consideration of application for interim injunction
10 The application for an interim injunction is made by the Commissioner pursuant to s 39 of the Act.
11 Section 39(1) provides that:
(1) If, on application by the ABC Commissioner or any other person, an appropriate court is satisfied that unlawful industrial action is:
(a) occurring; or
(b) threatened, impending or probable;
then the court may grant an injunction in such terms as the court considers appropriate.
12 Section 39(2) permits the Court to grant an "interim injunction" pending determination of an application under subs (1).
13 Section 39(3) makes it plain that the power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:
(a) whether or not it appears to the court that the defendant intends to engage again, or to continue to engage, in conduct of that kind; and
(b) whether or not the defendant has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the defendant engages in conduct of that kind.
14 In my view it is clear that an injunction, including an interim injunction of the type here sought, is a statutory injunction that may only be granted under s 39 on the application of the Commissioner if unlawful industrial action is either occurring or threatened, impending or probable.
15 While the Court may grant an injunction whether or not the circumstances described in s 39(3)(a), (b) or (c) exist, the circumstances in s 39(3) are not of themselves sources of power that justify the grant of an injunction. Rather, they empower the Court to grant an injunction in circumstances where the usual principles governing the grant of injunctions at equity might suggest an injunction should not be granted: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (Cardile). For example, whereas at equity the grant of a quia timet injunction, to prevent threatened harm, might on some tests only be granted if harm is imminent, s 39(3) modifies any such requirement. As to the circumstances in which a quia timet injunction might go, see Spry, The Principles of Equitable Remedies, (7th ed, Lawbook Co., 2007) pp 377 - 382. In other words, the touchstone for the Court's power to grant an injunction under s 39 is satisfaction that unlawful industrial action is occurring or threatened, impending or probable as set out in s 39(1).
16 The expression "unlawful industrial action", which is also action prohibited by s 38 and the subject of a Grade A civil penalty, is defined by s 37 of the Act as follows:
Building industrial action is unlawful industrial action if:
(a) the action is industrially‑motivated; and
(b) the action is constitutionally‑connected action; and
(c) the action is not excluded action.
(emphasis in original)
17 To win an interlocutory injunction under the general law, it is well understood that the applicant needs to establish a serious case to go to trial and address the question of where the balance of convenience or justice lies in the circumstances of the case. I consider these factors are also relevant to the grant of a statutory interim injunction under the Act. Under the general law, the adequacy of a remedy in damages if an injunction is not granted, is also taken into account, where rights may be interfered with. Here, the Commissioner is not a person who can claim damages under the Act, but the Commissioner can seek compensation for others (such as Probuild) and pecuniary penalties.
18 In Australian Securities and Investments Commission v Mauer‑Swisse Securities Limited (2002) 42 ACSR 605, Palmer J reflected on the power of a court to issue an interim injunction pursuant to s 1324(4) of the Corporations Act 2001 (Cth) (CA). At [16] Palmer J expressed agreement with the earlier observations made by Austin J in Australian Securities and Investments Commission v Parkes (2001) 38 ACSR 355 (Parkes) and Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 (Sweeney) to the effect that the source of the injunction power in s 1324 is statutory, and so additional to and not merely ancillary to the inherent equitable jurisdiction of the Supreme Court of New South Wales to grant injunctions, so that discretionary factors influencing the exercise of that power were to be found mainly, if not entirely, within the framework of the statute and its associated legislation. Palmer J at [36] summarised the principles that he drew from the authorities:
· the jurisdiction which the Court exercises under CA, s 1324 is a statutory jurisdiction, not the Court's traditional equity jurisdiction;
· parliament has made it increasingly clear by successive statutory enactments that the Court, in exercising its statutory jurisdiction under s 1324, is not to be confined by the considerations which would be applicable if it were exercising its traditional equity jurisdiction;
· among the considerations which the Court must take into account in an application for an injunction under CA s 1324 are the wider issues referred to by Austin J in Sweeney and Parkes and other authorities that may be gathered under the broad question whether the injunction would have some utility or would serve some purpose within the contemplation of the CA;
· these considerations are to be taken into account regardless of whether the application is for a permanent injunction or an interim injunction under the CA;
· where an application is made under s 1324(4) by ASIC rather than a private litigant, the Court is more likely to give greater weight to the broader question whether the injunction would serve a purpose within the contemplation of the CA;
· where there is an appreciable - that is, not fanciful - risk of particular future contraventions of the CA by the defendant, it would serve a purpose within the contemplation of the CA that the Court not only grant a permanent injunction, but in an appropriate case, an interim injunction restraining such conduct;
· although the question whether there is a serious question to be tried and where the balance of convenience lies will not circumscribe the Court's consideration in an application for an interim injunction under s 1324(4) of the CA, the interests of justice will always require that those questions be examined carefully when restrictions are sought to be imposed before the case has been properly examined by the Court, even where the protection of the public is said to be involved;
· the balance of convenience will be viewed differently according to whether the applicant, under s 1324(4) of the CA is ASIC or a private litigant. Where ASIC is acting to protect the public interest, the absence of an undertaking as to damages, exempted by s 1324(8), will usually be of little consequence.
