CFMEU v Mirvac Constructions Pty Ltd [2000] FCA 341

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application for interlocutory relief including anti-suit injunction - action in Supreme Court against union for damages and other relief - whether in respect of protected action - whether instituted without certificate under s 166A of Workplace Relations Act 1996 (Cth) - whether respondents have taken or threatened action in contravention of s 170NC - principles applicable to grant of relief - balance of convenience and other discretionary considerations.

Workplace Relations Act 1996 (Cth) ss 166A, 170MI, 170MO, 170MR, 170MT, 170NC

Construction Forestry Mining and Energy Union v Multiplex Constructions Pty Ltd [2000] FCA 101

Australian Workers' Union v Yallourn Energy [2000] FCA 65

CFMEU v Master Builders' Association of Victoria (No 1) [2000] FCA 168

Sankey v Whitlam (1978) 142 CLR 1

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

Transport Workers Union v Lee (1998) 84 FCR 60

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

v MIRVAC CONSTRUCTIONS PTY LTD (ACN 003 353 713),

CDK TECTONICS LIMITED (ACN 053 688 065)

and CONSTRUCTION ENGINEERING (AUST) PTY LTD (ACN 005 490 773)

V 80 of 2000

RYAN J

MELBOURNE

24 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V80 OF 2000

BETWEEN:	CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION APPLICANT
AND:	MIRVAC CONSTRUCTIONS PTY LTD (ACN 003 353 713) FIRST RESPONDENT CDK TECTONICS LIMITED (ACN 053 688 065) SECOND RESPONDENT CONSTRUCTION ENGINEERING (AUST) PTY LTD (ACN 005 490 773) THIRD RESPONDENT
JUDGE:	RYAN J
DATE OF ORDER:	24 MARCH 2000
WHERE MADE:	MELBOURNE

UPON THE APPLICANT ("the CFMEU") by its Counsel undertaking to the Court:

(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory undertaking or any continuation (with or without variation) thereof; and

(b) to pay the compensation referred to in (a) to the person there referred to;

AND UPON THE RESPONDENTS by their Counsel undertaking to the Court:

THAT the respondents and each of them will not, pending the hearing and determination of the application herein:

(d) other than an application for interim or interlocutory relief institute any other proceedings in any court against the CFMEU or any of its officers, employees or members in respect of any industrial action against, or affecting, the respondents or any of them which has been, or may hereafter be, taken or threatened by the CFMEU its officers, employees or members;

without giving the CFMEU at least seventy-two hours notice in writing of the step to be taken in Supreme Court proceedings No 4373 of 2000 or the institution of such other proceedings, such notice to be accompanied by a draft of the statement of claim to be filed in Supreme Court proceedings No 4373 of 2000 or, if one has been prepared, in the proposed other proceedings;

IT IS ORDERED THAT:

1. The directions hearing herein be adjourned to 26 April 2000 at 10.15 am;

2. Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V80 OF 2000

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

APPLICANT

AND:

MIRVAC CONSTRUCTIONS PTY LTD (ACN 003 353 713)

FIRST RESPONDENT

CDK TECTONICS LIMITED (ACN 053 688 065)

SECOND RESPONDENT

CONSTRUCTION ENGINEERING (AUST) PTY LTD (ACN 005 490 773)

THIRD RESPONDENT

JUDGE:	RYAN J
DATE:	24 MARCH 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The nature of the application and factual background.

1 By its amended application, the applicant, the Construction, Forestry, Mining and Energy Union ("the CFMEU"), seeks by way of interlocutory relief the following injunctions:

"1. An injunction that the employers by themselves, their servants or agents be restrained until the determination of this Application, or further order from taking or threatening to take any action to institute or continue any proceeding relating to the industrial action taken in the interlocutory period (or directing, procuring, advising, authorising, suggesting or encouraging any other person to take or threaten to take any such action).

2. An injunction that the employers by themselves, their servants or agents, be restrained until the determination of this Application, or further order, from:

(a) threatening to commence or commencing any proceedings against the Applicant, its officers, employees or members relating to the industrial action taken in the interlocutory period; and

(b) threatening to commence or commencing any proceedings against the Applicant, its officers, employees or members claiming damages or injunctive relief relating to the industrial action taken in the interlocutory period; and

3. An injunction that the Respondents by themselves, their servants or agents, be restrained until the determination of this Application, or further order, from initiating any court action against the applicant, concerning any industrial action taken by the applicant between the date of the determination of the application for interlocutory relief and the date of the determination of this application, without first giving the Applicant 48 hours written notice of intent to initiate that action and enclosing with that written notice a copy of any draft court documents relating to such action.

