Australian Workers' Union v Pilkington

GOLDBERG AND WEINBERG JJ: 1 On 9 August 2000 Beach J in the Supreme Court of Victoria made orders at the suit of the respondents, Pilkington (Australia) Ltd and Pilkington (Australia) Operations Limited, restraining the appellants until 4.15pm on Monday 14 August 2000 from carrying out certain acts and participating in certain conduct which can generally be described as picketing the premises of the respondents. The order restrained the first appellant, Australian Workers' Union ("the Union"), and ninety‑two employees of the respondents ("the employees") from: "(a) preventing, hindering or interfering with, free access to, and free egress from the premises of the secondnamed Plaintiff at 95 Greens Road, Dandenong in the State of Victoria ('the Dandenong Site'); (b) threatening, besetting, harassing or intimidating any person entering or leaving or about to enter or leave or who has entered or left the Dandenong Site; (c) inducing, procuring, advising or persuading any person not to enter or not to leave the Dandenong site, or attempting to so induce, procure or advise or persuade; (d) threatening, besetting or intimidating any person who is in on or in the immediate vicinity of the Dandenong site; (e) interfering with any vehicles, or contents or load of any vehicle, entering or leaving, or about to enter or leave, or who has entered or left the Dandenong site, or attempting to so interfere; (f) besetting or following any person or vehicle approaching or on the way to, or in the course of or after departure from the Dandenong site; (g) going within 50 metres of any entry or exit point at the Dandenong site otherwise than in the course or for the purposes of lawfully performing their duties as employees of the secondnamed Plaintiff; (h) standing in line or in any other information on any roadway, lane footpath or any other form of access leading to or from the Dandenong site or otherwise obstructing the movement of any person or vehicle on or off the site. (i) causing, inducing, procuring or advising any person to do or attempt to do any of the acts or things restrained by anyone of the subparagraphs (a)‑(h) of this Order." 2 The appellants filed a notice of appeal on 10 August 2000 appealing to the Federal Court against this order and by notice of motion filed the same day sought an order that until the hearing and determination of the appeal pars 1(c), (e), (g) and (h) of the order be stayed. That stay is opposed by the respondents. 3 The jurisdiction of the Court to grant a stay is found in O 52 r17 of the Federal Court Rules which provides: "(1) An appeal to the Court shall not - (a) operate as a stay of execution or of proceedings under the judgment appealed from; or (b) invalidate any intermediate act or proceeding, except so far as the Court or a Judge or the court below may direct. (2) The Court may vary or vacate any direction of the Court or the court below referred to in sub‑rule (1) (3) An application for a direction of the Court or a Judge under sub‑rule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below. An application for a direction under sub‑rule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below." 4 Although a single judge of the Court has power under O 52 r17 to hear an application for a stay of an order made by a single judge which is the subject of a notice of appeal, the application for the stay in this appeal has been heard by a Full Court. We consider that as a matter of principle it is desirable, wherever practicable, that a Full Court rather than a single judge consider any application to stay an order of another single judge of this Court pending the hearing of an appeal to a Full Court. That practice is in conformity with the practice which prevails in some other courts. The same practice should apply to an appeal brought from an order of a judge of another court. 5 The application for interim injunctions made to Beach J arose out of industrial action taken by the Union and the employees. The first respondent manufactures and supplies float glass and process glass for building products and automotive customers at a number of sites including premises at 95 Greens Road, Dandenong. The second respondent employs the labour which carries out the work. We call the respondents collectively "Pilkington". The terms and conditions of employment of Pilkington's employees are regulated by two enterprise agreements whose nominal life expired on 31 March 2000 and 3 June 2000 and by The Glass Industry - Glass Production - Award 1998. Since the expiration of the enterprise agreements the parties have been negotiating new enterprise agreements. Most of Pilkington's employees are members of the Union. 