Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 275

SUPREME COURT OF QUEENSLAND CITATION: Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 275 PARTIES: ADANI MINING PTY LTD ACN 145 455 205 (first plaintiff) CARMICHAEL RAIL NETWORK PTY LTD AS TRUSTEE FOR THE CARMICHAEL RAIL NETWORK TRUST ACN 601 738 685 (second plaintiff) v BENJAMIN WILLIAM DEVENISH PENNINGS (defendant) FILE NO: 9186 of 2020 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 11 September 2020 DELIVERED AT: Brisbane HEARING DATE: 4 September 2020 JUDGE: Martin J ORDER: 1. The applicants are to bring in minutes of order which reflect these reasons. CATCHWORDS: EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – GENERALLY – where the first applicant is in the process of developing a proposed coal mine in the northern part of the Galilee Basin – where the second applicant is the proponent and developer of a railway which would connect the first applicant’s mine to the existing rail network – where the respondent is the “principal” of the Galilee Blockade, a group which opposes the first applicant’s proposed mine on environmental grounds – where the applicants have commenced proceedings against the respondent in which the applicants seek, inter alia, damages for intimidation and conspiracy, and injunctions with respect to the use of confidential information and inducing breaches of contract – where the applicants seek prohibitory interlocutory injunctions against the respondent to: restrain the respondent from publishing certain statements, restrain the respondent from seeking to induce or procure any person to disclose -- 1 of 12 -- 2 particular information to him, and restrain the respondent from using confidential or other information obtained by him through the campaigns he leads – where the applicants adduced evidence that the respondent has caused the Galilee Blockade to: demand that Targeted Contractors terminate their agreements with the applicants or withdraw from negotiations for agreements; threaten that members of the Galilee Blockade would take Direct Action against the Targeted Contractors; encourage others to provide information, confidential or otherwise, to the Galilee Blockade; and, make public the intention to take further action with the aim of preventing the applicants from operating the mine and railway – where the respondent did not adduce any evidence – where the applicants submit that they have made out a prima facie case and that the inconvenience or injury which the applicants would be likely to suffer if the injunction ere refused, outweighs the injury which the defendant would be likely to suffer if the injunction were granted – whether the injunction should be granted EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – PROBABILITY OF SUCCESS – where the applicants adduced evidence that the Galilee Blockade encouraged persons to seek employment with the first respondent for the purpose sharing information with the Galilee Blockade – where the applicants also adduced evidence to support the conclusion that the Galilee Blockade has encouraged persons to share confidential information with the Galilee Blockade via its online platforms – where the applicants submit that this evidence supports a prima facie cause of action for inducing a breach of contract – where the applicants seek a mandatory interlocutory injunction against the respondent to compel the respondent to remove certain matters from identified social media accounts – whether the applicants have provided evidence to support a high degree of assurance that at trial it will appear that the mandatory interlocutory injunctions were rightly granted EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – ADEQUACY OF DAMAGES – where the applicants submit that respondent and the Galilee Blockade have caused damage to the applicants by: disrupting the mine and rail network operations, requiring the applicants to compensate contractors for losses; causing the applicants to negotiate with and engage replacement contractors at a higher cost; causing the applicants’ insurance premiums to increase; and, causing the applicants to increase its security budget – where the applicants submit that damages are not an adequate remedy – whether damages are an adequate remedy -- 2 of 12 -- 3 Uniform Civil Procedure Rules 1999 Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd [1991] 1 Qd R 301, applied Adani Mining Pty Ltd & Anor v Pennings [2020] QCA 169, distinguished Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 249, distinguished Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, applied Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571, cited Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473, cited Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union [2001] 1 Qd R 634, cited Longtom Pty Ltd v Oberon Shire Council [1996] NSWSC 381, cited Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, cited Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238, cited Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73, applied COUNSEL: L Kelly QC with D Pyle and M Eade for the plaintiffs The respondent appeared in person SOLICITORS: Dowd & Co for the plaintiffs The respondent appeared in person [1] The Galilee Basin covers nearly a quarter of a million square kilometres in Central Queensland. Studies confirm that there are vast quantities of thermal coal spread throughout the area. Adani Mining Pty Ltd (“Adani”) is in the process of developing a proposed coal mine in the northern part of the basin. Carmichael Rail Network Pty Ltd (“Carmichael