Australian Die Castings Pty Ltd v AMWU [2002] VSC 328

5. At that time, I was told by Ms O'Brien, who appeared for the plaintiffs, that application had been made under s. 166A of the Workplace Relations Act 1996 for a certificate pursuant to sub-s. 166A(1) but that it was thought that it would be some time, if not days, before the outcome of that application was known.

8. I was also told by Ms O'Brien that it was not expected that there would be any appearance on behalf of the defendants because there had been delay caused by a computer malfunction in the preparation of the plaintiffs' documents and thus, even as the application was being made, the documents had not been served.

11. Rightly or wrongly - it is unnecessary for me at present to decide - I derived the impression from what Ms O'Brien told me that there had not been a reasonable opportunity to notify the defendants that it was proposed to make the application ex parte to me that morning. Rightly or wrongly, I concluded that the plaintiffs were not in touch with the defendants or their representatives at that time.

14. Had I known the position to be as I now understand it, which is to say that there were continuing communications between the plaintiffs' representatives and the defendants' representatives, I would have required that at least informal notice be given of the application to the defendants before I would entertain it.

17. On the basis of what has been said to me this morning I lay no blame upon anybody other than myself for the fact that I reached an incorrect conclusion, but I regard it as regrettable that I did.

20. As a result of the submissions which were made to me on the morning of 5 August 2002, I made orders ex parte in terms restraining the first three defendants until 4.15 pm on 6 August 2002. Then, on the afternoon of 6 August 2002, Ms O'Brien appeared before me again and Mr Friend appeared on behalf of the first three named defendants. At that time Ms O'Brien made application to extend the injunction for a short time. Although Mr Friend formally opposed that application, he graciously accepted that it was the most practicable course to adopt.

23. Today the matter has come before me on a fully contested basis. Further affidavits have been filed on behalf of the plaintiffs and the defendants and I have received written and oral submissions from Mr Friend.

26. Mr Friend advanced four arguments. The first was that the whole of this proceeding was incompetent because the bringing of the proceeding was barred by s. 166A of the Workplace Relations Act until such time as a certificate had issued. He submitted that the expression "action in tort" which is used in s. 166A(1) should be understood as including not only actions for damages and specific relief in tort but also proceedings for equitable remedies which might be granted in equity's auxiliary jurisdiction in aid of legal rights.

29. He submitted that if s. 166A were not construed in that fashion, the result would be effectively to emasculate the provision. He contended that because an action in tort for damages could not on any view be prosecuted to judgment in the 72 hours which may elapse under sub-s. 166A(6) it must have been in the contemplation of the legislators when they used the expression "action in tort" that it would cover not only an action for damages but also proceedings for other remedies which conceivably could be obtained within the 72 hours.

32. In his submission, s. 166A as introduced by amendments to the Act made in 1993, should be seen as informed by an intent to leave industrial disputes to be dealt with under the Workplace Relations Act during the 72 hours period, unaffected by approaches which either party might otherwise wish to make to a court of law or equity.

35. Alternatively, he submitted that even if the words "action in tort" are properly to be confined to an action in tort strictly so called, the effect of sub-s. 166A(1) is still to preclude the grant of injunction to restrain activity until the 72 hours has expired: because, he submitted, equity will not act in aid of legal rights if the legal rights are either barred or are unenforceable, whether by reason of statute or otherwise.

38. He accepted that a number of judges at first instance, to some of whose judgments I referred in the reasons which I gave on 5 August 2002 when I made the first order, have held to the contrary or at least have held that they are able to grant injunction during the 72 hour period, but he relied upon the decision of Goldberg J in Keppel Prince Engineering Pty Ltd v Automotive Food Metals Engineering Printing and Kindred Industries Union[1], _a_s supporting his contention. In Keppel Goldberg J held that it was seriously arguable that s. 166A is sufficiently broad to prohibit equity granting an injunction of the kind which was sought in this proceeding, although it has to be observed that the argument which was advanced by Mr Friend does not find expression in Goldberg J's reasons for judgment.

41. Be that as it may, I must say for my own part that I regard Mr Friend's submission as persuasive. A court of equity will not ordinarily lend its aid in support of legal rights if those legal rights cannot, by reason of statutory prohibition, be enforced at law[2].

44. That said, however, because of the decisions to which I have already referred, and because I think it is open to conclude that s. 166A(1) would have work to do even if it is restricted to an action in tort strictly so called, I consider that there is at least a serious question to be tried as to whether this action or its commencement was prohibited by s. 166A(1).

47. Mr Friend's second argument was directed to a s. 166A certificate which has issued since I first made orders on 5 August 2002. He submitted that such a certificate, having issued after the commencement of the proceeding, cannot enliven a proceeding which was a nullity for failure at the outset to comply with s. 166A or, alternatively, that the breadth of the certificate issued is such as to cover only the plaintiffs' Springvale plant and not the plaintiffs' Noble Park plant.

50. The first part of that argument falls with the first argument. Once it is accepted that there is a serious question to be tried as to whether or not a proceeding for injunction may be instituted before issue of the certificate required by s. 166A, it does not matter for present purposes whether or not a subsequently issued certificate can enliven a proceeding which was a nullity from the outset.

53. The second part of the argument is, however, of more importance because, although I need not decide it finally upon this application, it does go in the balance when it comes to dealing with discretionary considerations.

