Plaintiff v First Defendant Second Defendant

1. At all material times, and as is known to each defendant, the plaintiff conducted and continues to conduct a refinery business located at 80-90 Refinery Road, Corio, in the state of Victoria ("the Refinery Business").

4. At all material times, the plaintiff:

(a) employed people pursuant to contracts of employment ("the Employment Contracts"); and

(b) contracted with various suppliers of good and services - relevantly including UGL Resources Pty Ltd, Wood Group PSN Australia Pty Ltd and Brockman Engineering Pty Ltd - and various customers ("the Commercial Contracts"),

in connection with the Refinery Business.

1. At all material times, the plaintiff was entitled to immediate possession of the land, building, fixtures and chattels located at 80-90 Refinery Road, Corio, in the state of Victoria ("the Site").
2. From about 6:00am on Wednesday, 5 October 2016, each defendant, by its officers, employees, servants or agents, and other persons unknown to the plaintiff, have established and maintained a picket at each of the points of access to or egress from the Site ("the Picket"), in the course of which they have or will soon be seen to have:

(a) obstructed and interfered with the passage of vehicles and persons proceeding to and from the Site; and

(b) thereby:

I. committed a nuisance;

1. interfered with the performance of contracts to which the plaintiff is party, including the Employment Contracts and the Commercial Contracts (or some of them); and

III. interfered with the trade or business of the plaintiff.

1. As a result of the above conduct, the plaintiff has suffered loss and damage and will continue to suffer loss or damage unless the conduct of each defendant and the persons whom it represents in this proceeding is restrained.[1]

2 The application for injunctive relief is supported by two affidavits sworn by Richard Bunting on 5 October 2016 and Jonathan De Unamuno on 6 October 2016.[2]

3 Mr White, who appears on behalf of the defendants, does not contest that the evidence before the Court establishes that there are serious issues to be tried that the defendant unions have engaged in conduct which constitutes a nuisance, interference with contractual relations and/or interference with trade or business of the plaintiff.[3]

4 I am satisfied that the evidence establishes that the unions have been actively involved in establishing the picket yesterday morning and its continuation to the present time. In particular, I had regard to the following matters. Firstly, paragraphs 44-57 of the affidavit of Mr De Unamuno, which provide the following:

1. At about 6.20 am I went to the gatehouse at the Refinery and observed the video footage of the mass meeting occurring at the contractor car park 1 off Refinery Road. I was informed by one of the security officers that approximately 250 people were present. I was later informed by Kerrin Thompson, Viva Refining Maintenance Manager, that those present included employees of UGL Resources Pty Ltd (UGL) and employees from a number of other contractors on site. I am informed by Dale Wickenden that he saw Jim Tatlock, Viva Refining Operator and AWU delegate, attend the meeting. I was also informed by Vin Todd, Viva Refining Security Supervisor, that he saw a number of people present not known to him. Mr Todd told me that one person who was known to him and was present was Jurgen (I am not sure of his second name) of USI Pty Ltd, who he understood to be an AMWU delegate who had been working within the Refinery on a turnaround being conducted by LyondellBasell.
2. I observed that Gavin Penn (AWU), Sam Wood (who is an organiser of the AWU) and Tony Hynds (AMWU) were in attendance at the meeting. Messrs Penn, Wood and Hynds addressed the persons present for about 30 minutes in total. I observed all three at various times in the meeting address the meeting. I observed a show of hands from the meeting.
3. At approximately 6.40am, I observed partly on the computer monitor within the gatehouse and partly directly, a group of about 150 people moving and commencing a picket just prior to the railway bridge at the entrance to the Refinery, on Refinery Road, which blocked site access for motor vehicles. I observed Messrs Penn, Wood and Hynds standing with others in the group of picketers.
4. Since then, and with some exceptions, motor vehicles including trucks, buses and motor cars, have been unable to get through the blockade. Trucks actually blocked included oil tanker trucks intending to be loaded with refined oil product, trucks delivering crude condensate and trucks intending to load bitumen.
5. I am informed by Greg Mawson of UGL and Stephen Roberts, UGL's Site Manager, that about 50 UGL maintenance employees were on site and ready to work during the course of 5 October, but chose to leave when the picket formed. A bus carrying UGL maintenance employees was allowed through the picket line in order to exit the Refinery. So far as I am aware, no UGL maintenance employees worked at the Refinery on this day.
6. I am told by David Healy, Senior IR Advisor of WoodGroup PSN, another contractor involved in the Turnaround, that approximately 8 to 12 employees of WoodGroup PSN has received threats and were fearful of consequences of remaining on site.
7. The usual shift start time for directly employed maintenance crews at the Refinery is 8.00 am. About 20 Viva Refinery maintenance trades employees were prior to this time in contractor car park 1. I am told by Kerrin Thompson and believe that these employees claimed to be fearful of entering the Refinery by crossing the picket and fearful of leaving the car park. Kerrin Thompson told me that she had been in contact with the three union delegates of the Viva Energy trades group to inform them that they could gain entry to the Refinery at an alternative spot.
8. Dale Wickenden told me during the course of the morning that he saw some of the persons in the picket move to other gates around the Refinery so that the picket had spread to the other entry points.
9. During the day, I observed via security monitors vehicles being parked across the driveways at road entry points. I am told by Dale Wickenden that the vehicles were later cleared by the police and that some had returned.
10. I observed a picketer bringing camping chairs to the picket. I am told by Dale Wickenden that he saw other picketers had brought wooden pallets and other materials.
11. I was told by Dale Wickenden at about 4.30 pm that picketers have been affixing chains and locks to Refinery gates. I believe that steps will be taken to remove any such chains and locks because, amongst other things, they would pose a significant safety risk.
12. Exhibited to this affidavit and marked "JDU-5" is a plan of the Refinery with photographs of the picket, which have been inserted by Vin Todd, showing the picket at three points - the Main Gate, Lowe Street and North West Gate.
13. I am told by John Begg, Viva Energy Terminals Operations Coordinator, that:

