VISY BOARD PTY LTD & ANOR v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION & ORS

Visy Board Pty Ltd (First Plaintiff) Visy Paper Pty Ltd (Second Plaintiff) PARTIES : Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (First Defendant) Brian Henderson (Second Defendant) Basil King (Third Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr DP Robinson / Mr Hatcher (Plaintiffs) Mr S Crawshaw SC / Mr Warburton (First, Second & Third Defendants) SOLICITORS : Blake Dawson Waldron (Plaintiffs) Turner Freeman (First, Second & Third Defendants) CATCHWORDS : INJUNCTION - Ex parte application - Necessity for full disclosure - INJUNCTION - Discretion - Industrial dispute - Criminal & Tortious conduct - Concurrent application to Industrial Relations Commission in respect of industrial action - WORDS & PHRASES - Industrial action - Picketing. ACTS CITED : Workplace Relations Act 1996 (Cth) Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia & Ors (1998) 82 IR 237; Thomas A Edison Limited v Bullock (1912) 15 CLR 679; Town and Country Sport Resorts (Holdings) Pty Ltd & Ors v Partnership Pacific Limited (1988) 20 FCR 540; Bentley v Nelson [1963] WAR 89; Gilfillan v Gilfillan [1973] 6 SASR 330; Barneys Blu-Crete Pty Ltd v Australian Workers Union (1979) 43 FLR 457; CASES CITED : Bennett v Excelsior Land Investment & Building Company Limited (1893) 14 NSWR (Eq) 179; Harry M Miller Attractions Pty Ltd & Ors v Actors and Announcers Equity Association of Australia & Anor (1970) 1 NSWR 614; Slattery & Ors v Public Service Board [1893] 3 NSWLR 41; Mahony v Industrial Registrar of New South Wales [1984] 3 NSWLR 315; Australian Broadcasting Corporation v Australian Public Sector and Broadcasting Union & Ors (unreported, 18 March 1991, Kearney J); Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15; Australian Builders Labourers Federal Union of Australia, Western Australian Branch v J Corp Pty Ltd (1993) 114 ALR 551. DECISION : Injuctions continued. Special Order as to costs.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J FRIDAY 16 JULY 1999 11677/99 - VISY BOARD PTY LTD & ANOR v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION & ORS JUDGMENT 1 HIS HONOUR: On 13 July, last Tuesday, application was made to me ex parte for injunctions to restrain the defendants engaging in various forms of tortious and criminal conduct, including public nuisance, intimidation, assault and malicious damage to property. I granted those injunctions because I was satisfied on the evidence then presented that the defendants were acting in combination in the sense that they were all associating together outside the plaintiffs' various premises in furtherance of an industrial dispute, and some of them were engaging in particular acts of the kind referred to by way of physically blocking access to and from some of the premises, throwing missiles, interfering with the free passage of vehicles on public roads, (for example, by removing keys from the ignition of vehicles), cutting and spiking motor vehicle tyres, deliberately scratching motor vehicles, verbal abuse, and so on. These activities were in conjunction with a picket formed outside the plaintiffs' premises by certain of its employees, members of the first defendant, who are presently and have for some time been on strike in support of a claim for increased wages and conditions. The targets of their activities were other employees who were continuing to work, or seeking to do so, and suppliers and carriers of goods to and from the plaintiffs' premises. 2 A large number of affidavits were before me and these were supplemented by video tape evidence taken at the scenes. Mr Robinson, who appeared for the plaintiffs, also tendered Ex A which consisted of three notices of intended industrial action dated 2 June 1999 relating to the plaintiffs' different premises, and he drew my attention to the provisions of s 166A of the Workplace Relations Act (Cth) 1996 (the Act) and to the judgment of Wood CJ at CL in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia & Ors (1998) 82 IR 237. Having granted the ex parte injunctions, I granted leave to the plaintiffs to serve short notice of the summons which I made returnable for 2 pm the following day, 14 July 1999. I should add that the proceedings before me on Tuesday 13 July commenced at 11.03 am and concluded at 12.50 pm. 3 On the return of the summons at 2 pm on Wednesday 14 July 1999, Mr Crawshaw SC and Mr Winters appeared for the first, second and third defendants, and there was no appearance for or on behalf of the other defendants. Further affidavits were filed and read on behalf of the plaintiffs showing