Super A-Mart Pty Ltd v NUW and Ors
[2014] VSC 130
•14 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
S CI 2014 1131
| SUPER A-MART PTY LTD (ACN 009 810 324) | Plaintiff | |
| v | ||
| NATIONAL UNION OF WORKERS & ORS | Defendant | |
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JUDGE: | BONGIORNO JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2014 | |
DATE OF JUDGMENT: | 14 March 2014 | |
CASE MAY BE CITED AS: | Super A-Mart Pty Ltd v NUW & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 130 | |
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PRACTICE AND PROCEDURE – Representative proceeding - RSC O.18 – No point of principle.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Wheelahan with Ms K L Burgess | Reid Commercial Law |
| For the Defendant | Mr J Fetter | Holding Redlich |
HIS HONOUR:
On 13 March 2014, the plaintiff, Super A‑Mart Pty Ltd, a national furniture retailer, filed a writ in this Court naming the National Union of Workers and three named persons as defendants.
The first defendant, the NUW, was sued on its own behalf and in a representative capacity as representing all persons who were, on 28 February 2014, 7 March 2014, 9‑13 March 2014 inclusive, or are now or have at any time since 13 March 2014, been present at the picket lines at the premises occupied by the plaintiff and located at Warehouse 1 and Warehouse 2, 57‑61 Freight Drive, Somerton which are collectively referred to as the Somerton Distribution Centre.
The plaintiff claims injunctions, damages and other relief in respect of what it asserts were illegal picketing activities carried out by the union, and other people supporting it, at the plaintiff's at the Somerton Distribution Centre. It also sought an order, RSC r 18.03 that the first defendant be appointed to represent an unknown number of unidentified persons who took part in the picket on the dates referred to.
By summons issued contemporaneously with the writ, the plaintiff sought the representative order referred to and interlocutory injunctions designed to terminate the picket and permit the plaintiff to resume its ordinary trading activities. It is this summons which is now before the Court.
The plaintiff relied on three affidavits each sworn on 13 March 2014, two by its executives and one by its solicitor. None of the evidence provided by those affidavits was contested and no affidavit material was filed by the defendant. Nor was any application made to cross‑examine any of the deponents of the plaintiff's affidavits. In fact no material was put before the Court by the defendants.
An affidavit by Peter Cameron Scott, the group general manager supply chain of the plaintiff, deposed to the plaintiff's legal entitlement to carry on its business at the Somerton Distribution Centre and to observations he made over a number of days in February and March this year up to yesterday, 13 March. He also deposed to the existence and progress of an industrial dispute which is ongoing between the plaintiff and the first defendant over the negotiation of a new enterprise agreement between the plaintiff and its employees. This dispute, in the course of which Fair Work Australia had ordered a protected action ballot, had been in existence for some time. That ballot subsequently endorsed certain protected industrial action by employees of the plaintiff. Picketing the work place was not any part of the protected industrial action; nor could it have been.
Mr Scott deposed to observations made by him on 28 February, 7 March, 9 March, 10 March, 11 March and 13 March. None of those observations were contested by the defendant. Many of them were corroborated by video footage. They may be briefly, if somewhat inadequately, summarised as follows.
On each of the days to which Mr Scott referred, a number of people, including, often, an official or officials of the NUW, placed themselves across various of the four gate ways at the plaintiff's premises thus preventing them access to the premises by delivery vehicles or employees, who were said by Mr Scott to be prepared to work. This activity was often accompanied by NUW flags, signs to the effect that an NUW official picket lined existed and should not be crossed, the erection of a gazebo bearing NUW insignia and the provision of a portaloo temporary toilet. The same persons often chanted together slogans of various kinds supporting their position.
Access to the plaintiff's warehouse was denied to Mr Scott and others on a number of occasions on which he tried to obtain entry. There were, on some occasions at least, cars parked across driveways at the warehouse gates, further preventing the entrance of vehicles.
Nothing in Mr Scott's affidavit suggests that there was any violence or threats of violence perpetrated or made by any of the persons to whom I have referred. Indeed he acknowledged that although he was refused access, as were others, the persons present insisted that they were engaged in a "peaceful protest" which, in a sense, they were.