(a) about 40 to 50 trucks unable to pick up and deliver product at the Refinery during the course of 5 October 2015.

(b) These included carriers on behalf of Fulton Hogan and Boral, each of which company has contracts with the Viva Group for supply of bitumen.

(c) These also included tanker trucks that were due to collect refined products at the Refinery under a contract with Toll Group.

(d) Some of the tankers unable to enter were Toll Group tankers operating in connection with contracts with Origin Energy for the supply of condensate. These tankers were diverted to Mobil and therefore the trade was lost to Viva Group.

(e) Four smaller customers of Viva Group, being Mortimer Petroleum, Matthews Petroleum, Wilken Bulk Haulage and Mini-Tankers Refuelling Solutions, were amongst the group unable to gain entry to collect product at the gantry within the Refinery. These smaller customers do not have access to any other source of supply.

1. At the end of the day, 5 October 2016, I observed a caravan with an AMWU logo at the picket site at contractor car park 1.[4]

5 I have also had regard to Exhibit JDU6, which is an article which appeared in the Geelong Advertiser of yesterday's date which relevantly states:

Australian Workers' Union state organiser Gavin Penn said the union wants members back at work "as soon as possible" but only after all concerns have been addressed.

"We're not here to play bits and pieces, we want the place fixed and that's it," he said.

"It's a dangerous, dangerous, environment to work in so these people are going to have to be 100 per cent convinced that they know they can go home to their wife, kids or partners (before they return to work)."

The workers have had a coffee van on site since early Wednesday morning with heaters and portable toilets also organised.

The action is ongoing and the group says it is willing to camp out overnight if it has to, with Mr Penn saying "We're not going anywhere".[5]

6 Also, at paragraph 67, Mr De Unamuno deposes that he is informed by Thys Heyns, the general manager of the plaintiff, that he could not gain entry to the refinery via Refinery Road this day as he had been blocked by Gavin Penn, AWU organiser, and others on the picket.[6] The evidence strongly supports a finding, even on an interlocutory basis, that the picketing activities are having a significant adverse commercial impact upon the plaintiff's normal business operations. Mr White advanced no submission of the contrary.

