BARLOWORLD COATINGS (AUST) P/L v. AUSTRALIAN LIQUOR, HOSPITALITY & MISC. WORKER'S UNION [2001] NSWSC 826

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WEDNESDAY 19 SEPTEMBER 2001 BARLOWORLD COATINGS (AUST) PTY LTD v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION

Judgment 1 Bryson J: By Summons issued on 13 September 2001 the plaintiff claims an injunction restraining the defendant from doing any act by way of picketing which in any way obstructs or hinders or interferes with the passage of any person to or from the plaintiff's factory premises at 9 Birmingham Avenue, Villawood, New South Wales. The injunction claimed would also forbid other acts including photographing persons, following vehicles, abusing, threatening, besetting, harassing or intimidating persons approaching and leaving the premises or on the premises, standing in formation on any roadway, lane or footpath in the path of traffic approaching or leaving the premises, and other acts. By Notice of Motion the plaintiff claims an interlocutory order in the same terms. These reasons relate to the interlocutory application. 2 The plaintiff occupies and uses paint factory premises on land in Birmingham Avenue, Villawood. A sketch plan shows that the site has street access only to Birmingham Avenue. The factory premises are surrounded by fences, but at most places there is a margin between the fences and the site boundaries. Access to the premises is obtained through a gate approached by a driveway about 10 metres long across the plaintiff's land from Birmingham Avenue. Most of the acts complained of took place in Birmingham Avenue or on the driveway. 3 The grant of an interlocutory injunction is discretionary. It is necessary to have regard (a) to whether there is a serious question to be tried with respect to the plaintiff's claim and (b) to whether the balance of convenience favours granting interlocutory relief. It is not necessary or possible to come to a final view on the merits of either the plaintiff's claim or the defences, or to find the facts in a way which will be binding on the parties at later stages. Nothing said in this judgment is a final conclusion on the rights of the parties. As presented by the plaintiff's counsel, the plaintiff's claim is based on the law relating to Nuisance, private nuisance in interference with the plaintiff's occupation and use of its premises by impeding access, and public nuisance in impeding use by the plaintiff and persons and vehicles proceeding to and from the plaintiff's premises of public roads. The plaintiff's counsel also referred to other possible bases of action relating to unlawful interference with the plaintiff's business and with the plaintiff's contractual relations with third parties. Reliance on these causes of action was preliminary and was not well defined and the major subject of debate was Nuisance law. The plaintiff may also be in a position to base its claim on the law of Trespass for acts which took place on the driveway and not on the public road. As the litigation proceeds the plaintiff will be required to define its position more fully. 4 There has been a state of dispute between the plaintiff and the defendant and the Australian Miscellaneous Workers' Union and also employees of the plaintiff who are members of one or both unions. These Unions are referred to as LHMU & AMWU. Employment conditions are regulated by the Australian Paint Industry Award 2000 and the Taubmans Certified Agreement 1999. There are 124 employees under the Paint Award at the Villawood factory. The plaintiff has warehouses and other premises elsewhere including at Seven Hills. The Taubmans Agreement expired on 31 July 2001. Negotiations for a new enterprise agreement under the Workplace Relations Act 1996 began in April 2001. LHMU gave a notice to initiate a bargaining period under s.170MJ of the Workplace Relations Act about 23 July 2001 and on 24 July 2001 gave notice of intended industrial action under s.170MO. The kinds of industrial action specified in the notice included "(l) picketing; (m) protest of sound or visual forms." Another notice given on 30 July 2001 also included these forms of industrial action. The plaintiff made a settlement offer which was rejected at a mass meeting of members of both unions employed by the plaintiff on 31 July, and again at another meeting on 2 August. A further notice under s.170MO was given on 10 August indicating that there would be a complete stoppage of all work performed by LHMU members for seven days commencing on 16 August and again specifying action including picketing and protests of sound or visual form. There were conciliation proceedings, and a further s.170MO Notice on 16 August 2001. 5 A complete stoppage of work at Villawood began on 16 August 2001 and still continues. The AMWU gave a generally similar series of notices. Conciliation conferences have not produced effective results and no agreement on the terms of a new Enterprise Agreement has been reached. There has been a complete stoppage of work by members of the LHMU employed at Seven Hills since 3 September 2001. 6 A picket has been conducted by the LHMU and the AMWU at the Villawood site since 16 August 2001. The picket has consisted of varying numbers of individuals, up to 40 or 50, exhibiting flags of the AMWU and the LHMU, displaying signs and with equipment such as a barbecue, tables and chairs and a portable building. The numbers in attendance vary at different times. Persons who have been observed present at or taking part in the picket include Mr Mark Boyd, Assistant State Secretary of the New South Wales branch of the LHMU. On the evidence before me, conducting the picket should be found to be the common activity of both unions. Particular actions in the conduct of the picket should not and cannot be divided and attributed to one or other of the unions. Although it is the plaintiff's evidence that until 8 September the conduct of the picket was generally peaceful the plaintiff has produced a report from Mr Shane Pearce that on 16 August 2001 upon entering the site he was stopped by some persons who told him about current industrial action, told him he should not cross the picket line and that if he did, when they returned to work they knew who he was and would jump on him, and then he passed through. 