100315804

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATE’S COURT

PARTIES SILENT VECTOR PTY LTD T/A SIZER BUILDERS

CLAIMANT

 -v-

 THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION OF WORKERS

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 4 SEPTEMBER 2002

CLAIM NO/S M 263 OF 2002

CITATION NO. 2003 WAIRC 07851

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Representation

Claimant  Mr G McCorry of Labourline – The Employment Law Specialists appeared as agent for the Claimant

Respondent Mr T Dixon (of Counsel) appeared for the Respondent

_______________________________________________________________________________

Reasons for Decision

(Given orally during and at the conclusion of the hearing, extracted from the transcript of proceedings and edited by His Worship)

Jurisdiction

1         The Claimant has brought a substantive action pursuant to section 96J of the Industrial Relations Act 1979 (the Act).  That provision enables this Court to order that a person:

(a) do any specified thing, or

(b) cease any specified activity

for the purpose of preventing any further breach of section 96C, 96D or 96E of the Act. 

2         Sections 96C, 96D, and 96E are found within Part VIA of the Act which deals with freedom of association.  Those sections make it a criminal offence in the relevant circumstances to discriminate and to do injurious acts by reason of membership or non-membership of an organisation.  A person who claims to be affected by non-compliance with those sections may bring an action under section 96J to prevent further breach.  The remedy provided is in the form of injunctive relief, albeit by force of statute.

3         This application under section 96J is in the form of a quia timet injunction based on the fear by the Claimant that there will be interference with its rights.  Accordingly, the Claimant seeks interlocutory relief in substantially the same form as the permanent relief, which it seeks by virtue of the substantive action.

4         The question, of course, is one as to whether I have power to deal with the matter on an interlocutory basis.  It is suggested by Mr McCorry that by virtue of the application of section 33 of the Local Courts Act 1904 through section 81CA of the Act that I have power to deal with the application.  Mr Dixon suggests otherwise in saying that the powers provided in section 33 of the Local Courts Act 1904 relate only to ancillary equitable relief in the making of orders in respective of substantive matters before the Local Courts.

5         In my view the powers contained in section 81CA(2) of the Act enables this Court to exercise the powers of the Local Court as if these proceedings were an action within the Local Court.  It is axiomatic that the Local Court has power to grant injunctive relief on an interlocutory and interim basis.  That power is given to preserve the subject matter of the action.  In my view, if section 33 of the Local Courts Act 1904 applies to this jurisdiction, which I find it does, it follows then that this Court has jurisdiction to deal with this application and to consider whether or not it should grant the interlocutory orders in the terms that are sought.

6         I find that I have jurisdiction to deal with this application.

Form of the Interlocutory Application

7         There is complaint made by the Respondent that the affidavits of Mr McCorry and Mr Deen are objectionable.  It says that the affidavits contain various paragraphs that offend on the basis that they are based on hearsay, unqualified opinion and unsubstantiated belief.  Having heard his submissions and having reviewed the affidavits in question, I find myself in complete agreement with Mr Dixon in his view of the affidavits.  There are parts of those affidavits that are entirely objectionable and embarrassing.

8         Mr McCorry submits that by virtue of regulation 49(5) of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000 (the regulations) this Court, in relation to all matters before it falling within general jurisdiction, is not bound by the rules of evidence and may inform itself as it thinks fit.  I disagree.  That regulation is clearly qualified in that it relates only to the trial situation.  Such is clearly provided for by the regulations.  Given that that is so, it cannot therefore apply to interlocutory proceedings such as these.  Absent any express provision to the contrary, I cannot see why the parties should not be bound by the normal rules of evidence in this interlocutory matter.  Further, given the nature of the application that is made, the effect of the successful outcome of the same would result in the limitation of what is otherwise a legal right of the Respondent.  In the circumstances it is all the more important that there be strict compliance with the rules of evidence.  That is so to avoid any possible injustice.  At the end of the day fairness and the avoidance of injustice is what all courts must desire, and the situation in this circumstance is no different.

9         I accordingly accede to Mr Dixon's application in striking out certain parts of the affidavit.  I will now move to specify those parts of the affidavits that will be struck out.  In doing so I adopt his views, which I find to be correct, in relation to the affidavits.

10     Moving to the affidavit of Paul Deen sworn on 2 September 2002, I strike out paragraph 4.  I also strike out paragraph 5, 6, 7, 9, 10, 11, 12 and 13.  Paragraphs 23 and 24 are also struck out.