6 On 2 August 2000 the Union gave Pilkington notice pursuant to s 170MO of the Workplace Relations Act 1996 (Cth) ("the Act") of the intention of the Union and its members employed by Pilkington to take industrial action in the nature of a strike commencing at 6.00am on Tuesday 8 August 2000 for a period of four weeks ending 6.00am on Tuesday 5 September 2000. Conciliation proceedings were unsuccessful and early on the morning of Tuesday 8 August 2000 the Union and various employees of Pilkington commenced picketing activities at Pilkington's premises at 95 Greens Road, Dandenong. As a result of the actions of the picketers trucks were prevented from entering Pilkington's premises and deliveries to Pilkington could not be made. Vehicles and employees blocked the driveway into the premises. Pilkington said that the picketing activities were disrupting and interfering with its business and impeding its ability to deliver supplies to its customers. 7 Late in the afternoon on Tuesday 8 August 2000 Pilkington's solicitors notified the Union that an application would be made before Beach J in the Supreme Court of Victoria at 10.30am on the following morning. When the matter came on for hearing before Beach J on the next day, counsel for Pilkington raised with his Honour the question whether a certificate under s 166A of the Act was necessary before the proceeding was instituted and submitted that it was not. Counsel for the appellants did not address that issue. Counsel for the appellants sought an adjournment for 24 hours to enable the appellants to file answering material but his Honour refused to grant the adjournment and, after further argument, made the orders referred to in par 1 above. 8 The appellants have filed an amended notice of appeal in which they raise, inter alia, the following grounds: · The proceeding had been commenced and orders made without the issue of a certificate under s 166A of the Act. · There was a serious question to be tried that the conduct engaged in by the appellants was industrial action immune from suit or not actionable. · An adjournment of the application should have been granted. · The Judge evinced apparent bias. · The orders made were too wide and prevented the appellants from engaging in picketing which did not involve obstruction and besetting. 9 The general principles which govern an application for a stay pending the hearing and determination of an appeal in these circumstances are well settled. A party seeking such a stay is not entitled to the stay as of right. It is clear from O 52 r17 that the filing of a notice of appeal, of itself, does not warrant or justify the grant of the stay: see also Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694. 10 The Court is given a discretion which is only circumscribed by the need to be satisfied that there be a reason sufficient in the circumstances to warrant the exercise of the discretion in favour of the grant of the stay. In Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 Burchett J delivering the reasons of the Full Court (Burchett, Heerey and Whitlam JJ) followed the Court of Appeal in New South Wales in Alexander v Cambridge Credit Corporation Limited (supra), concluding that special circumstances did not have to be shown. The Court did not follow what it had regarded as a more stringent test applied in the Supreme Court of Victoria: see Cellante v G Kallis Industries Pty Ltd [1991] 2 VR 653; Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Australia) Ltd [1995] 1 VR 150. 11 In Philip Morris (Australia) Limited v Nixon [1999] FCA 1281 the Full Court of the Federal Court (Sackville, Hely and Gyles JJ) said at [17]: "The Court has a discretion whether or not to grant the stay, and if so, as to the terms that will be fair. In the exercise of the Court's discretion, it weighs considerations such as the balance of convenience and the competing rights of the parties, in particular whether prejudice will be caused by reason of the grant or withholding of a stay." Although special circumstances do not have to be shown it is important to recognise that a sufficient reason for the stay must be established. 12 An important factor in considering whether a stay should be granted pending an appeal, especially when the granting of the stay will be to deny the party seeking the injunction the benefit of the primary order in part, is whether the stay is necessary to preserve the subject‑matter of the litigation. Such a consideration has been regarded as relevant by the High Court in the context of applications for a stay pending the hearing of applications for special leave to appeal: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 683‑684; Haydon v Chivell (1999) 165 ALR 1 at 3. Authorities in the context of applications for special leave to appeal to the High Court are not directly applicable in the present circumstances as it has been established in such cases that exceptional circumstances must be shown before the exercise of the jurisdiction is warranted. 13 In the present context the Court is involved in a balancing exercise because the appellants have a right to participate in the conduct of what may be described loosely as "peaceful picketing" whereas on the other hand the respondents are entitled to be protected from unlawful interference with the carrying on of their business. 