Visy Board Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, New South Wales Branch

[1999] NSWSC 726

CITATION:	VISY BOARD PTY LTD & ANOR v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH & ORS [1999] NSWSC 726
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	11677/99
HEARING DATE(S):	14 July 1999
JUDGMENT DATE:	14 July 1999
PARTIES :	Visy Board Pty Ltd (First Plaintiff) Visy Paper Pty Ltd (Second Plaintiff) Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union, New South Wales Branch (First Defendant) Brian Henderson (Second Defendant) Basil King (Third Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	DP Robinson (Plaintiffs) S Crawshaw SC with P Winters (First, Second & Third Defendants)
SOLICITORS:	Blake Dawson Waldron (Plaintiffs) Turner Freeman (First, Second & Third Defendants)
CATCHWORDS:	INJUNCTION - Interlocutory - Industrial Dispute - Activity of Picketers.
ACTS CITED:	Industrial Relations Act 1996 (NSW) Workplace Relations Act 1996 (Cth)
DECISION:	See para 11.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
WEDNESDAY 14 JULY 1999
11677/99 - VISY BOARD PTY LTD & ANOR v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION, NEW SOUTH WALES BRANCH & ORS
JUDGMENT
(On application for continuation of injunction - see p 9 transcript )

1    HIS HONOUR: This is an application for continuation of the injunction I granted ex parte yesterday to prevent the continuation of allegedly tortious and criminal acts outside the premises of the plaintiffs. The activities of which evidence has been given are, it would appear, in association with what is colloquially known as a "picket line" outside the plaintiffs' premises in furtherance of an industrial dispute relating to wages and conditions. 2    The evidence at the interlocutory stage discloses activities involving public and private nuisance, intimidation, unlawful interference with contractual relations, interference with trade and business by unlawful means, assault and malicious damage to property. 3    I will not detail all the evidence but Mr Crawshaw SC, who appears on behalf of the first, second and third defendants submits that the injunction should not be continued against his clients for a number of reasons. 4    Firstly, he submits that the first defendant, which is the New South Wales branch of the union and is a body registered under the Industrial Relations Act 1996 (NSW), is a different corporate entity to the union or industrial organisation which is involved in the industrial dispute and which is the federal organisation, a body registered under the Workplace Relations Act 1996 of the Commonwealth. 5    This may or may not be a substantial and valid point, but it is not appropriate for detailed consideration at this stage of the proceedings. I notice that the letters, Exhibit H and Exhibit A, are both signed by a person who designates himself as the "NSW Assistant State Secretary". I appreciate that that designation may be appropriate to an office holder in the federal organisation, and it does not necessarily mean that he is an office holder of the New South Wales Branch. But, as I say, it may be that there is no real difference in practical terms in the common law, as opposed to the industrial relations sense, between the two organisations. This matter may require further consideration at a later stage, or it may be necessary or appropriate to substitute a different first plaintiff. 6    Mr Crawshaw's next submission is that there is no evidence of sufficient weight to link the first, second or third defendants with the specific tortious or criminal acts which have been the subject of evidence. It is true that neither the second nor third defendants have been identified as engaging in any of the specific tortious acts, but there is ample evidence from which an inference can in my opinion be drawn that the whole activity outside the plaintiffs' premises are the activities of a group of persons acting together. I won't use the term "in combination" at this stage, but certainly acting together for a common purpose and in addition to that, there is specific evidence of Messrs Henderson and King being on the premises and in this regard I refer to the affidavit of Mr Brotherson, particularly at paragraph 12, and there is also the affidavit of Mr Diggs and I refer to paragraph 4 and also, in particular, to paragraph 7(h) which details a meeting at which Messrs Henderson and King were present on behalf of the Union at which a number of threats were made by other defendants also present on behalf of the Union, and it does not appear that Messrs King or Henderson took any steps to contradict what was said by other defendants or to calm the situation down in any way. 7    There is also the evidence in paragraphs 7 and 8 of Mr Brotherson's affidavit and paragraph 4 of Mr Diggs' affidavit which links the Union to the activity taking place, to say nothing of the sign to which reference is made in the evidence. 8    I am therefore satisfied that there is evidence of sufficient weight to link the first, second and third defendants with the specific acts which have been the subject of evidence. 9    Mr Crawshaw submits that I should refuse the injunction in the exercise of my discretion because of the application that has been made to the Australian Industrial Relations Commission, a copy of which is Exhibit 1. This application was made yesterday and I was not informed of it at the time that the application was made for the ex parte injunction. The fact that I was not informed of it concerns me, but there may be an explanation for that and I consider the plaintiff should have an opportunity to furnish such explanation as may be available. 10    That application is directed to the strike action, whatever that might encompass, and does not specifically refer to the allegedly tortious or criminal acts involved. 11    In those circumstances I do not consider it appropriate at this stage to exercise my discretion against the continuation of the injunction. The order I make is that the injunctions granted yesterday are extended to 5 pm tomorrow, 15 July 1999. 12    Notice of continuation of the injunction to all defendants other than the first, second and third is to be given as in paragraph 8 of the order made on 13 July 1999.

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Last Modified: 07/21/1999