7 More detailed evidence of activities relates to events beginning on 8 September 2001. At about 8.55 p.m. Mr Stuart Huxtable who is the National Warehousing and Distribution Manager was at the Villawood factory for the purpose of organising delivery of paint by contract truck drivers from the factory to a distribution depot, from which it would be distributed to retail outlets. He saw that about seven cars were parked in the driveway with the effect of blocking access by trucks to the Villawood site. One of the cars was driven by Stuart Roser, an LHMU delegate. There was a picket line and Mr Huxtable recognised 14 persons on the picket line as employees of the plaintiff whom he knew; these included Mr Stuart Roser, and Mr Sam Magro, an AMWU delegate. The Managing Director Mr Bremner said that he recognised a further six employees and an LHMU organiser Ms Joanne Schofield. Later about seven police officers attended in response to a call by the Managing Director for assistance in getting the trucks out off the site. About 11.05 p.m. most of the picketers left the driveway and moved to the far side of Birmingham Avenue, opposite the driveway, but the cars remained. The Managing Director spoke to the picketers. Mr Huxtable joined Mr Bremner and while they were waiting for the picketers' response, various picketers including Mr Roser made a number of observations which expressed hostility but did not carry the situation forward. After a request by a police sergeant the drivers began to move their cars and at about 11.25 p.m. a group of five trucks provided by an independent transport business began to leave the site. As they left, one of the employees wrote and held up a sheet of paper reading "SCAB" in front of the headlights of each truck. Picketers shouted "Scab" at the truck drivers and took photographs of them. As each truck left, the employee who held up the paper also shouted offensive and threatening words at the truck drivers. Mr Roser said to Mr Huxtable "Don't forget Stuart, one day we'll be back working with you" and another employee shouted at Mr Huxtable "We won't forget you". These statements were not specific but in the circumstances were threatening. Some vehicles followed the trucks for a distance, which may not have been very far. Then the blockade of vehicles in front of the driveway was formed again, and again with delay the cars were moved at the request of the police sergeant. Other trucks left and there were similar events in which insults were shouted at truck drivers, and then Mr Huxtable and other staff departed. As Mr Huxtable left, picketers shouted at him and waved union flags, including the LHMU flag, over his car. 8 When Mr Huxtable arrived at Villawood for work on Monday 10 September there were again a number of picketers standing near the entrance. Picketers made some comments to the driver of the car ahead of him and many picketers shouted "Scab" at him as he passed through the gate. Similar insults were shouted at other staff members on that day and on the following day. On 10 September, Mr Huxtable saw picketers stop a van driving into the entrance of the site by standing in front of it and speak to the driver after which the van reversed into the driveway and left. There is hearsay evidence that an employee of Barloworld told one of the principals of the transport company which supplies transport services to the plaintiff, on or about 10 September "You should keep your nose out of it because it is going to get nasty." There is also hearsay evidence that when Jonathan Horan, an officer of the plaintiff, attempted to leave the site at about 9 p.m. on 10 September the driveway was blocked by cars, chairs, an Esky and a card table. However as he approached the entrance the picketers began to remove the obstructing items. 9 On 11 September Mr Huxtable was again insulted with the word "Scab" as he attended for work. He again saw a van being stopped from entering the site by picketers standing in front of it; the van did not enter but the driver used a trolley to deliver food to the canteen. There is hearsay evidence that on 11 September Mr Madjewski the Maintenance Manager stopped his car in the driveway behind another vehicle which had stopped as he was about to enter the Villawood site; an employee spoke to him insultingly and claimed to see what he had in the boot of his car. Also on 11 September picketers including Mr Roser shouted insults at Mr Hancock, and at Ms Long, who were staff officers. There is further evidence of conduct of picketers on 12 September including a threat shouted at Mr Huxtable to take the company down, and insults shouted at several officers. There is hearsay evidence that on 12 September a van from a forklift company was stopped by picketers and statements were made to the driver threatening him with an adverse outcome after the strike was over; the driver then told Mr Huxtable that he was going to tell his employer that he was not going to return to the Villawood site. There is further evidence of insults or threats, an example being "You low life bastard we're going to get you", being shouted at persons by a picketer. The police attended from time to time. There is evidence of an event in which a car was parked across the driveway, a taxi arrived and left without the passenger entering the premises. There were a number of other incidents of generally similar nature. In particular there is evidence that about 7.30 a.m. on 13 September Mr John Glover was threatened as he was approaching the premises in Christina Avenue driving his car and again in Birmingham Avenue; the event in Birmingham Avenue should be related to the picket; an employee shouted at Mr Glover to the effect "We are going to get you". 10 The scale of the plaintiff's operations has been reduced by the stoppage of work since 16 August and the absence of paint production at Villawood. However the plaintiff has goods in stock which it has wished to ship from the Villawood site.