14 The appellants challenged the jurisdiction of the primary judge to make the orders which he did as Pilkington's claim in the Supreme Court was in substance that the appellants had engaged in tortious conduct by interfering with the respondents' business and interfering with the respondents' contractual relations with its customers. Before an action can be brought in tort against an organisation of employees a certificate has to be obtained from the Australian Industrial Relations Commission pursuant to s 166A of the Act. The point under s 166A, namely, the challenge to the jurisdiction, was taken for the first time by the appellants in their notice of appeal as the basis for the contention that Beach J had no jurisdiction to entertain Pilkington's application. 15 Before turning to the reasons why we dismissed the application for the stay on 10 August 2000, it is necessary to address the submission by Pilkington that the appeal to the Federal Court is misconceived and that the Court has no jurisdiction to entertain the appeal. Section 422(1) of the Act provides: "An appeal lies to the Court [defined in the Act as the Federal Court of Australia] from a judgment of a court of a State or Territory in a matter arising under this Act." Pilkington contended that the appeal by the appellants is not from a judgment in a matter arising under the Act because the proceeding instituted in the Supreme Court of Victoria relied upon the common law tort of nuisance. Although it is a ground set out in the amended notice of appeal that a certificate under s 166A of the Act was required before the proceeding could be issued and that no certificate had been issued, Pilkington said that this issue had not been raised by counsel for the appellants before Beach J. It as said that the absence of a s 166A certificate could only be relied upon in a matter arising under the Act for the purpose of giving the Federal Court jurisdiction to entertain the appeal if that issue was specifically raised in the defence filed in the proceeding in the Supreme Court. For this proposition Pilkington relied upon National Union of Workers v Davids Distribution Pty Ltd (1999) 91 FCR 513. At 519 the Full Court said: "A matter does not arise under an Act simply because a defence is available under that Act. Unless and until the defence is raised by a defendant, the defence is not an issue in the case; it is not part of 'the subject matter for determination'. As Menzies J said in Felton v Mulligan at 382: 'A matter arises under a law when it is necessary in litigation to determine whether that law confers a right or affords a defence which is an issue in the litigation.' (Emphasis added.) However, once a defence based on a provision of a Commonwealth statute is raised by a defendant, the relevant proceeding becomes a 'matter … arising under any laws made by the Parliament'." In that case no defence available under the Act was raised. In particular, none of the defendants raised s 170MT of the Act as a defence at any relevant time. Counsel for Pilkington submitted that the defence had to be raised formally in a document. We do not read the Full Court as going so far. 16 In the present case the issue of the necessity for a certificate under s 166A to be given was raised before Beach J by counsel for Pilkington, albeit by way of submission that such a certificate was not necessary before the proceeding was instituted. Although counsel for the appellants did not challenge that contention before his Honour, the scope and operation of s 166A was plainly part of the subject‑matter for determination before Beach J. We are not persuaded therefore that there is no appeal in a matter arising under the Act for the purposes of s 422(1) presently before the Court. 17 The main thrust of the appellants' submissions for the stay of subpars (c), (e), (g) and (h) was that they were wider than was necessary to restrain the conduct of which complaint was made. It was submitted that those parts of the order restraining the appellants from engaging in non‑obstructive or peaceful picketing which was not tortious were not necessary to protect Pilkington. 18 The appellants did not contend that there was not material before Beach J which entitled him to make the orders in subpars (a), (b), (d) and (f) of his order. Rather, the appellants submitted that these orders were sufficient to restrain what was said to be the unlawful and tortious conduct. 19 The appellants submitted that unless the stay order was granted the appellants would suffer irreparable harm because they would be unable to engage in peaceful non‑obstructive picketing which they were entitled to do under the common law. 20 Beach J was presented with evidence which, in our view, entitled him to make orders restraining conduct of the appellants which interfered with the carrying on of Pilkington's business and commercial activities. The injunctions granted by his Honour were granted for a limited time, namely until 4.15pm on Monday 14 August 2000. Accordingly, if a stay were to be granted of any part of his Honour's orders pending the determination of an appeal by this Court, that would be an effective allowing of the appeal to that extent because by the time that appeal came on for hearing the order appealed from would have either been discharged or supplanted or overtaken by a further order. 