4. An injunction restraining the employers by themselves, their servants or agents until the determination of this Application or further order from taking any further step in the proceeding commenced by the employers in the Supreme Court of Victoria against the Applicant, being proceeding number 4377 of 2000 ("the Supreme Court action").

5. An injunction restraining the employers by themselves, their servants or agents until the determination of this Application or further order from commencing any proceedings in relation to matters referred to in paragraphs 1 and 2 of the Indorsement of the Writ in the Supreme Court action.

6. An injunction restraining the First Respondent by itself, its servants or agents until the determination of this Application or further order from

(a) taking or threatening to take any action to prevent subcontractors engaged on its sites from offering overtime to members of the Applicant who are employed by those subcontractors (or directing, procuring, advising, authorising, suggesting or encouraging any other person to take or threaten to take any such action); or

(b) by threats promises or otherwise, encouraging subcontractors to stand down or otherwise injure or prejudice the position of the employees of the subcontractors."

2 The CFMEU is presently a party to the National Building and Construction Industry Award 1990 ("the Award") made by the Australian Industrial Relations Commission ("the Commission"). The CFMEU is also a party to enterprise agreements, one with the first respondent, Mirvac Constructions Pty Ltd ("Mirvac"), the nominal expiry date of which is 30 November 2000, another with the second respondent, CDK Tectonics Ltd ("CDK") which nominally expired on 30 November 1999 and a third with the third respondent, Construction Engineering (Aust) Pty Ltd ("Construction Engineering") which nominally expired on 30 November 1997. The CFMEU has also, since 1997, entered into certified agreements with more than 2,500 sub-contractors in the building and construction industry. The great majority of those agreements passed their nominal expiry dates on or before 30 November 1999.

3 In December 1999, the CFMEU served notices under s 170MI of the Workplace Relations Act 1996 ("the Act") on those employers who were parties to certified agreements which had passed their nominal expiry date. Each notice purported to initiate a bargaining period seeking to achieve a certified agreement providing for, amongst other things, wage increases of 8 per cent per year over the nominal life of the proposed new agreement to 30 September 2002, a limitation on overtime, increased superannuation and a 36 hour week to be worked over a nine day fortnight.

4 Officials of the CFMEU have had frequent meetings with representatives of the Master Builders Association of Victoria ("MBAV") and the Construction Employers Planning Forum ("CEPF") from October 1999 to February 2000 in the course of negotiations about the claims set out in the notices under s 170MI. This paragraph occurs in an affidavit of 1 March 2000 by Toby Borgeest, a solicitor for the CFMEU:

"I am informed by Martin Kingham that, prior to the meeting which took place on 28 January 2000, he had conversations with a number of officials from at least four of the members of the CEPF. Those company officials advised Kingham that the strategy of all of the CEPF members would be to obtain orders for damages against the CFMEU, and use those orders as leverage to make the CFMEU back off in its claim for a 36 hour week. I am informed by Kingham and believe that these conversations which he had were conversations on a confidential basis with the officials referred to. Kingham is accordingly reluctant to reveal the names of those officials for fear of retribution which may be directed towards them."

5 On 5 January 2000, the CFMEU issued notices under s 170MO of the Act which were served on Construction Engineering and certain sub-contractors. Each of those notices was in the following form:

"RE: Section 170MR of the Workplace Relations Act 1996

In accordance with the above mentioned provision, we hereby put you on notice that industrial action will be taken against your company for the purpose of securing a certified agreement under Part VIB of the Workplace Relations Act 1996.

The industrial action will occur as follows:

Commencing on 11th January 2000 officers, employees and members of the union (as appropriate) will engage in industrial action by

(a) holding a stopwork meeting, and then

(b) imposing one or more of the following forms of ban or limitation on the performance of work, in rolling sequence:

(i) refusal to work overtime

(ii) work to rule or award, including strict adherence to break times

(iii) refusal to operate cranes

(iv) refusal [sic] operate excavators

(v) refusal to operate scissor lifts

(vi) bans on erection of formwork and placement of concrete

(vii) bans on painting, carpentry, non-trades work

(viii) ban on ladders

(ix) ban on mobile scaffolds refusal to perform any work at all every second Monday from the second Monday in February."

6 As foreshadowed in the notice of 5 January 2000, members of the CFMEU have taken industrial action against employers on whom the notices were served. On 14 February 2000, the CFMEU issued further notices under s 170MO which were again served on Construction Engineering and various sub-contractors. The new notices foreshadowed more extensive industrial action than that described in the earlier notices. That industrial action, it was intimated, would commence on 21 February 2000. Each of the new notices concluded with this notation:

"Please note: If your company has

(a) Already signed an interim industrial agreement with CFMEU or

(b) Has an unexpired certified agreement with CFMEU

please ignore this notice."