11 Mr Langdale, the Supply and Distribution Manager, dealt in evidence with events on 14 September 2001. This litigation was commenced on the afternoon of 13 September 2001 when I was asked but refused to make an immediate injunction ex parte. Notice of the proceedings was given to the LHMU by fax transmission at about 8 p.m. on that day and the Summons and supporting documents were served at the LHMU's registered office at about 9.45 a.m. on 14 September. Copies of the Notice of Motion and Summons were distributed to picketers about 9.15 a.m. 12 When Mr Langdale arrived for work about 7.30 a.m. on 14 September a number of picketers were present, some at the intersection of Christina Road and Birmingham Avenue, a short distance from the entry to the site and some near the entrance. The picketers had a portable cabin bearing a sign "LHMU official picket". At about 10.30 a.m. forklift drivers and additional security guards arrived at the site; as they arrived the word "Scab" were shouted at them. Preparations were made to receive trucks which had arrived outside the site and to transport product from the factory. Police arrived at some time after 11.30 a.m., arrangements were made for the trucks to enter and the managing director Mr Bremner received some shouted insults from picketers. A truck arrived in Birmingham Avenue. At this point events were disrupted by a bomb threat which was investigated by the police who decided and announced, at about 1 p.m, that the site was clear. The picketers sat in the driveway in the entrance to the site so that the truck could not turn into the driveway and enter. The blockage continued with a number of persons sitting down or standing in the driveway. A fire engine arrived, apparently in connection with the bomb threat, and the picketers pushed a silver car from the driveway to allow the fire engine through and then returned the car so that it partially blocked the driveway. An employee Paul Franklin said to Mr Bremner, Mr Huxtable and Mr Langdale "You should just send the trucks home, they won't be coming in." Another car arrived and was parked in the driveway partially blocking it. At about 12.50 p.m. two of the waiting trucks parked in Birmingham Avenue left; an officer of their transport company said "… I did not like the risk of anyone getting hurt" which may have referred to picketers as well as his drivers. Various insults were shouted at drivers and there were shouted requests to turn the truck around. Further trucks left at about 1 p.m. Management of the plaintiff decided at about 1.30 p.m. that no other attempts should be made to distribute products from the Villawood site that day. Later the forklift drivers left, escorted by police as they left. There is hearsay evidence that on that day a courier van was unable to enter the site; a staff member collected goods in the courier van. She also collected goods from a Mayne Logistics van and as she approached the van the picketers would not move out of her way so that she and another staff member were forced to brush against picketers while they walked through the picket line. There were insulting observations to her as she attended the van and returned. When Mr Langdale left at 4.10 p.m. first one and then another picketer impeded the departure of Mr Langdale and his car by walking very slowing across the driveway, forcing Mr Langdale to manoeuvre around him. Mr Stuart Roser shouted at him "Are you intimidated yet, Scab." 13 Important basic values are involved on either sides of an application to restrain picketing. Picketing can cover many kinds of behaviour. The plaintiff's claim relates to a basic liberty, the right of persons to come and go in public streets and have access to premises, unimpeded by people who do not have lawful authority to restrain them, and the related right of occupiers of land to be free from restrictions on access to their land. Freedom of movement is a basic value. Picketing involves reliance on another basic value, freedom of speech and expression, which Courts of Equity have been markedly reluctant to attempt to control by injunctions. Injunctions including interlocutory injunctions should not be granted as a matter of routine or without careful consideration including an address to the adequacy of other remedies. I am reluctant to attempt to use an injunction as a means of controlling anything in the nature of communication of a point of view; on the other hand not everything which is verbal is an exercise of freedom of expression. There are it seems to me rather close practical limits to the extent to which what people say can be controlled by an injunction. 