Rail”) is the proponent and developer of a railway, approximately 200 kilometres long, which would connect the mine with the existing rail network in Central Queensland. [2] The proposed mine has attracted considerable controversy and opposition for a number of years. One of the most prominent opponents is the Galilee Blockade. It is a loose grouping of people who oppose the creation of the mine on, mainly, environmental grounds. [3] Mr Pennings is the “principal” of the Galilee Blockade. He is responsible for, among other things, social media accounts which he uses to conduct the campaign for the Galilee Blockade against the building of the mine and the railway. [4] Adani and Carmichael Rail have commenced proceedings against Mr Pennings in which they seek, among other things, damages for intimidation and conspiracy, and injunctions with respect to: -- 3 of 12 -- 4 (a) the use of confidential information, and (b) inducing breaches of contract. [5] In this application, they seek interlocutory injunctions: (a) compelling Mr Pennings to remove certain matters from identified social media accounts, (b) restraining him from publishing certain statements, (c) restraining him from seeking to induce or procure any person to disclose particular information to him, and (d) restraining him from using confidential or other information obtained by him through the campaigns mounted by him. [6] On the hearing of this application, Mr Pennings did not adduce any evidence. His argument was based on decisions given by Dalton J1 and the Court of Appeal2 concerning an ex parte application made by Adani and Carmichael Rail for a search order under Chapter 8, Part 2, Division 3 of the Uniform Civil Procedure Rules against him. Mr Pennings’ arguments based upon the search order decisions do not assist him. [7] His reliance on those decisions was misplaced. The order sought in that application was described by Dalton J as “likely to be very disruptive because it seeks to examine and interfere with the computers and other electronic devices which the respondent keeps at his home”.3 Her Honour also pointed out that, on the material before her, the loss which had been shown to have flowed from the torts alleged in those proceedings was less than $100,000.4 That has now been dealt with in some considerable detail in this application. [8] The pleadings and the evidence upon which the search order was sought were not before me. They would have been of little assistance, in any event, as it is clear that this application is based on a different statement of claim, additional causes of action, and different evidence. [9] It follows, then, that the applicants’ evidence is unchallenged and there was no reason advanced to do other than accept it. I can, therefore, be brief in my recounting of the evidence and the arguments mounted by the applicants. Interlocutory injunctions - the relevant principles [10] The principles to be applied on an application such as this for prohibitory interlocutory injunctions are well accepted.5 In order to obtain an interlocutory injunction of this type, the applicants must establish that: 1 Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 249. 2 Adani Mining Pty Ltd & Anor v Pennings [2020] QCA 169. 3 Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 249 at 8. 4 Adani Mining Pty Ltd & Anor v Pennings [2020] QSC 249 at 9. 5 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57. -- 4 of 12 -- 5 (a) they have made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiffs will be held entitled to relief, and (b) the inconvenience or injury which the plaintiffs would be likely to suffer if an injunction were refused, outweighs the injury which the defendant would be likely to suffer if an injunction were granted. [11] Each of those tests bears upon the other: “[W]hen considering whether to grant an interlocutory injunction, the issue of whether the plaintiff has made a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties’ substantive cases will often be an important consideration to be weighed in the balance … It may also be necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally.” (citations omitted)6 [12] Those are the principles which apply to prohibitory interlocutory injunctions. So far as interlocutory mandatory injunctions are concerned, I am bound by what was said in Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd,7 where the Full Court said that the relevant test was that the court needed to feel a high degree of assurance that at trial it will appear the injunction was rightly granted. The applicants’ case [13] The applicants’ case is that Mr Pennings has caused the Galilee Blockade to: (a) demand that the contractors who have agreements with the applicants terminate those agreements or withdraw from negotiations for agreements (the applicants call these the “Targeted Contractors”); (b) both threaten that members of the Galilee Blockade would occupy and obstruct the offices and worksites of the Targeted Contractors to force them to terminate or withdraw and to carry out those threats (the applicants call this “Direct Action”), (c) encourage others to provide information to the Galilee Blockade (confidential or otherwise) concerning the plans and operations of the applicants and the Targeted Contractors for the purpose of conducting Direct Action against them, (d) make public the intention to take further action with the aim of preventing the applicants from operating the mine and the rail network. [14] In order to conduct itself as the applicants allege and to engage in Direct Action against Targeted Contractors, the Galilee Blockade has created these internet platforms: 6 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at 261 [67]-[68]. 