BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2000] QSC 181 [2001] 1 Qd R 472

r1 z:>3i-l-l X State Reporting x ao( 1z~ Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J BHP COAL PTY LTD ACN 010 595 721 and BHP MINERALS PTY LTD ACN 008 694 782 and BHP QUEENSLAND COAL LIMITED ARBN 010 506 073 and UMAL CONSOLIDATED PTY LTD ACN 000 767 386 and HAY POINT SERVICES PTY LTD ACN 009 836 800 and Iii 1"111 11 1·, The l.:rw Courts. Cl'nr!.!t: Strct.:l. B1·isli:111c, 0. -lllllll 1 REVtsED COPfES fS$UED State Reporting Bureau Date-?// I I er-o First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant Tclc11li11n~: f07l 32-17 -U611 F:,x: 1117l .12-17 5.5JZ -- 1 of 10 -- BHP MITSUI COAL PTY LTD ACN 009 713 875 and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION BRISBANE .. DATE 20/01/2000 JUDGMENT 2 Sixth Applicant Respondent 10 20 'Ii 3b 50 60 -- 2 of 10 -- 20012000 T9/RB28 M/T 7001-7002/2000 (Fryberg J) HIS HONOUR: This is an application by a number of companies apparently subsidiaries of the Broken Hill Proprietary Company for interim injunctions restraining the Construction, Forestry, Mining and Energy Union from directly or indirectly maintaining, authorising, continuing any authorisation of, giving effect to or enforcing or seeking to maintain, authorise, give effect to or to enforce any strike by any person being an employee of the applicants at their mines in Queensland. The evidence indicates that the first applicant is the employer of a considerable number of workers at several coalmines conducted in Queensland by operations involving the first applicant. The first applicant has a proprietary interest in some of these mines and is the operator on behalf of various joint ventures of other of the mines. Late this afternoon the first applicant received notice from various persons associated with the respondent union that the union was taking part in a national strike for 24 hours at the various coalmines. The purpose of the present application is to restrain the union from encouraging its employees to participate in that strike. Although the application suggests an intention to affect employees of the other applicants, the evidence before me does not indicate that there are in fact any employees threatening to strike other than those employed by the first applicant. 3 JUDGMENT l O ; 20 '.?.0 40 30 50 60 -- 3 of 10 -- 20012000 T9/RB28 M/T 7001-7002/2000 (Fryberg J) The applicants argue that the union has apparently committed the tort of inducing a breach of contract. It is that tort which they seek to have restrained. If the tort has not already been committed the apprehension is that it is about to be committed and certainly that would be a sufficient basis for the grant of an injunction provided it were adequately proved. The contract said to be the subject of the proposed 10 interference is the contract which the first applicant has io with each of the employees who are threatening to go on strike. It is, I think, fairly demonstrated that the union has, at least on the face of things, so conducted itself as to encourage those employees to withdraw their labour from the first applicant and to act in a way inconsistent with their contracts of employment. Putting it in the more conventional legal terms I am satisfied that the first applicant has shown the existence of a serious question to be tried. I am not satisfied that any other applicant has shown the existence of any such question. As I have said, it does not appear that any other applicant is the employer of an employee who is threatening to breach his contract. There was some suggestion made in argument by counsel on behalf of the applicants that the conduct of the union might result in a breach of or interference in the contract between the first applicant and the other applicants, but 4 JUDGMENT 1n 30 50 60 -- 4 of 10 -- 20012000 T9/RB28 M/T 7001-7002/2000 (Fryberg J) that contract has not been put before me and the evidence in respect of it is very thin indeed. That suggestion was not in the end, as I understand it, seriously pursued. The question then becomes one of the balance of convenience. On behalf of the applicants it was argued that the balance of convenience favoured granting the relief sought. It was submitted that significant loss would be suffered by the applicants if the strike continues. However, having a look at the material on behalf of the applicants does not convince me that there will be in fact significant loss suffered by them in the forthcoming 24 hours if the strike continues. The evidence of Ms Micalizzi indicates that it is extremely difficult to quantify any pecuniary loss to the applicants as a result of a strike such as the present. Ms Micalizzi, who is a chartered accountant and apparently a considerable expert in the calculation of such things, demonstrates that any loss might result to one or other of the applicants but not necessarily the first applicant and that the range of value of any loss is theoretically very large. There is no suggestion that any property of the applicants will be damaged. Rather, the suggestion seems to be, as far as pecuniary loss is concerned, that delayed production will have an effect on the financial position of the applicants. Ms Micalizzi demonstrates that this is a very speculative proposition as indeed it must be. 5 JUDGMENT 10 20 20 40 50 ~0 60 -- 5 of 10 -- 20012000 T10/SJ3 M/T 7002/2000 (Fryberg J) Mr Williams' affidavit speaks of a different sort of damage. He refers initially to the damage to Australia's reputation abroad. However, it is fair to say that not even Mr Daubney suggested that