14 An object of granting equitable remedies is to resolve controversies overall by enforcing all the rights and equities of the parties. This Court has a well- established reluctance to use equitable remedies in disputes of an industrial nature. See Harry M. Miller Attractions Pty Ltd v. Actors and Announcers Equity Association (1970) 1 NSWR 614 and David Jones Limited v. Federated Storemen and Packers Union of Australia (NSW) & Ors (1985) 14 IR 75 (Waddell J). In my understanding this reluctance is based, at least in part, on poor experience of the efficacy of injunctive relief and contempt proceedings to enforce rights or resolve disputes of an industrial nature. It is also based in part on the existence, now for about a century, of alternative specialist jurisdictions which overall are better equipped and better empowered to resolve industrial disputes. There is now a field of immunity from action in tort under the law of the State prescribed by s.166A of the Workplace Relations Act; with exceptions there stated, an action may not be brought against an organisation such as the defendant "… in relation to conduct by the organisation … in contemplation or furtherance of claims that are the subject of an industrial dispute …" see subs.(1). It is established by the decision of the Full Court of the Federal Court of Australia in David's Distribution Pty Ltd v. National Union of Workers (1999) 91 IR 198 that picketing which involves obstruction and besetting and therefore amounts to actionable tort is not industrial action within the meaning of s.4 of the Workplace Relations Act, and is not protected action and does not attract the immunity provided for by that legislation. 15 Much conduct which could be described as picketing is not tortious at all, but for picketing which is tortious it is not in my opinion appropriate, in relation to the Workplace Relations Act, for a Court of Equity to decline equitable relief on discretionary grounds because the dispute between the parties is of an industrial nature and appropriate for resolution under the Industrial law; a claim in respect -of picketing which is tortious cannot be resolved under industrial law. For that reason this Court's established reluctance to act in industrial disputes should not govern my decisions. There are recent instances in which this Court has granted injunctions in respect of tortious behaviour related to industrial disputes in fields regulated by the Workplace Relations Act: Patrick Stevedores Operations Pty Ltd v. Maritime Union of Australia (1998) 82 IR 237 (Wood CJ) and Visy Board Pty Ltd & Anor v. Automotive Food, Metals, Engineering, Printing & Kindred Industries Union (1999) 91 IR 88 (Dunford J). 16 The point at which picketing becomes tortious has been the subject of judicial consideration on a number of recent occasions. In the Court of Appeal of NSW significant observations were made by Mason JA (as his Honour then was) with the concurrence of other Judges in Sid Ross Agency Pty Ltd v. Actors & Announcers Equity Association of Australia] [1971] NSWLR 760 at 767; his Honour observed to the effect that picketing may become unlawful if it involves obstruction and besetting. See too Dollar Sweets Pty Ltd v. Federated Confectioners Association of Australia [1986] VR 383 (Murphy J) at 389-399, Australian Builders' Labourers' Federated Union of Workers (WA Branch) v. J-Corp Pty Ltd (1993) 42 FCR 452 at 461-462, and David's Distribution Pty Ltd v. National Union of Workers at 218-219 and at 223-224. Much behaviour which is ordinarily called picketing is not tortious at all. A great deal depends on detail, and generalisations are of limited use, but for persons to assemble outside a workplace and make known to others including people going to and leaving the workplace the fact that there is an industrial dispute, what their dispute is about, what they claim are the merits of the dispute and so forth is not unlawful or tortious; yet much the same behaviour would be tortious if in doing it they obstructed the passage of other persons, whether with vehicles or on foot. Obstruction could take many forms, such as standing in their way, or moving about in some way which interfered with passage. The evidence in this case shows a number of very clear instances of obstruction, including sitting and standing in the driveway, imposing the need on others to move around and avoid picketers, when there was no occasion for the behaviour but to impede passage. Other instances of