Re Construction, Forestry, Mining and Energy Union - [2004] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: RE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION; EX PARTE LEIGHTON CONTRACTORS PTY LTD & ANOR [2004] WASC 250

CORAM: ROBERTS-SMITH J

HEARD: 16 NOVEMBER 2004

DELIVERED : 16 NOVEMBER 2004

FILE NO/S: CIV 2476 of 2004
EX PARTE
LEIGHTON CONTRACTORS PTY LTD (ACN 00 893 667)
First Plaintiff
KUMAGAI GUMI CO LTD (ABN 74 002 810 317)
Second Plaintiff
AND
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
First Defendant
CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS
Second Defendant

Catchwords:

Injunction - Prohibitory interlocutory injunction - Mandatory interlocutory injunction - Unlawful interference with contractual relations - Major rail construction project - Union demands for increased rates of payment for night work - Work bans - Whether actionable - Substantial financial loss as result of continuing delay of works - Damages - Serious question to be tried - Balance of convenience - Turns on own facts

Legislation:

Nil

Result:

Application for interlocutory injunctions granted

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr K J Mony de Kerloy & Ms E Athanasiou
Second Plaintiff            :     Mr K J Mony de Kerloy & Ms E Athanasiou
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

First Plaintiff                :     Freehills
Second Plaintiff            :     Freehills
First Defendant             :     No appearance
Second Defendant         :     No appearance

Case(s) referred to in judgment(s):

DC Thomson & Co Ltd v Deakin [1952] Ch 646
Independent Corporate Services Ltd v Stevens [2002] WASC 280
Merkur Island Shipping Corporation v Laughton (The Hoegh Apapa) [1983] 2 AC 570
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1

Case(s) also cited:

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637
Bullock v Federated Furnishing Trades Society of Australia (No 1) (1985) 5 FCR 464
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Sanders v Snell (1998) 196 CLR 329

ROBERTS-SMITH J: This is an application by way of chamber summons dated today, 16 November 2004. It seeks a number of orders which I will not presently recite in full, but essentially they are orders preventing the defendants (which I will describe as "the Unions") their servants or agents from interfering with the business of the plaintiffs or interfering directly or indirectly with the due performance of various contracts involved in the construction of the Metro CityRail Project.
The substantive action was likewise commenced today by way of a writ of summons dated today, seeking permanent injunctions of the same type.
The application is supported by the affidavit of Anthony Gerard Cariss dated 16 November 2004. There is an undertaking as to damages which has been filed by the plaintiffs.
The substantive action and hence this chamber summons, concerns the alleged deliberate prevention by the defendants of the due performance by the plaintiffs of the contract concerning the Metro CityRail Project.
That is a major project,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASC 250
Decision Date: 16 NOVEMBER 2004

CaseChat Overview and Summary

The case involves the Construction, Forestry, Mining and Energy Union (CFMEU) and several construction companies, with the dispute concerning the legality of certain union actions that allegedly interfered with contractual relations, resulting in significant financial losses. The matter was heard in the Federal Court of Australia, where the plaintiffs sought an interlocutory injunction to prevent the unions from implementing work bans that caused delays in a major rail construction project. The legal issues at hand were whether the union's demands for increased rates of payment for night work and subsequent work bans were actionable and whether the balance of convenience favoured the plaintiffs in seeking injunctive relief.

The court examined the potential substantial financial loss due to the delays caused by the work bans and whether the plaintiffs had established a serious question to be tried. It also considered the balance of convenience, weighing the detriment and disadvantage to the plaintiffs against the potential adverse effects on the defendants. The court noted that the effect of the conduct on the public interest was a relevant factor to consider, referencing the decision in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia. After evaluating the evidence and arguments presented, the court found that the balance of convenience favoured the plaintiffs, as they were likely to suffer significant harm from the continuing delays and work bans, while the defendants were unlikely to be materially adversely affected by the injunction.

Based on these findings, the court granted the plaintiffs' application for an interlocutory injunction. It adopted the draft orders dated 16 November 2004, which had been handed up, as the terms of the injunction. The court's decision was grounded in the plaintiffs' demonstration of the necessary circumstances for injunctive relief and the overall balance of convenience in favour of preventing the union's actions that interfered with the contractual relations of the plaintiffs, their employees, and subcontractors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

So far as the balance of convenience is concerned, I am satisfied that the balance is all the plaintiffs' way. There is significant detriment and disadvantage to the plaintiffs from the delay, and not only to them I may say, but also to the public interest (and that includes the subcontractors). The question of the effect of conduct on the public interest is one which in my view it is appropriate to take into account: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 42. Conversely, it seems to me there is significant merit in the plaintiffs' submission that the defendants are unlikely to be materially adversely affected should they be enjoined by injunction from interfering in the way in which the evidence indicates, with the contractual relations of the plaintiffs, the employees of the plaintiffs and their subcontractors. For these reasons it seems to me that the applicant has established the necessary circumstances which would lead to the grant of the injunction and I will accordingly make that order. I am prepared to make orders in terms of the draft orders dated 16 November 2004 which have been handed up.