7 As contemplated by the later notices under s 170MO, members of the CFMEU have, since 21 February 2000, taken industrial action which the CFMEU contends is "protected action" within the meaning of s 170MT of the Act.

8 On 22 February 2000, a writ was issued out of the Supreme Court of Victoria at the instance of Mirvac, CDK and Construction Engineering. It seems that a draft copy of each of that writ, an indorsement of claim, a summons requiring attendance on an application by the plaintiffs for interlocutory relief and various affidavits in support was served on the CFMEU at its FEDFA divisional branch office. On the same day, Beach J in the Supreme Court made the following ex parte orders in the plaintiffs' action, which was later instituted as 4373 of 2000:

"Upon the Plaintiffs by their Counsel undertaking:

(a) to abide by any order as to damages in case the Court should hereafter be of opinion that the Defendant shall have sustained any by reason of this Order which the Plaintiffs ought to pay; and

(b) to issue a Writ and Indorsement and Summons in the terms annexed forthwith.

THE COURT ORDERS:

1. Until 4.30pm on 24 February 2000 or further Order, the Defendant (whether by its officers, delegates, servants, agents or howsoever otherwise) be restrained from directing, procuring, advising, authorising and/or encouraging its members (otherwise than in the exercise of the rights which the Defendant has pursuant to Division 8 of Part VIB of the Workplace Relations Act 1996) not to perform the work which their contracts of employment (with any of the Plaintiffs or with any sub-contractor engaged on the Plaintiffs' sites) required them to perform.

2. The Defendant:

(1) prepare a letter on the Defendant's letterhead signed by the State Secretary of the Defendant's Victorian Branch to be posted forthwith to the home address of each of its members employed by the Plaintiffs or working on the Plaintiffs' sites in the terms of the attached letter informing those members of the terms of this order and directing that they forthwith cease industrial action and perform the work which their contracts of employment require; and

(2) to send a copy of that letter to the solicitors for the Plaintiffs, at facsimile no. 9230 0505, marked to the attention of Ross Levin, by 5.00pm on 22 February 2000.

3. Until 4.30pm on 24 February 2000, the Defendant (whether by its officers, delegates, servants or agents or howsoever otherwise) is hereby restrained, until the hearing and determination of this matter or further order, from commencing, continuing or taking any step in any proceeding or action in the Federal Court of Australia, which has the effect or may have the effect of:

a) restraining or restricting the Plaintiffs from commencing, continuing or taking any step in this proceeding; or

b) restraining or restricting the Plaintiffs from continuing or taking any step in respect of any Application filed by them pursuant to section 166A of the Workplace Relations Act 1996 (Cth); or

c) restraining or restricting the Plaintiffs or sub-contractors working on the Plaintiffs' sites from commencing, continuing or taking any step in proceedings involving the industrial action the subject of this proceeding; or

d) restraining or restricting the Plaintiffs or sub-contractors working on the Plaintiffs' sites from commencing, continuing or taking any steps in proceedings involving industrial action affecting the Plaintiffs.

4. The costs of this application by way of summons be costs in the proceeding.

5. That this Order by [sic] drawn up by the solicitors for the Plaintiffs and signed by me.

6. That the notification of the making of this order may be effected by telephone message to the Defendant.

7. Service of a copy of this Order by facsimile be deemed proper service.

8. The further hearing of the Summons annexed hereto be adjourned to 10.30 am, 24 February 2000."

9 In the afternoon of 22 February, North J in this Court ordered that paragraphs 1 and 2 of the orders of Beach J be stayed until 4.30 pm on 24 February 2000 upon the CFMEU by its Counsel undertaking to file and serve, within the time limited by the Rules, a notice of appeal against those orders. On 24 February 2000, the plaintiffs in the Supreme Court action sought from Beach J the following orders:

"1. Until further Order, the Defendant (whether by its officers, delegates, servants, agents or howsoever otherwise) be restrained from directing, procuring, advising, authorising and/or encouraging its members not to perform the work which their contracts of employment (with any of the Plaintiffs or with any sub-contractor engaged on the Plaintiffs' sites) require them to perform.