in more detail the conduct complained of and two damaged tyres and a number of tyre spikes were also tendered, (Exs F and G). In addition, the plaintiffs tendered letters from the first defendant to the first plaintiff dated 15 April 1999 and 12 May 1999, being Notices pursuant to s 170MI of the Act of an intention to try and reach a Certified Agreement pursuant to Pt VIB of the Act. 4 No evidence was led to contradict any of the evidence led by the plaintiffs, but on behalf of the defendants Mr Crawshaw tendered Ex 1, which was a copy of an Application to the Australian Industrial Relations Commission (the Commission) for an Order to Stop or Prevent Industrial Action under s 127 of the Act, which the date stamp from the Australian Industrial Registry New South Wales indicated was apparently filed at about 11.30 am. 5 Mr Crawshaw then made three main submissions as to why I should dissolve or not continue the existing injunctions. Firstly, he submitted that the first defendant was wrongly named, the correct defendant being the federal body and not the New South Wales Branch. This matter has now been rectified by a consent amendment of the summons which was made yesterday, and is no longer an issue. 6 His second submission was that there was no evidence of sufficient weight to link the first, second and third defendants with the specific acts which were the subject of evidence, or with the unlawful acts, and I should not grant injunctions against persons who were not the subject of evidence of particular acts. I dealt with this matter in some short detail in my judgment on that afternoon and I see no reason to change what I said then. 7 The third submission of Mr Crawshaw was that the injunction should be dissolved because full disclosure had not been made on the ex parte application in that I had not been informed of the Application under s 127. The plaintiffs' representatives sought time to deal with that submission and I accordingly continued the injunction until 5 pm yesterday, 15 July 1999, and stood the matter over until 2 pm. 8 When the matter came before me yesterday, Mr Warburton appeared for the first, second and third defendants. Once again there was no appearance for any of the other defendants, although affidavits of service were filed in court which, without reading them all in detail, I am informed establish that thirty-five of the other defendants have been personally served with the summons. There were some further affidavits read and no evidence of any change of conditions at the site. In addition to adopting the submissions of Mr Crawshaw on the previous day, Mr Warburton made two main submissions. 9 Firstly, he again submitted the injunction should be dissolved or not continued because of non-disclosure on the ex parte application, and secondly, that the injunction should be refused on discretionary grounds because of the well-established reluctance of the Common Law and Equity courts to become involved in industrial disputes, and their preference for leaving the resolution of such disputes to the specialised industrial tribunals. 10 The application under s 127 sought orders that the relevant employees cease and refrain from industrial action in the form of any strike, restriction or ban or other limitation and make themselves available for work as required by the company in accordance with the relevant award. There were supplementary orders sought to give effect to the main orders. 11 The grounds of the application were set out and referred to the employees of the plaintiffs, the majority of whom are members of the first defendant, commencing strike action on 8 July 1999 and also commencing a picket line while the strike action was continuing. Paragraphs 6, 7 and 8 were as follows: "6. Representatives of the AFMEPKIU and certain employees present on the picket lines have refused, and continue to refuse, access to or egress from the Smithfield operation. Without the direct assistance of the New South Wales Police access to the Smithfield operation, and egress from that operation is almost impossible. 7. Representatives of the AFMEPKIU and / or certain Employees present on the picket lines have caused damaged (sic) to the motor vehicles attempting to enter and leave the Smithfield operation. 8. Representatives of the AFMEPKIU and / or certain Employees have made threats to the life and personal safety or health of employees of the Company who have continued to perform work at the Smithfield operation. Such threats have also been made to contractors, and employees of contractors to the Company who have sought access to the Smithfield operation in the course of duties."

