the Maritime Union of Australia (“the union”) and Mr Bracken were involved in the picket.  He submitted that it had not been sufficiently shown that the union was engaged in more than its proper function as a union acting to protect its members who had lost their jobs.  He also submitted that there was no actual or ostensible authority that had been shown to be granted by the union to establish a picket of the type established at Station Pier and that no inferences should be drawn from the involvement of officials of the union in the employment dispute. 

1. He referred to s 355 of the Fair Work Act2009 (Cth) as justifying the absence of any affidavits from officers of the union and the second defendant to the effect that they were not involved in the direction of the picket or were not instrumental in organising or supporting the picket.

1. I am satisfied on the basis of the affidavit evidence that I have that there is a serious issue to be tried concerning the claims made by the plaintiff that the defendants have organised or been instrumental in the blockage by the picket of truck movements on and off Station Pier.

1. The background for the picket is the existence of an industrial dispute as to termination of employees on 27 May 2013 and 7 June 2013.  Union officers including the second defendant have been closely involved in negotiations concerning the terminated employees.  The picket commenced at Station Pier on 14 June 2013 and has continued since.  The picket was lifted following communication of a reinstatement decision to the union albeit one subject to suspension and further investigations.  When it became apparent that the termination dispute was not resolved, the picket resumed on Friday 26 July 2013 and again on 28 July 2013.

1. The affidavits before me show significant involvement of officials and members of the union in what is occurring.  In addition, there is no other apparent cause of the picket other than to support the industrial action presently being undertaken to obtain the reinstatement of the employees.

1. I have sufficient evidence before me on an interlocutory basis to be satisfied that there is a serious issue to be tried that the picket is in reality part of an industrial campaign by the union to gain the reinstatement of the employees.  I note the absence of affidavits from the defendants.  The result is that I only have the affidavit material from the plaintiff on which to reach this conclusion.

1. Mr White did not, and indeed could not, contend that the balance of convenience did not favour the grant of an injunction.  It is plain that the picket is having serious impact on the movement of freight and goods on the Spirit of Tasmania between Melbourne and Tasmania.  This is an outcome of real concern as there are substantial losses being occasioned to third parties including businesses both large and small and as well as significant impacts on the general movement of freight and the supply of goods and on the plaintiff itself.

1. On the last occasion I made a representative order appointing the fourth defendant pursuant to Rule 18.03(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) as representing all those persons who had at any time between 26 July 2013 and 29 July 2013 been present at the picket line at the freight entrance gate of Station Pier. I did so subject to further order because the application was made on short notice and opposing counsel had not had the opportunity of preparing any argument to the contrary.

1. Rule 18.03(1) requires that the persons represented have the same interest. Mr Parry SC contended that the represented parties did have the same interest, namely to obstruct ingress and egress through the freight entrance to Station Pier and to apply pressure to obtain the reinstatement of the terminated employees. He referred to the protesters’ repeated chanting of the words, “No freight in, no freight out”, as illustrative of a common purpose.

1. Mr White referred me to a number of authorities dealing with the question that the represented persons must have the same interest.  In Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis,[1] Mason P (as he then was), with whom Ipp and McColl JJA agreed, referred to the same interest as existing in legal proceedings when the parties to be represented have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings.

   [1](2007) 70 NSWLR 565.

1. Once again, the only evidence I have on which to decide this question is from the plaintiff.  There is no material from the defendants.  I am of the view at least for interlocutory purposes on the material that I have first that the persons sought to be represented form a sufficiently identifiable class, namely the persons present on the picket at the freight entrance to Station Pier over the period from 26 July to 29 July 2013, secondly that the person selected is for present purposes sufficiently representative of the class, and thirdly, that the persons represented have the same interest in common having regard to the issues in this case and the facts in dispute.  In particular they have a common interest in this proceeding as to whether their conduct is lawful, whether they should be restrained and whether damages are or might be payable by them having regard to the losses occasioned by the picket’s activities.

1. On the material before me, and again in the absence of defendants’ affidavits, I do not propose to disturb the representative order made on the last occasion.

1. In all of the circumstances I am satisfied that it is just and fair to make an interlocutory order which will restrain the obstruction of vehicles, cargo and people through the freight entrance of Station Pier.  As I said on the last occasion, the injunction does not stop protests or demonstrations, but it does restrain on an interlocutory basis unlawful interference of the passage of freight and vehicles and the commission of public or private nuisance.

1. In the circumstances, I now turn to the minute of order that was earlier provided, and on the basis of the giving of the undertaking set out in “Other matters” I will sign an order later this afternoon.

1. The substance of the order will be, and this is in the form that was earlier provided and similar in form to the previous injunction that I ordered, that:

1.   Until the trial of this proceeding or any further order, the Maritime Union of Australia (whether by itself, its officers, servants, agents or howsoever otherwise), Kevin Bracken, Richard Lunt, Torren McMaster and all those person who have, at any time between 26 July 2013 and 29 July 2013 (inclusive), been present at the picket line at the freight entrance gate of the premises known as Station Pier, Waterfront Place, at Port Melbourne, in the State of Victoria (“the Station Pier Site”) be restrained from:

a)   preventing, hindering or interfering with free access and free egress of persons and/or vehicles to or from the Station Pier Site;

b)     standing in line or in any other formation on any roadway, lane or footpath leading to or away from the Station Pier Site so as to obstruct the movement of any person or vehicle onto or off the Station Pier Site; and

c)   causing, inducing, procuring or inciting any person to do or attempt to do any of the things restrained by subparagraphs (a) or (b) of this order.

1. Having regard to the affidavits that have been filed as to attempted service, I will also make the orders set out in paragraphs 2 and 3 of the draft as to service of a sealed copy of the order, and the other documents.  I will additionally make an order in the form of Order 4 made on the last occasion.

1. I will grant liberty to apply, and subject to any argument, I will reserve costs. The order will be endorsed with the notice required under the Rules to the effect that the defendants and each of the representees should take notice that they are liable to imprisonment or sequestration of property if they fail to comply with this order.