7 [1991] 1 Qd R 301. -- 5 of 12 -- 6 (a) an internet domain – “galileeblockade.net” – a publicly accessible website, (b) a Facebook page – “Galilee Blockade”, and (c) a Twitter account – “Galilee Blockade”. [15] There is unchallenged evidence that each of those platforms is controlled by, or able to be controlled by, Mr Pennings. [16] While Mr Pennings appears to be, at least, the spokesperson and strategist for the Galilee Blockade, there are unidentified persons who engage with him and the Galilee Blockade in the campaign. The breach of confidence case [17] In their statement of claim, the applicants plead: (a) the identity of the confidential information; (b) that the information has the necessary quality of confidence, (c) that the information was received by Mr Pennings or Galilee Blockade in circumstances importing an obligation of confidence, and (d) there is an actual or threatened or misuse of the information without consent. [18] The applicants possessed particular information of a confidential and valuable nature concerning the construction and operation of both the mine and the rail network. That information is appropriately protected and has not been made publicly available. Steps have been taken by the applicants to attempt to ensure that it is only disclosed to a small and identified number of persons. Those to whom it is disclosed are bound by contractual obligations of secrecy. [19] The applicants provided evidence that between January 2017 and June 2018 the Galilee Blockade encouraged persons to seek employment with Adani for the express purpose of later divulging information (including confidential information) to the Galilee Blockade. The applicants refer to this as the “Infiltration Campaign”. There is also evidence to support the prima facie conclusion that from about June 2017 to the present, Galilee Blockade has encouraged persons who might be in possession of confidential information to divulge it to the Galilee Blockade. The applicants call this the “Dob-In Campaign”. The Galilee Blockade encouraged the divulging of this type of information by asking people to email information to specified email accounts or to input information into online forms embedded in the Galilee Blockade website. [20] The applicants rely upon un-contradicted reports that Mr Pennings has said that he has almost “too much information” from insiders after the Dob-In Campaign. It is reported, and he has not denied, that he has said that he has information about who is bidding for particular types of work and that because the Galilee Blockade has that information they can use it to get the contractors “out of bed with Adani”. [21] Mr Pennings is responsible for the publication on the internet platforms referred to above of threats made against the applicants and Targeted Contractors, the Infiltration Campaign, and the Dob-In Campaign. He has also published, on his personal social media accounts, the same or similar threats. -- 6 of 12 -- 7 [22] The evidence is sufficient to demonstrate, for these purposes, the elements of an action for breach of confidence:8 (a) the applicants have identified the information with specificity, (b) the information has the necessary quality of confidence, (c) the information was received in circumstances importing an obligation of confidence, and (d) there has been an actual or threatened misuse of the information without the applicants’ consent. [23] The material relied upon by the applicants is sufficient to demonstrate that there is a likelihood that either or both of the applicants will suffer loss or damage in the future if confidential information is disclosed and is used by Mr Pennings and Galilee Blockade for the purpose of harming the applicants. The information would allow members of Galilee Blockade to identify targets for activity and to disrupt construction activities at worksites. This has already, on the material relied upon, occurred on over 50 occasions. [24] I am satisfied that the evidence supports to the necessary standard the conclusion that Mr Pennings by himself, and with others, has misused and will, unless restrained, continue to misuse confidential information with the purpose of frustrating or terminating the development of the mine and rail network. Inducing Breach of Contract [25] The elements of the cause of action for inducing a breach of contract are:9 (a) there is a contract between a plaintiff and third party which has been breached by that third party, (b) the defendant has induced or procured the breach with knowledge (either actual or with reckless indifference to the result) that the breach was being procured, and (c) the plaintiff has suffered loss and damage. [26] The applicants rely, for this cause of action, on the same unchallenged evidence in the cause of action for breach of confidence. [27] The relief sought by the applicants is mandatory in nature. It would require Mr Pennings to remove statements which have already been published on the social media accounts referred to above – particularly those concerning the Dob-In Campaign. The relief sought would also restrain him from publishing any statements promoting that particular campaign. 8 See Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 at 87. 