56. Mr Friend's third argument was directed to discretionary considerations. He submitted that I had not been told of matters of which I should have been informed when the matter came before me ex parte, and thus it was appropriate now to discharge the orders which were made.

59. The matters which Mr Friend suggested I had not been informed of, or not informed of adequately, were: first, that no notice had been given when it could so easily have been given; secondly, that it was alleged by the defendants that the dispute was the result of the plaintiffs having entered into an arrangement to allow four weeks' retrenchment benefits and having then reneged upon that arrangement; thirdly, the fact that the plaintiffs had left till late on Friday afternoon the making of their application for a s. 166A certificate (compare the observations of his Honour Justice Munro in TDU Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Case No. C2002/3529 of 18 July 2002, especially at paragraphs 8 to 10); and fourthly, that even though the matter had come on for hearing at 3.30 pm on Monday afternoon before the Australian Industrial Relations Commission, the plaintiffs had delayed until five o'clock before deigning to mention that they had that morning obtained from me an order to restrain the defendants from continuing with their picket.

62. I have already referred to the misapprehension under which I acted when I heard this application on Monday morning and as to the circumstances in which that came about. As will have appeared, it may be that I alone am at fault in what occurred. I am disappointed that it happened, but I am unable to find that there was any deliberate or even careless withholding of information from me when the ex parte application was made.

65. I am, however, more concerned about the delay in informing the defendants of the order which I made, and by the fact that the application to the Industrial Relations Commission for a s. 166A certificate was not made until the afternoon of Friday; thus, in effect, depriving the defendants of the 48 hours which elapsed over the weekend.

68. As at present advised, I do not have enough material before me to form a concluded view about the propriety of what was done, and therefore I express no final view upon it. But I must say that my concern about it is such that, if the only rights and interests in issue in this proceeding were those of the plaintiffs, I would be inclined to dissolve the injunction which has been granted and to refuse for the time being any further injunctive relief.

71. The fact is, however, that it is not only the plaintiffs' interests which are here at stake but, as the affidavit material makes plain, also the interests of the Holden Motor Company and Mitsubishi Motors; and I think also all of the persons, workers and others, that have an interest in those operations continuing to run.

74. I consider that I am entitled to and should take into account what I regard as being the vital interests of those third parties and, in the end, it is those, as opposed to the interests of the plaintiffs, which persuade me that the balance of convenience lies with granting an interlocutory injunction to restrain the picketing which would otherwise prevent the continued ingress and egress of vehicles from the plaintiffs' plants.

77. Mr Friend's fourth argument was directed to the width of the orders which I made on the evening of 6 August 2002. His first submission in that regard was directed to the word "members" where it appears in the opening lines of paragraph 2 of the order. He submitted that its inclusion was apt to create a degree of confusion that the injunction restrained not only the union, howsoever it might act, but also members of the union even if they were not acting on behalf of the union.

80. I do not accept that submission. It appears to me to be plain that the injunction goes to restrain the union acting, whether by itself or by its members. The injunction does not restrain the members acting otherwise than on behalf of the union. Indeed, it was because that was so that it was necessary to add additional defendants on the evening of 6 August 2002.

83. Mr Friend's second submission concerning the breadth of the orders was that, on the material before me, there is no imminent risk of pickets at the Noble Park plant and therefore no necessity or basis for an injunction to restrain activities of the kind which are set out in the order of 6 August. There is force in that submission. The material as to the threat at Noble Park consists of an intimation by one of the union members that there would be an assembly of people at the Noble Park plant. It was made some days ago and has not yet been acted upon.

86. It is to be remembered, however, that since 5 August 2002 the defendants have been enjoined from picketing at Noble Park and accordingly I conclude that I should not place a great deal of weight on the fact that there has been no action at Noble Park since 5 August. There is also evidence, which is not contradicted, that it is vital for the continued operation of the plaintiffs' plant and flow of components from there to Holden and Mitsubishi that there be movement between the plaintiffs' Springvale plant and Noble Park plant on a regular basis.

89. Finally, although I accept that to trench upon the ability of disgruntled employees to protest against what they consider an injustice is a big thing, I note that all that is prohibited by the injunction is activity which is unlawful. The injunction does not prohibit peaceful demonstration.

92. In all the circumstances I am disposed to continue orders in respect of Noble Park as well as Springvale plants.

95. Mr Friend's third submission on the form of the orders concerned paragraph 1(c). He submitted that it was unnecessary in order to protect against unlawful conduct having regard to the contents of paragraph 1(d) and moreover that it might be construed as restricting the right of the defendants and others to protest lawfully against what they considered to be an injustice. I agree with that submission and I propose to delete paragraph (c) from the further orders that I make.

98. Finally, Mr Friend submitted that paragraph 1(h) should be modified so as to read: "standing in line or any other formation on any roadway, lane, footpath or any other form of access leading to or from the sites, so as to obstruct the movement of any person or vehicle on or off the sites". His submission was that without that change there was risk of confusion. I am inclined to agree with him and therefore will make the change.

[1] (2001) 109 IR 436, especially at paragraph 33 to 35.

[2] See JC Williamson Ltd v Lukey and Mulholland [1931] HCA 15; (1931) 45 CLR 282 at 298-300; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 76 ALJR 1 at [16] and [86].