12 In an attempted explanation for the failure to disclose this application when seeking the ex parte injunction, there was an affidavit from Helen McKenzie, solicitor for the plaintiffs, in which she said, inter alia, that the sole purpose in seeking the injunction was to remove the illegal pickets and end other unlawful conduct relating thereto with the object of securing unimpeded access to the plaintiff's premises, and that the purpose of the application under s 127 was to secure a resumption of work by the striking employees. She went on: "The definition of industrial action in the Act (section 4) does not in my view, include participation in a picket and accordingly, the Commission does not have jurisdiction to make orders in respect of the conduct of pickets (whether legal or illegal)."

13 It was also her view that proceedings in this Court were quite separate and unrelated to the decision by the plaintiffs to attempt to achieve cessation of the strike and resumption of normal work by the s 127 application. She said it was not her intention to mislead the Court or withhold relevant information, that it was only after the commencement of the proceedings before me that the s 127 application was finalised and filed with the Commission, and accordingly that counsel appearing for the plaintiffs had not been instructed that such application had been filed. 14 Mr Robinson, who appeared for the plaintiffs, said, and I accept, he did not know of the application to the Commission. He also said if he had known, he would have disclosed it. 15 I shall consider later in this judgment whether the orders sought or the powers of the Commission under s 127 extend to the type of conduct complained of in these proceedings, but I have already drawn attention to the fact that reference to the conduct complained of in these proceedings was included in the paragraphs I have quoted from the s 127 application. 16 The principle as to the duty of disclosure when seeking ex parte relief was authoritatively stated by Isaacs J in Thomas A Edison Limited v Bullock (1912) 15 CLR 679 at 681-2. After pointing out that as a general rule no order should be made to the prejudice of a party unless he has had the opportunity of being heard, his Honour said that in cases of urgency where the court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility, and stated the principle as being: "...it is the duty of a party asking for an injunction ex parte to bring under the notice of the court all facts material to the determination of his right to that injunction and it is no excuse for him to say he was not aware of their importance. Uberrima fides is required, and the party inducing the court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application."

17 The test is not whether the additional material would ultimately have been determinative of the judge's decision whether or not to grant the ex parte injunction, but whether the omitted material is such that the other party would have brought it forward in opposition to the grant of the injunction if he had been present. 18 The test of what material must be disclosed was similarly expressed in Town and Country Sport Resorts (Holdings) Pty Ltd & Ors v Partnership Pacific Limited (1988) 20 FCR 540 at 543. See also Ritchie: Supreme Court Procedure NSW para [28.1.1]; Bentley v Nelson [1963] WAR 89; Gilfillan v Gilfillan [1973] 6 SASR 330. 19 Mr Robinson submitted that it was not necessary to disclose matter which was not material to the grant or refusal of relief and that approach is reflected in Miss McKenzie's affidavit. But that cannot be the proper test as it throws the judgment of what is material or what might be material onto the applicant's lawyers instead of on the Court. The test of what must be disclosed is as I have indicated, such material as the opponent would have disclosed or brought forward, if present. It was not for Miss McKenzie, or any other representative of the plaintiffs, to decide whether or not the matter was such as would be determinative of the decision to grant relief. 20 Accordingly, I am satisfied that the ex parte injunction should not have been obtained at the time it was on account of the failure to make relevant disclosure. But that does not permanently or otherwise disqualify the plaintiffs from obtaining relief. In Thomas A Edison Ltd v Bullock, although his Honour was satisfied that the injunction should not have been granted ex parte, he went on to say at p 683: "This would not prevent the plaintiffs from applying de novo for an injunction upon the merits as they now appear."

21 His Honour apparently dealt immediately, and without any further initiating process, with the substantive merits of the case, although the plaintiffs were ultimately unsuccessful. 22 Likewise in Town and Country Sport Resorts (Holdings) Pty Ltd v Partnership Pacific Limited, the Full Federal Court indicated that it would be appropriate to make a fresh application, although the note at p 546 indicates that such fresh application was not successful. 23 A similar situation arose in Barneys Blu-Crete Pty Ltd v Australian Workers Union (1979) 43 FLR 457 where Northrop J said at 475: "In my opinion, those facts were not and are not relevant to the question of whether the interim injunction should have been granted or not, but in any event, the principle relied upon applies to cases where an application is made to dissolve an interim injunction. The suppression of the relevant facts does not prevent a fresh application for an injunction being heard and determined in the light of all the relevant facts,"

and he referred to Thomas A Edison Limited v Bullock . 24 The matter was also considered in this State in Bennett v Excelsior Land Investment & Building Company Limited (1893) 14 NSWR (Eq) 179 at 182 when Owen CJ in Eq said: "If the defendants were coming to dissolve an injunction the court would grant that relief if it was satisfied that there had been a suppression of a material fact, but the plaintiff is now moving the court to continue an injunction which expires today so that there is nothing to dissolve. This is a fresh application made today which the court deals with de novo upon the evidence now before it, so that the principle contended for does not apply ... Of course, I can deal with a past application so far as the costs were concerned, by making the party who obtained an order upon suppression of a material fact pay them, but such a suppression is not a bar to a plaintiff's motion for the continuation of an interim injunction."