21 In such circumstances we would only be prepared to grant a stay if a strong case was made that the appellants would suffer serious and irreparable harm. 22 In our view no such case is made out. If no stay is granted there will still be picketing activities available to the appellants, albeit undertaken no closer than 50 metres of any entry or exit point at Pilkington's premises at 95 Greens Road, Dandenong. The most that the appellants will lose will be the opportunity, for several days, to engage in the type of picketing activities which they would prefer because any continuation or variation of the orders made by Beach J on or after 14 August 2000 would itself be capable of being the subject of appeal. 23 We are not persuaded that the refusal of a stay of subpars (c), (e), (g) and (h) will constitute any form of irreparable harm to the appellants. It is arguable that some parts of those orders may be wider than is necessary to ensure that the conduct complained of is restrained. For example, it may be said that it is not necessary to restrain the appellants from going within 50 metres of any entry or exit at the premises other than in the course of performing their employment duties, having regard to the other injunctions granted restraining them from preventing, hindering or interfering with free access to and free egress from the premises and restraining them from threatening, besetting, harassing or intimidating any person entering or exiting, or about to enter or leave, or who has entered or left the premises. Nevertheless, we cannot see that such an injunction causes irreparable harm. We are prepared to accept for present purposes that it may impinge upon the rights of the appellants to undertake peaceful and non‑obstructive picketing. But such restraint will only occur during the period of four to five days. It is not as if some events will occur during that period in relation to the negotiations which have been undertaken for the purposes of entering into a new enterprise agreements which will have the effect of irrevocably changing or altering the dynamics of those negotiations. It is not suggested that the injunctions will inhibit the appellants in negotiations towards those new enterprise agreements. 24 It is for these reasons that we dismissed the motion for the stay of the orders of Beach J on 10 August 2000. Pilkington sought an order that the appellants pay Pilkington's costs of the motion and we understood the appellants to contend that in accordance with s 347 of the Act no order for costs should be made. We reserved the question of costs to enable the parties to consider our reasons. We will give the parties seven days to file any written submissions they wish to make on the question of costs.

REASONS FOR JUDGMENT FINKELSTEIN J: 25 The facts appear in the reasons for judgment of Goldberg and Weinberg JJ. 26 The first question that arises is whether the Court has jurisdiction to entertain the application for a stay. The respondents say that no appeal lies to the Federal Court from the orders made by Beach J in the Supreme Court of Victoria. It follows that if the appeal is incompetent no stay order can be made. 27 An appeal lies to the Federal Court "from a judgment of a court of a State or Territory in a matterarising under[the Workplace Relations Act 1996]": s 422(1) of the Workplace Relations Act 1996 (Cth) ("the Act"). A matter can arise under the Act in one of two ways. It may be raised upon the face of, or in the course of prosecuting, a plaintiff's claim or it may be raised for the first time in the defence. As soon as it is raised, it is a matter arising under the Act and a judgment of the State or Territory court obtained in that matter is appealable to the Federal Court: see generally Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1136; Miller v Haweis (1907) 5 CLR 89 at 93; Felton v Mulligan (1971) 124 CLR 367. 28 Here the title of the respondents to sue in the Supreme Court may depend upon the effect of s 166A of the Act. That section imposes restrictions on certain actions in tort against an organisation of employees, such as the first appellant, and officers, members or employees of that organisation, such as the remaining appellants. By s 166A, an action in tort may not be brought against such persons if they are acting in furtherance of claims that are the subject of an industrial dispute, unless the Australian Industrial Relations Commission has granted a certificate of the kind mentioned in that section. It is common ground that no such certificate has been granted. 29 There is an issue as regards whether the existence of the certificate is a bar to the commencement of an action or whether it merely provides a defence. So far as I have been able to discover, this issue has not been conclusively resolved. In National Workforce Pty Ltd v Australian Manufacturing Workers' Union [1998] 3 VR 265 the Victorian Court of Appeal seems to have assumed that section operated as a bar to the institution of proceedings, speaking of s 166A as a restraint on "recourse to the common law courts": [1998] 3 VR at 278. In Australian Workers' Union v Yallourn Energy Pty Ltd [2000] FCA 65 Merkel J said (at [50]) that section 166A operates as a "fetter on, rather than an authorisation for, the bringing of action": see also Construction, Forestry, Mining & Energy Union v Mirvac Constructions Pty Ltd [2000] FCA 341 at pars 16 to 19; Re Australian Meat Industry Employees Union (1990) 71 IR 220 at 224. On this state of the authorities it is plainly arguable, that the existence of a certificate under s 166A goes to the right of the respondents to bring the proceeding in the Supreme Court. In a very direct sense then, the bringing of the claim in the Supreme Court gave rise to an issue under the Act, and that is sufficient to invest appellate jurisdiction in the Federal Court under s 422(1). 