Lawful protest v obstruction and besetting
19 Many decisions of both this Court and other Courts address the circumstances in which interlocutory injunctive relief that may be granted in facts broadly comparable to those presented in this case.
20 If the form of the interlocutory order as initially sought is left to one side, it is common ground that a distinction must necessarily be drawn between the lawful conduct which the CFMEU and its officers can continue to undertake as opposed to that which attracts injunctive relief. The case for the CFMEU is that its conduct has not trespassed beyond lawful picketing or protesting. The case for Ralan St Leonards is that the CFMEU may have initially been engaged in lawful protest. But, says Ralan St Leonards, in more recent days, the CFMEU has stepped over the line and has engaged in conduct which has hindered or impeded access to the site by both vehicles and its workers. Ralan St Leonards maintains that it is entitled to interlocutory relief as there is a serious question to be tried and that the balance of convenience is in its favour.
21 At common law, picketing is not necessarily unlawful but may become so if it involves obstruction and "besetting": Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767 per Mason JA. "Besetting" includes 'the occupation of a roadway or passageway through which persons wish to travel, so as to cause those persons to hesitate through fear to proceed, or, if they do proceed, to do so only with fear for their own safety or the safety of their property': Australian Builders' Labourers' Federated Union of Workers (WA Branch) v J-Corp Pty Limited (1993) 42 FCR 452 at 457 per Lockhart and Gummow JJ.
22 One authority which canvasses the difficulties in granting injunctive relief but also identifies the circumstances in which such relief is appropriate is Barloworld Coatings (Aust) Pty Ltd v Australian Liquor, Hospitality & Miscellaneous Workers Union [2001] NSWSC 826, (2001) 108 IR 107. Bryson J there helpfully identified the "important basic values" involved in resolving a dispute as to when conduct trespasses into the realm of unlawful conduct as follows:
[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: (2001) 108 IR 107 at 111.
His Honour went on to refer to the reluctance of Courts of Equity to attempt to control picketing by way of injunctions and the reluctance "to use equitable remedies in disputes of an industrial nature" as follows:
[13] …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…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…
[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…: (2001) 108 IR 107 at 111-112.
His Honour then went on to address the question as to when picketing becomes tortious as follows:
[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…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…"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…: (2001) 108 IR 107 at 112-113.
This decision has, not surprisingly, been followed and applied: see Saint-Gobain Warehousing Pty Ltd v National Union of Workers [2006] NSWSC 1210 at [9], (2006) 158 IR 80 at 82 per Barrett J.