7 The main point of contention agitated in argument today is whether a representative order should be made directed to the individuals who are engaging in picketing activities. Mr White did not challenge the Court's power to make such an order.[7] The judgments of Kyrou J in McDonald's Australia Ltd v Watson,[8] and Bongiorno JA in Super A-Mart Pty Ltd v National Union of Workers & Ors,[9] are clear authority for the proposition that the Court has the power to make an order of the type sought by the plaintiff. In particular, the judgment of Bongiorno JA was made in the context of an application for a representative order in respect of picketing activities being undertaken at a distribution centre. In that case, Bongiorno JA relevantly held:

1. The purpose of RSC O 18 is to facilitate the administration of justice by enabling a party to obtain a binding determination on behalf of or against a number of people in a single action rather than having to undertake separate actions: Carnie v Esanda Finance Corporation Limited.
2. The only determinant of the appropriateness of a representative order are that there are numerous persons and that they have the same interest in the proceeding. It is a simple rule, capable of meeting many situations: Carnie.
3. Mr Fetter, of counsel for the union, argued strongly that the difficulties in the way of identifying the parties to be represented in this case meant that the jurisdiction of the Court to make the order was lacking. I disagree. It is not identification that is vital, it is commonality of interest. Here the union lent its authority to the activities of the picketers by permitting its banners, gazebos and paraphernalia to be associated with the picket. Indeed it admitted as much in the letter to which I have referred. That it had a common purpose with them is the only inference open from its failure to dispute any of the evidence put forward by the plaintiff. It could have denied that it sanctioned the picket. It could have denied that the picket has used its paraphernalia with its approval and consent. It did neither.
4. I am satisfied that the first defendant had a common interest with those persons now described in the draft order proffered by the plaintiff this morning.[10]

8 The judgment of Kyrou J, as he then was, related to claims in trespass and nuisance against a group of protesters who were obstructing the construction of a McDonald's restaurant in Tecoma. Kyrou J relevantly held:

1. In Amos, Hunt J stated that in an action for tort, the application of the rules for representative orders requires that every person to be represented and against whom judgment may be entered must be under 'precisely the same liability in respect of the claim for which the action is brought.' However, in Carnie, Mason CJ, Deane and Dawson JJ stated that it has been recognised that persons 'having separate causes of action in contract or tort may have "the same interest" in proceedings to enforce those causes of action.'
2. In my opinion, it is easier to establish a commonality of interest in an action in tort against a represented group where the remedy is confined to injunctive relief.

Identity of defences is not a precondition

1. In Taubenfeld, Mackenzie J observed in the context of a defendant representative proceeding that even where there is some form of structure in an unincorporated body, the difficulty in establishing the necessary identity of interest of all persons against whom an order is sought and of eliminating the possibility of different defences is apparent.
2. In Stacey Brothers, Kenny J stated that in the context of a defendant representative proceeding, the nature of defences may be especially significant. Her Honour stated that a proceeding will generally not disclose persons in the same interest where defendants are entitled to raise different defences, although this is not an absolute rule. Whether the fact that different defences may be taken will defeat a finding of commonality of interest depends on the nature of the case, the centrality of any common questions of law and fact, and, having regard to the proceeding as a whole, the reality, importance and likely scope of the different defences.
3. In my opinion, the importance of identity of defences is diminished where a plaintiff only seeks an injunction to prevent trespass and nuisance relating to his or her land and does not seek damages.[11]

9 As to His Honour's observation at paragraph 76 that the importance of identity of defences is diminished where a plaintiff only seeks an injunction to prevent trespass and nuisance relating to his or her land and does not seek damages, it is to be noted that in the present proceedings similarly the plaintiff does not seek damages but only seeks injunctive relief.

10 Mr White advanced two principal arguments in opposing the representative orders sought by the plaintiff.[12] Both were directed at the Court refraining from exercising its discretion to make such an order.[13] Firstly he relied upon paragraph 39 of the judgment of Kenny J in Stacey Brothers Plumbing Pty Ltd v Waterco Limited,[14] which states:

In the context of a defendant (or respondent) representative proceeding, the nature of defences may be especially significant. The authorities support the proposition that a proceeding will generally not disclose persons in the same interest where defendants are entitled to raise different defences, although this is not an absolute rule. I agree with Mason P who said, in Trustees of the Roman Catholic Church v Ellis 70 NSWLR at 582 [74], that "[t]he requirement that each member of the class have identical defences may not be an absolute proposition". Whether the fact that different defences may be taken will defeat a finding of commonality of interest depends on the nature of the case, the centrality of any common questions of law and fact, and, having regard to the proceeding as a whole, the reality, importance and likely scope of the different defences.[15]

11 Mr White submitted that the plaintiff's cause of action in interference in contractual relations required consideration of each individual's subjective intention to interfere with relevant contracts.[16]

12 He submitted that that cause of action requires consideration of the individual circumstances of particular individuals sought to be covered by the representative orders.[17] There are two answers to this submission. Firstly, Kyrou J dealt specifically with paragraph 39 of Kenny J's judgment in Stacey Brothers at paragraph 76 of his judgment on the basis that the identity of defences, amongst individuals who are to be the subject of a representative order, is diminished where, as in present case, the plaintiff does not seek damages. [18] Secondly, and importantly, it is to be noted that the plaintiff also brings a claim in nuisance. That is one of the causes of action which underpinned the representative order made by Kyrou J.