obstruction are leaving cars and other articles in the driveway, and not removing persons or cars for unreasonable times or until requested or repeatedly requested by police. "Besetting" is a much less definite concept than "obstruction". Behaviour can constitute a nuisance to an occupier if the occupier or other persons attending the occupier's presence are watched continually or beset with insults or messages in ways or in circumstances which offer discouragement to attendance there and so impede the occupier's enjoyment of his property. When observing behaviour it would usually be easy to distinguish between making a point of view known by addressing other persons and discouraging the passage of other persons by besetting them with insults, offensive language and threats. The evidence in this case shows that a number of persons have been subjected to threats, while it also shows that a number of persons have been subjected to insults which reasonable people would find very discouraging and would tend to avoid. 17 There is in my view clearly a serious question to be tried as to whether conduct of the defendant's picket has constituted actionable nuisance in respect of besetting the plaintiff's factory and persons attending there. In any event there are clear instances of obstruction, one of which was completely successful and disruptive of the plaintiff's commercial activity. If the facts are found as the plaintiff alleges them there could not reasonably be any other conclusion than that there was actionable nuisance and that such events are likely to continue. 18 Several aspects of the evidence relating to besetting persons attending the premises received much attention in cross-examination and in argument. One aspect was the significance of the word "Scab", which evidence shows has been used very freely. The word has a well-known meaning in Australia, possibly derived from unionism in the pastoral context, referring to a person who continues working during a strike; it is clearly and strongly an insult and has little value as an expression of a point of view. Another matter much debated was repeated statements in the plaintiff's affidavits relating to intimidation, and to persons' feeling that they were intimidated. I do not think that the evidence about various persons having a sense of intimidation was of much value; the expression does not say anything clearly about the feelings of the person involved, and the better approach is for the Court to appraise the situation and the language used. 19 Defendant's counsel referred to a number of matters as discretionary considerations. He made extensive submissions to the effect that the conduct spoken of in evidence, including the use of the work "Scab", and other matter shouted at persons, did not fall outside the ambit of peaceful picketing. As I have said, my conclusion overall is that the plaintiff's evidence raises a serious question to be tried on that matter. In particular the evidence relating to insulting, offensive or threatening matters shouted at or spoken to persons raises a serious question to be tried with respect to besetting the premises and those persons and thereby causing nuisance to the occupier. Counsel also submitted that the evidence about blocking driveways did not constitute a blockade. The work "blockade" entered this debate because it was used in the resolution of the defendant in NSW Harness Racing Club Ltd v. Leichhardt Municipal Council (1997) 97 LGERA 256, and not because the existence of a blockade, as in naval warfare, is something which must be proved to establish actionable nuisance. The circumstances show reasonable grounds to apprehend the repetition or continuance of obstruction of passage. 20 Counsel also pointed out instances in which the evidence in this case falls short of evidence which has been held to be actionable nuisance in other cases, particularly the Dollar Sweets case. Counsel observed that the obstruction was at the lower end of the scale. In comparison with the Dollar Sweets case that is correct, but this does not in my view dispose of the plaintiff's claim for an interlocutory injunction. 