19 In Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd (2003) 48 ACSR 249 at 255, Barrett J at [24] noted there may be some debate about Palmer J's previous observations in relation to the injunctive power, but at [25] his Honour observed that:
It seems to me that the statutory nature of the s 1324(4) jurisdiction and the words of the legislation ('Where in the opinion of the Court it is desirable to do so'), mean that the court is not constrained by the traditional methods of equity. But there can be no doubt that those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory role ASIC plays and the wider question of what is 'desirable' in the statutory context.
20 It seems to me that these two authorities in particular, when read in the light of the observations of the joint judgment in Cardile referred to above, provide appropriate guidance to the exercise of power of the Court under s 39 of the Act to grant an injunction, including an interim injunction.
21 In my view, the substantive power to grant an injunction under s 39 of the Act, and the general design of s 39 reflects the type of statutory injunction power that is found in s 1324 of the CA. The wording of s 39(2) of the Act, whereby "if, in the opinion of the Court it is desirable to do so" the Court may grant an interim injunction, is quite similar to that used in the CA for a similar purpose. The removal of constraints that might govern the grant of an interim or interlocutory injunction at equity by s 39(3) again emphasises the breadth, but also the special nature of the statutory injunction power created by s 39 of the Act. Further, as in the case of the CA, the statutory injunction under the Act may be sought by both a government agency, the Commissioner, as well as "any other person". The Commissioner plainly has special functions under the Act, as set out in s 10 of the Act. In that regard the functions of the Commissioner have a particular public purpose that may generally be equated with that of ASIC under the CA. By s 76 of the Act the Commissioner is not required to give an undertaking as to damages, if an applicant is in court proceedings under s 39 (or s 49) of the Act.
22 Applying these considerations generally, questions arise concerning how strong or weak a case is put forward, as well as issues of prejudice, financial and otherwise to the parties if an interim injunction is not granted and whether compensatory orders will or might be an adequate remedy. It also must be borne in mind that the grant of an injunction at any time and particularly an interim injunction, is a serious step for a court to take, and that is because it has the real potential to interfere with the existing rights of individuals or organisations on both sides of a dispute. One only has to have regard to the breadth of the proposed interim injunctions that are asked for in this case to appreciate this observation.
23 So far as the fact finding exercise in relation to the present application for interim relief is concerned, there is evidence before the Court that could lead to a finding that the CFMEU through Mr McDonald has engaged in unlawful industrial action on 20 and 21 August 2009. It is not necessary for the Court to make any definitive findings at this stage of the proceedings, but the conduct of Mr McDonald apparently on behalf of the CFMEU in encouraging workers to leave the project site on Thursday 20 August 2009 and not return until Monday 24 August 2009, would appear to constitute "building industrial action" as defined by s 36(1)(d) of the Act. Given the evidence at this point that the blockage in the amenities was being or had been repaired, which was acknowledged by Mr McDonald at his meeting with Mr Wolf, may lead to the conclusion that the action was not based on a reasonable concern by employees about an imminent risk to their health or safety, which is one of the circumstances which will make employees actions fall outside the expression of building industrial action under s 36(1)(g)(i) of the Act. The action, on the face of it, appears to be "constitutionally‑connected action" within the definition of that expression provided by s 36(1)(a). On the face of the materials put forward at this stage, it may also be said that the action taken is "industrially‑motivated" within the definition provided by s 36(1)(d) in that it is action that includes the purpose of disrupting the performance of work. Additionally there is no material before the Court presently to suggest that the action is "excluded action" as that expression is defined by s 36(1) of the Act. In summary, the action complained of would appear to satisfy the definition of unlawful industrial action provided by s 37 of the Act.