11     Moving to Mr McCorry's affidavit, I strike out paragraph 5.  There was a suggestion made by Mr Dixon that paragraph 14 was objectionable, but having reviewed it, it does not seem to me to be objectionable.  I do not propose to strike that out.  I do, however, propose to strike out paragraphs 21, 22 and 23 upon the basis put to me by Mr Dixon with which I agree.

12     Mr Dixon was of the view that not only should those paragraphs be struck out, but indeed the whole of the affidavits be removed from the court file because they present as being objectionable in their state.  I disagree, with all due respect to him.  The reason why I disagree is that there are certain aspects of the affidavits in their form, with the paragraphs struck out, that provide material evidence in relation to the matter and are pertinent.  They ought to be considered by the Court, and for those reasons the affidavits should remain on the file with the offending paragraphs struck out.

13     Those are the orders that I make.

Application for Interlocutory Injunction

14     The Claimant seeks:

1)     That until the hearing and determination of this matter further order, the Respondent be restrained … from-

(a)  without prior leave of the court and under such terms as to supervision as the court considers appropriate, entering any of the premises occupied by the claimant wherein employees of Ahayca Holdings Pty Ltd t/a Bulls Bricklaying Services are working or are contracted to work for the claimant; and

(b)   directing, procuring, advising, inciting, encouraging and/or authorising its members to stop performing the work which their contracts of employment require on or in respect of any premises occupied by the claimant and wherein the employees of Ahayca Holdings Pty Ltd t/a Bull's Bricklaying Services are working or are contracted to work for the claimant.

2)  Liberty to apply be reserved

15     The interlocutory application is substantially in the same form as the relief sought in paragraph 1 of the substantive claim, by which the Claimant seeks to permanently restrain the Respondent from doing those things to which I have referred.  The claim and indeed the interlocutory application are predicated on the Respondent's alleged failure to comply with sections 96C, 96D and 96E of the Act.

16     In that regard and with all due respect to the Claimant's agent, I fail to see how given the factual matrix of this case as it is before me it can be said that there has been a failure or could have been a failure to comply with sections 96C or 96D of the Act.  In that regard I concur with Mr Dixon's summation of the law in relation to the relevant provisions.  In my view section 96C does not apply because it relates solely to those who are privy to the contract of employment or, alternatively, any officer or agent of such persons.  It does not relate to a third party such as the Claimant in this matter.  Similarly section 96D has no application either because it relates to the consequences that flow to an employee within a contract of employment.  It relates to a contract between employee and employer and not to third parties such as the Claimant, as is in this case.  In my view at this stage the only possible basis for the claim and accordingly this interlocutory application is an alleged breach of section 96E of the Act.

17     To make out its claim the Claimant must establish that the Respondent union discriminated against Silent Vector Pty Ltd t/a Sizer Builders because employees of Bulls Bricklaying are not members of the union.  For the injunction application to succeed the Claimant must establish a reasonable apprehension in the mind of the applicant of further conduct of that type occurring.

18     Going to the merits of the case it is apparent that it is incumbent upon the Claimant to demonstrate a prima facie breach of section 96E of the Act.  In that regard the Claimant must put before the Court acceptable evidence going to the proof of various material facts including that Bulls Bricklaying has employees and that they are not members of the Respondent union.  The evidence from the Claimant is lacking in that regard.  There is no evidentiary material from officers of the corporate entity that trades as Bulls Bricklaying to that effect.  There is no evidence from those persons said to be employees that they are in fact employees.  The only evidence on the issue comes from the affidavit of Mr McCullough who testifies to the contrary.  Indeed his evidence suggests that, as at early August of this year, Bulls Bricklaying did not have any employees.  Clearly an inability to establish such a fact impacts upon the prima facie case that the Claimant presents to the Court.  In my view it presents the Claimant with insurmountable difficulty.

19     It is quite apparent to me that the evidentiary material in support of the Claimant's interlocutory application substantially supports the types of matters referred to in sections 96C and 96D of the Act.  However such evidence has little bearing on the matters to be considered with respect to section 96E of the Act.  I am not saying that the whole of the evidence is not applicable, but there are substantial portions of it that do not apply.

20     Further there is a dispute on the evidentiary material before me as to the dispute that arose in July of this year.  The Claimant asserts that officers of the Respondent made threats and that they were made for discriminatory purposes aimed at injuring the Claimant's interests.  The Respondent on the other hand maintains that the dispute arose out of a legitimate safety issue with which it was concerned.  In that regard it is clear from the affidavit of Mr McCorry that he took the view that what happened on Saturday 6 July 2002 related to discrimination and that the alleged safety issue was used to disguise the dispute.  It was, on his evidence, the dispute with Bulls Bricklaying that gave rise to the threats being made.  That was his perception of the events.  Indeed that is clear from his affidavit.  Mr Deen took the same view.