13 Mr White also submitted that the evidence in the present case does not go as far as that found to be the case by Bongiorno JA in Super A-Mart at paragraph 17.[19] That is that the union had lent its authority to the activities of the picketers by permitting its banners, gazebos and paraphernalia to be associated with the picket. First, there is clear evidence of the union being directly involved in establishing and maintaining the picket. Second, the evidence before the Court is unchallenged in circumstances where the defendants could have sought an opportunity to file answering material. The unchallenged evidence before the Court supports the same finding as made by Bongiorno JA, that is that the defendants have lent their authority to the activities of the picketers.

14 Mr White stressed the seriousness of the Court taking the step of making a representative order directed to individuals and the consequences which can flow from such an order.[20] I am mindful of the serious step of making such an order. However, I am satisfied that in the present case the evidence before the Court warrants taking that serious step. In doing so I have also had regard to the terms of Rule 18.04(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which provides that in the case of a representative order the judgment order or orders shall not be enforced against a person not a party to the proceeding except by leave of the court.

15 I will not make an order in the terms of paragraph 2(b) of the draft order submitted by the plaintiffs. That order sought a representative order, which operated in respect of persons who may at any future time attend at the site and participate in or constitute themselves or any vehicle in their control as part of such a picket line, blockade or protest assembly. The terms of that order, to the best of my knowledge, go further than any representative order which has been made by this Court. It certainly goes further than the terms of the orders made in Watson,[21] Super A-Mart,[22] and also Doyle v Commonwealth.[23]

16 The plaintiff will, however, have liberty to apply to extend the scope of the representative order if it is minded to do so if other individuals beyond those who have been at any time since 6.30 am on Wednesday 5 October 2016 until 12.30 pm on 6 October 2016, participate in picketing activities.[24]

[1] 'Indorsement of Claim' filed 5 October 2016, [3]-[7].

[2] See Exhibit P1: Affidavit of Richard Anthony James Bunting sworn 5 October 2016; Exhibit P2: Affidavit of Jonathan De Unamuno sworn 6 October 2016.

[3] Transcript of Proceedings, Viva Energy Refining Pty Ltd v The Australian Workers' Union (Supreme Court of Victoria, S CI 2016 04059, McDonald J, 6 October 2016) T2 LL8-10.

[4] Exhibit P2: Affidavit of Jonathan De Unamuno sworn 6 October 2016, [44]-[57].

[6] Exhibit P2: Affidavit of Jonathan De Unamuno sworn 6 October 2016, [67].

[7] Transcript of Proceedings, Viva Energy Refining Pty Ltd v The Australian Workers' Union (Supreme Court of Victoria, S CI 2016 04059, McDonald J, 6 October 2016) T6 LL16-22.

[8] [2013] VSC 502 ('Watson').

[9] [2014] VSC 130 ('Super A-Mart').

[10] Ibid [15]-[18] (citations omitted).

[11] Watson [2013] VSC 502, [72]-[76] (citations omitted).

[12] Transcript of Proceedings, Viva Energy Refining Pty Ltd v The Australian Workers' Union (Supreme Court of Victoria, S CI 2016 04059, McDonald J, 6 October 2016) T6 L20 - T10 L25.

[14] [2009] FCA 438 ('Stacey Brothers').

[16] Transcript of Proceedings, Viva Energy Refining Pty Ltd v The Australian Workers' Union (Supreme Court of Victoria, S CI 2016 04059, McDonald J, 6 October 2016) T7 LL2-8.

[18] Watson [2013] VSC 502, [76].

[19] Transcript of Proceedings, Viva Energy Refining Pty Ltd v The Australian Workers' Union (Supreme Court of Victoria, S CI 2016 04059, McDonald J, 6 October 2016) T9 L21 - T10 L5.

[21] [2013] VSC 502.

[22] [2014] VSC 130.

[23] [1985] HCA 46; (1985) 156 CLR 510.

[24] See Watson [2013] VSC 502, [92]-[93].