9 See generally Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473. -- 7 of 12 -- 8 [28] Whether an injunction of this kind should be made was considered by Chesterman J in Kestrel Coal Pty Ltd v Construction Forestry Mining and Energy Union,10. I respectfully adopt what his Honour said: “[28] … Whether the court should enjoin apprehended future conduct depends upon whether the plaintiff shows a sufficient need for the protection of an injunction. The degree of likelihood that the conduct will is obviously very relevant but no fixed degree of persuasion that the conduct will occur is necessary. The decision whether or not to restrain the commission of future acts will depend upon an amalgam of factors which have to be considered and weighed. These include as well as the likelihood of the conduct occurring, the damage the plaintiff will suffer if it does occur and the hardship or inconvenience the defendant will suffer if the injunction is granted. A lesser likelihood of the conduct’s occurrence will justify the grant of an injunction where the plaintiff will suffer great loss if the conduct does occur and the defendant will not be put out by the injunction.” [29] The Dob-In Campaign is still being promoted on the social media accounts and the means by which information with respect to contractors may be transmitted is still available. This information has been used to the detriment of the applicants. Mr Pennings is quoted in an online news article published by the Australian Broadcasting Corporation as having said: “We know all sorts of information, because people who work for these companies have been brave enough and concerned citizens. We know who is bidding for the PE pipeline for Adani’s mine, who wants to dig the pipeline, and put it towards the dewatering dam, who’s going to be doing the box cut for the mine. We’re going to let those companies know that we’ve got the information and we expect them to get out of bed with Adani.” [30] Mr Pennings is quoted in an online news article published by The Fifth Estate as follows: “Galilee Blockade used direct action to kill off Adani’s massive $2.6 billion contract with Downer to build and operate their Carmichael mine. Adani is now negotiating multiple smaller contracts and we’re onto them. Both employees and corporate rivals are leaking valuable information to us on who is in bed with Adani.” [31] The protest activity undertaken by the Galilee Blockade has led to at least three contractors withdrawing. The information published on the social media accounts reinforces that the Galilee Blockade is determined to continue to obtain confidential information and to use it, and other information, to place pressure upon contractors to either withdraw from negotiations or to withdraw from contracts. The evidence relating to the conduct of Mr Pennings and the Galilee Blockade allows for an 10 [2001] 1 Qd R 634 at 642-643. -- 8 of 12 -- 9 inference to be drawn that, unless required to remove the statements complained of, they will remain on the social media accounts and will be acted upon by Mr Pennings and the Galilee Blockade. Intimidation [32] The elements of the tort of intimidation are:11 (a) that a person intends to injure a plaintiff, (b) that, in order to do so, the person threatens third parties that an unlawful act will be committed against them unless they refrain from dealing with the plaintiff, and (c) the third party was induced to refrain from exercising its legal rights to deal with the plaintiff. [33] The evidence is sufficient to demonstrate for these purposes that through the social media accounts referred to above, by letters sent to Targeted Contractors and through representations provided to media outlets, Mr Pennings has sought, and continues to seek, to permanently frustrate the development of the mine and the rail network. He has, through the means referred to above, demanded that unless Targeted Contractors withdraw from contracts or negotiations with the applicants then those contractors would be subject to Direct Action. [34] The applicants have provided un-contradicted evidence that large contractors and suppliers have been the target of demands and threats and that some of those threats have been fulfilled through action being taken against contractors such as: Downer Group, AECOM, and Greyhound Australia. There is also evidence that threats and demands are being or have recently been made against companies such as BMD and AON. Mr Pennings has said, for example, through the social media accounts, that similar tactics will be used against any Targeted Contractor. [35] All the material tends to the conclusion (at a level of satisfaction sufficient for these proceedings) that Mr Pennings has committed and, unless restrained, will commit the tort of intimidation. Conspiracy [36] In order to establish that the tort of conspiracy has been committed, a plaintiff must demonstrate that: (a) there has been an agreement between at least two people, (b) the agreement was to injure someone, (c) the agreement was put into effect in whole or in part, and (d) the plaintiff has suffered some pecuniary loss as a result of the action taken under the agreement. 