25 Mr Robinson has submitted if I was minded to dissolve the injunction, he sought a fresh injunction in the same terms on the same material. 26 The second main submission of Mr Warburton was that the injunction should be refused on discretionary grounds because the matter is within the province of the industrial tribunal specifically constituted to deal with disputes of this nature. In this regard he drew my attention to Harry M Miller Attractions Pty Ltd & Ors v Actors and Announcers Equity Association of Australia & Anor (1970) 1 NSWR 614 at 615 where Street J said: "But, in point of discretion, it is a well-settled approach in this Court that injunctive relief will not ordinarily be granted where it can be seen that there is another tribunal particularly suited to deal with the matter in issue and having the requisite power and authority to resolve the issues between the parties."

It is, however, important to note the passage which immediately preceded this: "It may well be that in particular circumstances, whether by reason of shortage of time, or by reason of some other consideration, the aid of this Court might be appropriately made available to prevent some irremedial infringement of the rights of some individual involved in an industrial dispute or otherwise to vindicate the due observance of the ordinary principles of law which must be enforced throughout the community."

27 Similar statements were made in Slattery & Ors v Public Service Board [1983] 3 NSWLR 41; Mahony v Industrial Registrar of New South Wales [1984] 3 NSWLR 315, Australian Broadcasting Corporation v Australian Public Sector and Broadcasting Union & Ors (unreported, 18 March 1991, Kearney J), Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 24 and Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 237 at 247. 28 From these cases I deduce a general proposition that as a matter of general principle or judicial policy, the Common Law and Equity courts will refrain from interfering in industrial or other types of dispute where there is another specialist tribunal which has jurisdiction and sufficient power to provide effective relief in the matter, and it becomes necessary to consider the extent of the powers of the Commission to provide adequate relief in respect of the matters complained of. Section 127 of the Act gives the Commission power to make orders to stop or prevent "industrial action" which is defined in s 4 of the Act, and in general terms relates to bans, limitations or restrictions on the performance of work or on acceptance of or offering for work, the type of conduct often referred to as a "strike", although not limited to such conduct. Whether that definition of "industrial action" includes picketing, has apparently not been determined, although I am informed that it is the subject of a reserved decision in the Commission at the present time. 29 The answer to that question may depend on what is meant by "picketing", and for present purposes I respectfully adopt what was said by the Full Federal Court in Australian Builders Labourers Federal Union of Australia, Western Australian Branch v J Corp Pty Ltd (1993) 114 ALR 551 at 556 where other authorities are referred to, and I am satisfied that "picketing" properly so called is an orderly and peaceful collection of persons outside particular premises in an effort to persuade people not to enter the premises, the object of the picket being the communication of information; but it does not include obstruction, molestation or intimidation of such people. It involves endeavouring to persuade people to take a certain course of action. It does not include using physical force or other violence or obstruction to prevent them taking the opposite course if they are not persuaded. 30 Such picketing is not unlawful, subject to any specific statutes that may apply; and is part of the common law rights of freedom of association and freedom of speech. It is unnecessary for me to determine in these proceedings whether "industrial action" within the terms of s 4 of the Act includes picketing of such a nature, because it certainly does not include public or private nuisance by blocking public roads or access to property, and it does not include assault or malicious damage to property which constitute breaches of the criminal law and in torts law constitute trespass to the person and to goods respectively. 31 The power of the Commission under s 127 extends to making orders relating to "industrial action". It may, as I have indicated, extend to picketing in the form described above, but I can see no authority in the Commission to make orders preventing conduct such as that which is complained of here. It may be that the Commission will make orders under s 127, in which case the conduct complained of may cease; but it may be that for a variety of reasons the Commission will not make orders under s 127 thereby permitting the defendants to remain on strike and impose other bans etc, but that situation would not entitle them to engage or continue in the type of conduct here in question. 32 It was submitted on behalf of the defendants that in the nature of things when large numbers of people congregate there will be some interference with the enjoyment of life of other persons and this should be regarded as in some way a normal incident of picketing. I reject that submission. Lawful picketing does not include tortious and criminal conduct as described in this case. 33 I was also referred to s 170MT of the Act which confers certain immunity to engage in "industrial action" which is "protected action", which term is in turn defined in s 170ML and is industrial action during the bargaining period for a certified agreement engaged in for the purpose of supporting or advancing claims made in respect of the proposed agreement. Such industrial action must not involve secondary boycotts: s 170MM. It may be, in light of Ex H, that the strike action presently engaged in by the defendants is "protected action" within s 170ML. If it is, s 170MT(1) would render s 127 unavailable to the plaintiffs, but it is also important to refer to s 170MT(2) which provides: "Subject to subsection (3) (which relates to defamation) no action lies under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property."