what was bad for Australia was necessarily bad for BHP. The need is in my view to demonstrate damage specifically to the applicant. There is a considerable amount of damage discussed in general terms in Mr Williams' affidavit ranging back as far as the 1970s but it seems to me that a good deal of the matter is speculative. A coal mine is a tangible asset and of course coal not mined today can be mined tomorrow. It is simply the delay factor which is the revenue factor and as far as the loss of reputation is concerned it seems to me that to proceed on an ex parte basis a good deal more evidence would be needed than has been provided to me today. While I accept that a reputation as an unreliable supplier would undoubtedly be a detrimental factor to the applicant in negotiating contracts with foreign purchasers and in its relations with foreign purchasers it is not immediately obvious to me that a 24 hour strike in the context of the present environment will necessarily have the same effect. 10 20 50 I do not think it is to be assumed that foreign purchasers are completely ignorant of the industrial systems which exist in the countries from which they purchase coal and nor do I think it should be assumed that they would be unaware of the industrial relations issues which have been referred 40 60 6 JUDGMENT -- 6 of 10 -- 20012000 T10/SJ3 M/T 7002/2000 (Fryberg J) to in the affidavit of Mr Gerard to which I was referred. Those issues are part of the working environment. Therefore, if purchasers have that knowledge it seems to me that the amount of damage which would flow from an unrestrained strike of 24 hours must be speculative indeed. As Mr Daubney pointed out, my task is to weigh the elements going to convenience in assessing the proper result on this head. Principal among those elements is the element of hardship to the competing parties. If there is not a great deal of hardship demonstrated on the evidence to the applicant, how does that compare with the position of the respondent? Mr Daubney submitted that the respondent had suffered or would suffer by the injunction, if granted, no measurable hardship at all but his submission, it seemed to me, assumed that hardship in the context of the respondent's position could only be measured in dollar terms. I am not satisfied that this is so. The respondent might well suffer hardship in terms of its relations with other 10 20 unions, its relations with its membership and its political ~o 50 and industrial bargaining position in the dispute referred to in Mr Gerard's affidavit if the injunction were to be granted. 7 JUDGMENT 60 -- 7 of 10 -- 20012000 Tll/SA2 M/T 7002/2000 (Fryberg J) I would not be prepared to infer that in fact there is a real risk that the respondent would suffer these matters. Simply the position seems to me to be that on an ex parte basis I would not be justified in drawing a contrary inference. Where does that leave the balance of convenience? In my view, the onus is on the applicant to demonstrate that there is a positive balance of convenience favouring the grant of an injunction. The onus is particularly heavy when the application is made ex parte. Mr Daubney suggested that I should give little weight to that factor because the evidence shows that union officials were notified that the application was to be brought and have not troubled to attend and, moreover, the solicitors who would normally act for the union were also given notice but the only response was that the relevant partner was on vacation. If there were any suggestion that the union were deliberately absenting itself after reasonable notice were given, that, of course, would be a most material factor but 10. 20 20 40 I am not satisfied that any such inference should be drawn 30 50 in the present case and I, in the end, did not understand Mr Daubney to be inviting me to draw it. 60 8 JUDGMENT -- 8 of 10 -- 20012000 Tll/SA2 M/T 7002/2000 (Fryberg J) The evidence, in summary, does not satisfy me that the balance of convenience favours the grant of the injunction sought. I should say that, in my view, this conforms with the approach which should be taken to applications based upon this particular tort. It is, I think, trite law that the tort was developed during the 19th century in an industrial relations climate very different from that which obtains today. The tort is hedged about with a number of technicalities and when a matter is brought on ex parte it can easily appear that the elements of the tort are satisfied in a way which would not necessarily apply should the matter be heard on a contested basis. I think Courts of general jurisdiction should be most careful in proceeding in relation to industrial disputes on the basis of this and the similar torts of intimidation and conspiracy to grant ex parte injunctions. The evidence that is presented to Courts should clearly demonstrate that damage of a significant sort will be suffered and that the balance of convenience favours avoiding the risk of that damage occurring. In my view, as I have said, the evidence in the present case does not indicate that that is the position. 9 JUDGMENT 10 20 50 60 -- 9 of 10 -- 20012000 T12/SJ3 M/T 7002/2000 (Fryberg J} The application should therefore be dismissed. However, I am prepared to give appropriate directions to enable the matter to be brought on early on notice to the respondent. By early I mean tomorrow. THE COURT ADJOURNED AT 11.06 P.M. THE COURT RESUMED AT 11.19 P.M. MR DAUBNEY: application. HIS HONOUR: Would your Honour simply dismiss the The appl1cation is dismissed. 10 JUDGMENT 10 20 50 60 -- 10 of 10 --