Mr Scott was unable to identify all the people who took part in the activities described although on at least 13 March, the three defendants in this case, other than the union, were present and recognised by Mr Scott as union officials. On that occasion there were approximately 30 people present in all. None of the union officials recognised by Mr Scott accepted any responsibility for the activities being undertaken.
The second affidavit relied upon was sworn by Rick Brewer, the plaintiff's operations manager. He detailed similar observations of those of Mr Scott on 12 and 13 March.
The third affidavit by the plaintiff's solicitor deposed to a number of items of correspondence. The only one of significance for present purposes being a letter to him dated 12 March, from the union to the plaintiff's solicitors, the operative part of which was as follows:
Without admission to any wrongdoing or liability as alleged in your letter, the NUW has instructed its officials, agents and employees not to prevent, hinder or interfere with any person having free access to or free egress from the site as defined in your letter. We trust this addresses your concerns about the NUW's involvement with the assembly of persons outside the site.
On the basis of that material, the plaintiff now seeks the relief sought on the summons.
The Representative Order
The purpose of RSC O 18 is to facilitate the administration of justice by enabling a party to obtain a binding determination on behalf of or against a number of people in a single action rather than having to undertake separate actions: Carnie v Esanda Finance Corporation Limited.[1]
[1] (1995) 182 CLR 398, 404.
The only determinant of the appropriateness of a representative order are that there are numerous persons and that they have the same interest in the proceeding. It is a simple rule, capable of meeting many situations: Carnie.
Mr Fetter, of counsel for the union, argued strongly that the difficulties in the way of identifying the parties to be represented in this case meant that the jurisdiction of the Court to make the order was lacking. I disagree. It is not identification that is vital, it is commonality of interest. Here the union lent its authority to the activities of the picketers by permitting its banners, gazebos and paraphernalia to be associated with the picket. Indeed it admitted as much in the letter to which I have referred. That it had a common purpose with them is the only inference open from its failure to dispute any of the evidence put forward by the plaintiff. It could have denied that it sanctioned the picket. It could have denied that the picket has used its paraphernalia with its approval and consent. It did neither.
I am satisfied that the first defendant had a common interest with those persons now described in the draft order proffered by the plaintiff this morning.
Mr Fetter also argued that there was no common legal or factual questions affected both the union and the picketers, some of whom at least may not be members of the union.
Again, I reject this argument. The activities of the picketers which included, on the plaintiff's case, the union are the alleged cause of the plaintiff's losses. The question as to whether and to what extent the activities had caused the plaintiff's losses will be a question affecting all of those involved; the union and those it will be representing. Nor is the difficulty of identification a bar to a representative order where commonality of interest exists. RSC r 18.04(2) provides ample protection against unjust enforcement of any order obtained by requiring leave of the Court as a prerequisite to enforcement of any judgment.
Mr Fetter also raised discretionary matters as being adverse to the making of an order. None of them is persuasive.
There should be an order pursuant to Rule 18.03(1) broadly in terms of the draft order submitted by the plaintiff's counsel.
The injunction
Mr Fetter resisted the plaintiff's application for the injunction which it seeks but instead proffered an undertaking to similar effect, if no representative order was made.
Having regard to what I have already said, the proffered undertaking would appear to be irrelevant. However, having regard to the letter from the union to the plaintiff of 12 March and the subsequent events of 13 March which demonstrate that the picket was still being applied with NUW support and in the presence, if not actual participation, of union officials, it would not be appropriate to refuse an injunction on the basis of the proffered undertaking. There is ample uncontradicted evidence that there was and may still be an illegal picket being applied at the plaintiff's premises.
There should be an injunction to prevent its continuance so that the plaintiff can operate its business. Its workers, including union members, can continue to work and the union and the plaintiff can continue to try and resolve the outstanding industrial issues between them without the distraction of extraneous activity which is benefitting no‑one.
I will hear counsel further on the question of notification of the making of those orders.
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