11 See generally Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2014) 45 VR 571. -- 9 of 12 -- 10 [37] The applicants argue that it can be inferred from the conduct of the respondent and other members of Galilee Blockade that these elements are satisfied. The inference that can be drawn, so it was argued, from the representations made on the social media accounts, together with certain identified overt acts. The agreement or understanding relied upon by the applicants is said to have existed between Mr Pennings and at least one other person to do the following: (a) procure or induce persons to disclose information (confidential or otherwise) to them, (b) induce third parties who are in negotiations with the applicants to withdraw from them or to cease working for the applicants, (c) injure the plaintiffs through the frustration and ultimate cessation of the development of the mine and the rail network, and (d) harm the plaintiffs by employing unlawful means such as breach of confidence, inducing breaches of contract and other matters. [38] Mr Pennings is reported to have said that he works within a secretive network and a core group of persons and that their purpose is to harm the applicants. The disclosure of information to the Galilee Blockade could not, the applicants say, be done otherwise than for the sole or predominant purpose of injuring the applicants. The agreement reached, it is said, has been executed through the Infiltration Campaign, the Dob-In Campaigns and overt acts directed at Targeted Contractors. The evidence is that there has been a termination of negotiations with the Downer Group and Greyhound Australia and a termination of a services contract with AECOM. This, the applicants say, came about as a result of the conspiracy and other unlawful activities. [39] The applicants argue that there is a need for an interlocutory injunction with respect to the alleged conspiracy because it is a continuing one and the actions and statements of Mr Pennings all point towards an intention to continue to act in the same way as he has been acting for some time. The capacity to make an order of this kind was recognised in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3).12 Damage caused to the applicants [40] The damage alleged to have been caused by the actions of Mr Pennings and the Galilee Blockade may be summarised in the following way: (a) where there has been disruption caused by protest activity at the mine or with respect to the rail network, then the applicants are usually contractually bound to compensate their contractors for any losses or disruption, (b) the applicants have been required, through the disengagement by three contractors, to negotiate with and engage replacement contractors – usually at a higher cost, (c) the withdrawal from negotiations by Downer Group had the effect that a modification of the mine plans had to be undertaken and a number of replacement contractors were engaged to replace Downer Group with the result that there was an additional cost to Adani of some millions of dollars, 12 (1998) 195 CLR 1 at 31-33 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ. -- 10 of 12 -- 11 (d) the applicants’ insurance premium costs have increased by over 400 per cent, and (e) the applicants’ security budget has, as a direct result of the activities of the Galilee Blockade, increased from about $1 million to approximately $5 million. Are damages an adequate remedy? [41] The conduct alleged against Mr Pennings has, on the applicants’ case, resulted in a loss of many millions of dollars to the applicants. Should they be successful in this matter then the potential size of an award of damages would, on the material, be beyond Mr Pennings. There is nothing to suggest that an individual in his circumstances could make good the damage which is said to have been caused. [42] Further, the evidence permits the inference to be drawn that the conduct will, if not restrained, continue. The damage caused will continue and increase. [43] Finally, it may be impossible to accurately calculate the cost impact on the applicants. The loss of commercial relationships and the requirement to operate in a less competitive contracting environment means that the true extent of the quantum is not “instantly obvious”.13 Damages are not an adequate remedy. Balance of convenience [44] The balance of convenience clearly favours the granting of relief. The plaintiffs have a good case against Mr Pennings and there will be no prejudice to him should orders be made which, effectively, require him to act in a lawful way. The injunction sought will have no financial repercussion for Mr Pennings but, if they are not made, the losses to the applicants will be very substantial. [45] The injunctions sought do not seek to, nor would they, have any effect on any business or undertaking of Mr Pennings, nor do they restrict his right, or any other member of Galilee Blockade, to participate in lawful protest. Has there been delay? [46] Delay can be a relevant factor in the granting of interlocutory relief, especially where a person is said to have been causing a detriment for a period of time. The applicants say that it was not until September 2019 when Mr Pennings made representations on an ABC program that he had obtained sensitive and confidential information that part of their cause of action was established. [47] It is not said, and could not reasonably be said, by Mr Pennings that he has suffered any detriment as a result of any delay. Rather, the passage of time has simply meant that he has been able to continue his campaign against the applicants. Conclusions and orders [48] The applicants have shown a prima facie case in respect of the prohibitory interlocutory injunctions they seek. They have also provided evidence to support a 13 Longtom Pty Ltd v Oberon Shire Council [1996] NSWSC 381. -- 11 of 12 -- 12 high degree of assurance that, at trial, it will appear that the mandatory interlocutory injunctions were rightly granted. [49] The balance of convenience favours the applicants. [50] I will make orders in the terms sought by the applicants. They are to bring in appropriate minutes. -- 12 of 12 --