30 Now it is necessary to decide whether a stay should be granted. The general rule is that a successful party is entitled to the benefit of the judgment obtained by him, which judgment is presumed to be correct. Accordingly, the onus is on an appellant to demonstrate a proper basis for the grant of a stay: Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 at 694‑5. Once it was thought that the jurisdiction to grant a stay would only be exercised in special circumstances: The Annot Lyle (1886) 11 PD 114. This may still be the position when an unsuccessful party seeks a stay pending an appeal to the High Court: Gerah Imports Pty Ltd v Duke Group Ltd (in liq) (1994) 68 ALJR 196 at 197; 119 ALR 401 at 403; Commissioner of Taxation (Cth) v Myer Emporium Ltd (1986) 160 CLR 220. In Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; 134 ALR 460 Kirby J said that the reasons for so restricting the grant of a stay include the fact that in such a case the appellant would have proceeded through at least two tiers of the judicial process and only a relatively small proportion of applications for special leave are successful. 31 Generally, and all other things being equal, a stay will be granted where a party seeks to appeal a decision and the appeal would be rendered nugatory unless a stay were granted in the meantime: Wilson v Church (No 2) (1879) 12 Ch D 454 at 458. If the position were otherwise, the right to appeal would be barren. Here of course the position is quite the opposite. If the stay is granted the orders, which only operate until 14 August 2000, will have been exhausted before the appeal is heard and determined. That is to say, if there be a stay, in a practical sense the appellant will have succeeded in the appeal because, apart from any question of costs, there will be nothing to litigate. From the point of view of the respondents, they will forever be deprived of the full benefit of the ex parte orders. In such circumstances, although a stay application should not be a vehicle for a detailed analysis of the prospects of a successful appeal, it would be wrong not to consider those prospects: see eg NWL Ltd v Woods [1979] 1 WLR 1294 at 1305‑1306. Unless the prospects are good a stay should not usually be granted. 32 The orders under appeal were made to prevent the appellants engaging in conduct which, on the present state of the evidence, amounts to an unlawful interference with the respondents' business, no doubt causing them to suffer considerable loss. The principal complaint is that the orders went further than was strictly necessary to abate the unlawful conduct. More importantly, it is said that the orders operate as a fetter on the appellants' right of free speech and assembly by preventing them from engaging in lawful "picketing". This is the only error that was pressed by the appellants. 33 It goes without saying that a court should not interfere with free speech except in the clearest of cases. There are many cases which demonstrate the reluctance of a court to interfere with such a fundamental right for reasons which are so obvious that it is not necessary to repeat them. The cases include Bestobell Paints Ltd v Bigg [1975] FSR Vol 1 421; In re X (a minor) [1975] Fam 47; J Trevor & Sons v Solomon (1977) 248 EG 779 and generally Attorney‑General v British Broadcasting Corporation [1981] AC 303. However, this is a special case. Beach J granted temporary relief to run for only a few days. But for the business of the Practice Court, he would have returned the application for interlocutory relief on the day after making his order. It was open to Beach J to form the opinion, which his Honour obviously did, that the situation was sufficiently urgent to justify for a very short time the grant of interim orders that would bring the unlawful conduct to an end. If, on one view, the orders went further than strictly necessary, the interference with the appellants' right to freedom of expression was slight. On this ground, the appellants do not appear to have sufficient prospects of success on the appeal to warrant the interference of the Court at this stage. 34 I should make it quite clear that I have confined my consideration of the merits solely to the ambit of the orders made. I have not considered whether the appellants might succeed on some other ground, as there was no argument put to support the appeal on some other basis. 35 It is for the above reasons that I agreed that the application for a stay be refused. I agree with the other orders proposed by the other members of the Court.

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