21     Of course, the Respondent disputes that evidence.  The affidavit of Mr McDonald in that regard reflects the Respondent’s position.  Mr McCullough was not there on the material date but in his affidavit he gives evidence of a legitimate dispute pertaining to safety.  Obviously such issues when they are in contradiction with each other cannot be easily resolved on affidavit.  It is just simply almost impossible to resolve such matters on affidavit.  Also the weight of the evidence on the issues in contest is even.  The Claimant may have well benefited from calling other witnesses or indeed presenting other evidentiary material.  I would have thought, for example, that the evidence of Mulligan and someone from Bulls Bricklaying may well have benefited the Claimant in respect of this particular application, but without such evidence it really causes the Claimant to have some difficulty.  The case is nowhere near as strong as it could have been if such evidence had been called.  In the circumstances, given that much of the evidence is oath on oath not subject to cross-examination with the weight evenly proportioned it is difficult for the Claimant to establish a prima facie case.  Even if it could be said that it could establish a prima facie case, the question remains whether, on the balance of convenience, my discretion ought to be exercised in favour of the Claimant.  In that regard there is no evidence going to the quantification of the Claimant's loss.  In my view such evidence is essentially considered in a proper exercise of my discretion in relation to this matter.  I need to know what real impact will be upon the applicant in monetary terms and other identifiable terms.  Quite frankly there is no evidence going to that issue.

22     Further, it is apparent that the alleged threats of action to follow the closure of the Perth sittings of the Royal Commission have not eventuated notwithstanding the Claimant’s contention.  Had there been such a vehement threat one would have expected on the face of it that there would have been some immediate action, but the evidentiary material before me indicates that that has not occurred.  To that extent I agree with Mr Dixon that the history militates against the Claimant's contention in that regard.

23     It is important for the Respondent to be able to carry out its legal duties to give effect to its objects and the objects of the Act.  The Court should only impede such rights when there is a clear potentiality of harm to the Claimant.  In that regard the basis for the Claimant's fear, given the state of the evidence, is based on conclusions that it has reached based on statements made.  To some extent the conclusions are reached on the basis of distrust of the Respondent and as result of supposition and conjecture.  It would be inappropriate therefore to accede to the Claimant's application for an interlocutory injunction.

24     The fact that I have reached such conclusions should not be taken by either party as an indication that I have finally determined the issues in dispute between the parties.  Clearly there remain substantive issues in dispute.  Only when the Court is cognisant of all of the material evidence tested under cross-examination, will it be able to properly determine the matter.  The evidence must be fully tested.

25     Additionally, I am of the view that, even if the circumstances were such that there was sufficient prima facie evidence to establish the application, the effect of that would be to pre‑empt the trial.  The Court should consider the practical impact of a grant of relief in such circumstances.  In that regard I refer to the decision in Carlton & United (NSW) Breweries v Bond Brewing New South Wales (1987) 76 ALR 633 at 639.  The degree of likelihood that the applicant will succeed becomes a significant factor when the practical impact of the grant of the interlocutory injunction is that the litigation is effectively determining the issue and should be brought into the balance in weighing the risk that injustice may be done in deciding the application one way rather than another.  It may well lead to injustice in those circumstances.  In that regard I refer to the decision of NWL Ltd v Woods [1979] 3 All ER 614 at 626.  It is therefore desirable to evaluate the strength of the Claimant's case for final relief.  Unless the case is so strong that it would be a waste of time and expense to let the action go to trial an injunction should be refused because to deprive the Respondent of a trial in general terms is an injustice (see Cayne v Global Natural Resources Plc [1984] 1 All ER 225 at 238.).  Effectively by determining this matter on an interlocutory basis on the terms sought by the applicant it would have the effect of pre-empting the trial.

26     Another factor to be taken into account in relation to this matter is this, that any risk that the Claimant faces in the lead up to trial in respect of this claim can be ameliorated by a claim for damages that might arise against the Respondent for any illegal conduct.  Clearly the Respondent is now on notice in respect of the claim.  The Claimant has recourse to its legal remedies in that regard.

27     For the reasons that I have stated, I refuse the application for interlocutory injunction.

G Cicchini

Industrial Magistrate