21 It was also contended that there was no basis on which relief should be granted against the LHMU. It was contended that there was no evidence implicating the union in any blockade. In my view it is clear that maintaining the picket is an activity of the union itself. The union stated repeatedly in notices under the Workplace Relations Act that it would engage in picketing; it then engaged in picketing as evidenced by the presence of union officers, as well as members, over some weeks, and by display of union flags and signs; and a notice on the union's website refers to the picket as the union's picket. The Assistant State Secretary and a delegate are shown to have taken prominent parts in the activity complained of. In my view there is a clear prima facie case that the activity overall is an activity of the defendant. It is no less an activity of the defendant because evidence supports the view that it is also and concurrently an activity of other union. Counsel observed that in many instances the evidence does not identify persons, or identifies them and does not show their connection with the defendant. While there are a number of persons of whom this is correct, the activity overall is well associated by evidence with the LHMU and there is a basis for imputing the activity of unidentified persons who participate to the defendant's picket. 22 Counsel also made observations pointing to sources of restriction of commercial activity and commercial loss to the plaintiff which are likely to have had more impact than the picketing at the Villawood works. Overall it is indeed likely that the stoppage of work and the absence of production since 16 August have had greater impacts on the plaintiff's commercial position and have caused greater loss than the matter now complained of. That does not dispose of their tortious character; nor of the obvious impact as a cause of loss of impeding and preventing deliveries and other business activities at the Villawood site. Counsel contended that the conduct was not extreme, that little or no damage was attributable to that conduct, that there was room to canvass the unlawful picketing in an application which has been made to an industrial tribunal and that overall resolution of the dispute could be relied on to end the picketing with a return to work. As discretionary facts adverse to the grant of interlocutory injunction these matters to me to be of little weight. In particular, counsel's observation that the plaintiff only tried on two occasions to move product and on one occasion was successful does not appear to me to go any distance to dispose of the plaintiff's prima facie case or of the obviously strong grounds for expecting that in the absence of an injunction there will be further obstruction. 23 In my view I should make an interlocutory injunction in the proceedings, although not in as full terms as the plaintiff seeks. In particular I do not regard it as appropriate to make an injunction restricting taking photographs for the purpose of identifying persons attending to the premises; the information is not confidential and can be memorised or recorded by photographs as well as any other form. I do not think the word "intimidating" should appear in the injunction as it is not a sufficiently clear expression and could open debate about the subjective reactions of particular persons. Otherwise I propose to grant the plaintiff's application. I will proceed to give directions for the further conduct of the litigation. 24 Order:

Upon the plaintiff by counsel giving to the Court the usual undertaking as to damages,

1. Order that the Defendant by itself, its officers, delegates, servants and agents be restrained from:

(a) doing any act by way of picketing which in any way obstructs or hinders or interferes with the passage of any person, whether on foot or in a vehicle proceeding to or from the plaintiff's premises situated at 9 Birmingham Avenue, Villawood, New South Wales ("the premises");

(b) abusing, threatening, besetting or harassing by words or gestures or physically harming any person approaching or leaving the Premises;

(c) abusing, threatening, besetting or harassing by words or gestures or physically harming any person on the Premises;

(d) standing in line or in any other formation on any roadway, lane or footpath in the path of vehicular or pedestrian traffic approaching or leaving the Premises;

(e) aiding, abetting, counselling, procuring or inducing any person or persons to do or attempt to do any of the things restrained.

2. This order has effect as an interlocutory injunction until the final disposition of these proceedings or further order.

3. Costs of each party of the application for interlocutory injunction are costs in the proceedings.

4. I further Direct that the proceedings continue on pleadings; Statement of Claim be filed within 14 days and thereafter in accordance with the Rules of Court.

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