24 The evidence before the Court importantly shows that at about 2pm today, Friday 21 August 2009, an order was made by Fair Work Australia requiring the CFMEU and employees to stop industrial action and not engage in industrial action. The CFMEU was to advise all its delegates of the order and that the order requires employees to stop and not engage in industrial action. The evidence put on, on behalf of the CFMEU, to which I refer further below, suggests that the CFMEU is respecting and complying with the Fair Work Australia order. Further, Mr Wolf on behalf of Probuild had no particular reason to suggest that the CFMEU and its members engaged on the project site would not respect the orders made and return to work forthwith.
25 In these circumstances, there is for me a real question whether the unlawful industrial action identified by the Commissioner in this case, is still "occurring", even if it was occurring at material times on Thursday 20 August 2009 and the morning of Friday 21 August 2009. There is also a question, in those circumstances, whether it can be said that any such industrial action is threatened, impending or improbable. I entertain real doubt, in light of the Fair Work Australia order and the CFMEU response to it, whether such industrial action is occurring; certainly I consider it is no longer threatened, impending or probable.
26 If the facts were different in this case and there had not been the intervening event of the order made on Friday 21 August 2009 at about 2pm, then I think this would be quite a different case. I am concerned, however, as I indicated in the course of argument, that the statutory circumstances about which I have to be satisfied under s 39(1) of the Act have not been made out. I am doubtful, although I do not finally base my ruling on this point, that there is an allegedly unlawful industrial action occurring. But even if one assumes that there is, I think it is very difficult to say that it is threatened, impending or probable in light of the order made by Fair Work Australia this afternoon and the expressed commitment of the CFMEU to comply with it.
27 I understand the submissions that senior counsel makes on behalf of the Commissioner, that the CFMEU's statement in Mr Pallot's affidavit is a broad statement. I think the practical point is that the CFMEU's statement of intention to comply with the orders of Fair Work Australia is probably still finding its way through to the workers, but its' statement of intention is there, it is unequivocal. If the facts turn out to show that it was disingenuous, then that would be an important consequence, but as it stands, I consider the conditions or circumstances for the exercise of the statutory injunction power, under s 39, if they are arguable, are not at the strong end of the scale.
28 When it comes to considering the balance of convenience, or the justice of the case, and the prejudice that might seem to exist if the unlawful industrial action is still occurring, again the order of Fair Work Australia seems to me, in the circumstances of this case, to be a very important intervening factor. That order has been made, and although it is not exactly in the same terms as the terms of the interim injunction sought, it is to the same effect, in substance. It is appropriate to refer to the terms of para 3. It is headed Industrial Action Must Stop. Paragraph 3.1 says:
The Union and the employees bound by this order must stop and not engage in industrial action.
It is very blunt. Paragraph 3.2 adds:
The Union shall advise all its delegates working on the One40 William Project Site, at 140 William Street, Perth that this order requires the employees bound to stop and not engage in industrial action.
29 The union evidence, by virtue of the affidavit of Mr Graham Pallot, which has been read and received into evidence today, shows that the CFMEU's intention is to comply with the order and that Mr Pallot has spoken with the organisers who have responsibility for this project site and confirmed with them that advice to members is that each should comply with the order. I appreciate that there might be some fine wording in all of that, but I consider in all the circumstances, that the fact that the CFMEU unreservedly expresses its intention to comply with the order militates against the grant of an interim injunction.
30 It is also relevant to note that, if the Commissioner can make out a case on the main application, it is possible that compensation and pecuniary penalties may be imposed on the respondents including in favour of Probuild, the most directly affected party. This, in the present circumstances, would suggest an adequate, alternative remedy to an interim injunction.
31 Taking all these factors into account, in my discretion I would refuse to grant an interim injunction.