34 If the bargaining period is still current, the subsection expressly excludes from the immunity, at least some, if not all, of the conduct complained of which has involved, or is likely to involve, personal injury or reckless destruction of, or damage to, property. Even if the bargaining period is not still current, so that the current industrial action is not protected action, the provision evinces a clear legislative intention that parties are not to enjoy any immunity or be deprived of their ordinary common law rights in respect of such types of conduct. 35 I refer again to s 166A. I have some doubt whether that section is in operation in the present case as it is within Div 7 of Pt VI (see ss 156 to 156A) which, as I read the Act, only applies to boycotts (s 156) as defined in the Trade Practices Act 1974 (s 163). 36 If the section is applicable, I am satisfied that these proceedings are not prohibited by s 166A for the reasons given by Wood CJ at CL in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia. 37 I am therefore satisfied that the ex parte injunction should not have been obtained when it was because of a failure to make a material disclosure. However, the proceedings before me on Wednesday and yesterday were not technically proceedings to dissolve the injunction but proceedings to continue the injunction which had initially been limited to expire at 5 pm on Tuesday 14 July 1999. 38 In those circumstances, it seems to me that the principle set out by Owen CJ in Bennett v Excelsior Land and some of the other cases applies. I should therefore not dissolve the existing injunction which I have extended until 12 o'clock today, but I should determine whether to continue the injunction beyond that time in light of the circumstances as they now exist, subject to any outstanding questions as to costs.

(The parties sought and were granted a short adjournment. On resumption a video tape (Ex. 2) was tendered and viewed, and counsel further addressed.) 39 Since delivering my reasons earlier this morning, I have admitted into evidence and viewed a video tape said to be taken in the last two days. The video was not strictly proved, and to that extent was not admissible, but I admitted it to ensure that no relevant evidence was omitted which could be material to determining whether the injunction should be continued. The video shows a number of trucks entering and leaving one of the plaintiffs' premises. It is not clear which premises, but nevertheless, a number of trucks entered and then a number of trucks left. There were a significant number of police present and in view of the other evidence in the case, I am by no means satisfied that those trucks would have entered or left if it had not been for the police presence and the injunctions which I granted earlier this week. 40 The second part of the video contained a number of interviews with people at the site, apparently members of the union, and probably defendants. The interviewer was not identified and the questions were what are commonly described in political circles as "Dorothy Dixers". I regard the interviews as of no value in determining the issues in this case. I therefore propose to continue the injunctions previously granted until further order. 41 The defendants other than the first, second and third, may be notified of this order in the manner set out in order 8 of 13 July 1999. (Counsel addressed on costs) 42 In relation to the costs of the proceedings, Mr Warburton on behalf of the first, second and third defendants, has submitted I should make an order in favour of those defendants for costs on an indemnity basis to uphold a very important principle, namely that full disclosure must be made when seeking ex parte relief. I agree that the principle is important and must be upheld, but as indicated by Owen CJ in Eq in Bennett v Excelsior Land, that principle can be upheld by an appropriate order for costs. 43 It seems to me that this is not an appropriate case for indemnity costs. The plaintiffs should not get any costs for making the ex parte application and should pay the costs of the appearances at Court yesterday and the day before when the material not disclosed was raised and argued. However, the plaintiffs have ultimately succeeded in obtaining a continuation of the injunction. Although there may have been good reasons for doing so, as a means of upholding the principle of full disclosure, to require the plaintiffs to present an entirely fresh case, that would have involved a considerable waste of time and money, and it cannot be ignored that the plaintiffs have succeeded on the evidence which they adduced on both the ex parte application on Tuesday and the return of the summons on Wednesday. 44 It seems to me, therefore, that the plaintiffs should get the costs of the preparation of the case in the sense of the preparing and filing of affidavits and the costs of today when they have ultimately succeeded. 45 I therefore make the following orders: As to the costs reserved on Tuesday 13 July 1999, I make no order for such costs. I order the plaintiffs to pay the first, second and third defendants' costs of the appearances at court on Wednesday 14 July and Thursday 15 July. I order the defendants to pay the plaintiffs' costs of preparation of the material, including affidavits, and the plaintiffs' costs of the appearance in Court today. Liberty to any party to apply on twenty-four hours notice. **********

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