2. The Defendant:

(1) prepare a letter on the Defendant's letterhead signed by the State Secretary of the Defendant's Victorian Branch to send forthwith by ordinary pre paid mail a letter to the home address of each of its members employed by the Plaintiffs or working on the Plaintiffs' sites in the terms of the attached letter informing those members of the terms of this order and directing that they forthwith cease industrial action and perform the work which their contracts of employment require; and

(2) to send a copy of one of the letters to the solicitors for the Plaintiffs, at facsimile no. 9230 0505, marked to the attention of Ross Levin, by 5.00 pm on 25 February 2000.

3. The Defendant (whether by its officers, delegates, servants or agents or howsoever otherwise) is hereby restrained, until the hearing and determination of this matter or further order, from commencing, continuing or taking any step in any proceeding or action in the Federal Court of Australia, which has the effect or may have the effect of:

a) restraining or restricting the Plaintiffs from commencing, continuing or taking any step in this proceeding; or

b) restraining or restricting the Plaintiffs from continuing or taking any step in respect of any Application filed by them pursuant to section 166A of the Workplace Relations Act 1996 (Cth); or

4. The Defendant is hereby restrained from making any application for a stay of this order other than an application in accordance with the Supreme Court (General Civil Procedure) Rules 1996."

10 In the result, Beach J declined to make any interlocutory orders and the interim orders which he had made on 22 February ceased to have effect at 4.30 pm on 24 February.

11 In the meantime, on 22 February 2000, Mirvac, CDK and Construction Engineering had given notice, pursuant to s 166A of the Act, of their intention to commence an action in tort against the CFMEU "in respect of all or any conduct or industrial action at all on any of the Sites listed in Schedule B from 1 December 1999 which was or is organised, procured, directed, encouraged, induced, engaged in or incited by" the CFMEU.

12 A hearing of the application under s 166A took place in the Commission on 25 February and, on 1 March, Commissioner Tolley issued a Certificate in these terms:

"Under subsection 166A(6)(C) of the Workplace Relations Act 1996, I hereby certify that the Commission has not stopped the conduct to which the notice dated 22 February 2000 relates and that 72 hours has passed since the notice was given under subsection 166A(3) in respect of that conduct.

This certificate has effect from 1 March 2000."

13 The CFMEU contends that by the actual institution of proceedings in the Supreme Court and by holding out the prospect of an action in tort foreshadowed by the application under s 166A, Mirvac, CDK and Construction Engineering have sought to coerce the CFMEU not to negotiate or make agreements under Part VIB of the Act. That conduct, it is said, contravenes s 170NC which provides, so far as is relevant:

"(1) A person must not:

(a) take or threaten to take any industrial action or other action; or

(b) refrain or threaten to refrain from taking action;

with intent to coerce another person to agree, or not to agree, to:

(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or

(d) approving any of the things mentioned in paragraph (c).

(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8)."

14 Some evidence of the requisite intent is said to be afforded by a statement attributed by "Australian Current Law News" of 15 February 2000 to Lawrie Cross of the MBAV, which was representing CDK and Construction Engineering in an application to the Commission for the suspension of various bargaining periods initiated by the CFMEU. That statement attributed to Mr Cross was to the effect that "the threat of legal action might bring the CFMEU back to the negotiating table" and, as reported by "Australian Current Law News", was apparently made immediately after Marshall J pronounced his judgment in Construction Forestry Mining and Energy Union v Multiplex Constructions Pty Ltd [2000] FCA 101, which is discussed in para 23 below of these reasons. Mr Cross has sworn an affidavit denying having made a statement to that effect and further affidavits have been filed on behalf of each of the respondents denying that he or the MBAV had been authorised to make any such statement on behalf, respectively, of Mirvac, CDK or Constructions Engineering.

15 In addition, the CFMEU has adduced evidence that Mirvac had intimated that it would deny access at weekends to one of its sites in South Yarra to a sub-contractor, J Z Lee Interiors Pty Ltd, which had reached agreement with the CFMEU to avert industrial action on either side and would thereby prevent employees of that sub-contractor from working overtime. That allegation has been denied by the Mirvac site manager alleged to have made the statement. He has deposed that the site was, in fact, open to sub-contractors on Saturday 26 February and has only been closed on about eight Saturdays for purely economic reasons referable to insufficient requests by sub-contractors to be allowed to work.

Recent decisions in a similar context

16 The present case is similar in some respects to Australian Workers' Union v Yallourn Energy [2000] FCA 65 ("Yallourn Energy") in which Merkel J had to consider whether to grant interlocutory injunctions restraining the respondent from commencing an action in tort against the applicant unions in reliance on a certificate which had been issued under s 166A. In the course of his reasons for judgment in that case, his Honour considered the effect and application of s 170MT of the Act, which provides:

"(1) An order made by the Commission under section 127 does not apply to protected action.

(2) Subject to subsection (3), 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:

(a) personal injury; or

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

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

(3) Subsection (2) does not prevent an action for defamation being brought in respect of anything that occurred in the course of industrial action."

17 After examining a number of the authorities which illustrate the distinction between legislative provisions which extinguish rights of action and those which merely bar certain legal remedies, his Honour observed, at paras 46-48:

"What is clear from the cases is that whether such provisions are substantive, in that they prevent the bringing of an action or extinguish the cause of action, and not merely procedural, in that they provide a defence to an action that may properly be brought, depends upon a consideration of the terms of the particular statutory provision and its purpose.

In the present case it is consistent with the terms of s 170MT(2), and its purpose, to construe it as providing that, subject to the exceptions, no action lies in respect of protected action falling within the terms of the section as the cause of action said to found the action has been extinguished. The legal immunity granted in respect of protected action is granted for the purpose, inter alia, of ensuring that such action is not fettered by the threat, or the commencement, of legal proceedings save in the exceptional circumstances set out in the section. Thus, it is consistent with the terms of the section and its purpose to construe it as a substantive provision operating as a bar to action rather than only as a defence that might be waived.

However, the bringing of such an action is not prohibited as such. Plainly, where there is a genuine issue as to whether action is protected, then a legal proceeding can properly be brought so as to enable that issue to be determined. In that sense the extinguishment of the cause of action does not prevent a court from exercising jurisdiction in a matter concerning protected action in order to determine whether the cause of action is extinguished: see Minister for Youth and Community Services (1987) 10 NSWLR 543 at 552."

18 I respectfully agree with those observations.

19 Merkel J next considered the relation between s 166A and s 170MT and concluded that s 166A operates as a fetter upon, and not an authorisation of, the bringing of an action. As s 166A says nothing about protected industrial action, it follows, in his Honour's view and mine, that the grant of a certificate under s 166A cannot authorise the bringing of an action which, by force of s 170MT(2), does not lie. His Honour next considered the principles which have been developed to govern the grant or withholding of anti-suit injunctions and concluded, at paras 55-56:

"As can be seen from the foregoing discussion a court may exercise its jurisdiction to prevent the bringing of a proceeding as relief sought in a suit for a declaration of non-liability or where under domestic law the proceeding is not sustainable or the bringing of the proceeding is an abuse of process or for an ulterior purpose. Such circumstances are analogous to where legal action is threatened in respect of protected action. Under s 170MT(2) no such action is to lie as the cause of action is extinguished. Further s 170NC seeks, inter alia, to prevent action that is coercive in the circumstances there set out.

In my view an anti-suit injunction can, properly, be sought in respect of protected action in a suit for a declaration of non-liability. The main issue that will genuinely be in dispute between the parties in such a suit will be whether the action in question is protected under the Act. In circumstances where the action has occurred, or is occurring, the proceeding for a declaration could not be said to be “redolent of an advisory opinion”: see CEPU v Telstra Corp Ltd (1998) 85 IR 318 at 320 per Ryan J; cf Telstra Corporation v Australian Telecommunications Authority (1995) 133 ALR 417 at 425 per Lockhart J."

20 Merkel J then went on to examine s 170NC of the Act, which, he noted, is cast in wide terms so that commencing a curial proceeding with the requisite intent can amount to "action" within the meaning of the section. After some observations about the difficulty of imputing a particular intent to corporate entities, his Honour said, at para 73:

"There is a degree of unreality about the submission of counsel for Yallourn Energy that the threatened proceeding is extraneous to and is unconnected with the employer’s bargaining position in relation to the new enterprise agreement. Earlier in these reasons I outlined the steps taken by the various parties in the course of the present dispute. In my view each step and counter step by the parties in the current dispute appears to be intended to advance their respective bargaining positions in relation to the new enterprise agreement. Whilst there will be additional reasons for particular conduct to be engaged in during the escalation of the dispute, each step appears to be integrally related to each party’s position in the bargaining process. Thus, whilst a reason for the proposed proceeding might be to recover loss, I would infer from the limited evidence before me that, on a prima facie basis, the proposed proceeding is another step to assist the position of Yallourn Energy in the bargaining process."

21 There were then enumerated several factors which were said to warrant that inference and his Honour expressed his satisfaction that there was a serious issue to be tried under s 170NC. Several of those factors are available to support the drawing of the same inference in the present case.

22 Finally in Yallourn Energy, Merkel J considered the balance of convenience, and, after noting that the applicant unions intended to continue with their claims for the imposition of penalties on Yallourn Energy and that the latter had undertaken to commence and prosecute in this Court any proceeding against the unions, concluded, at para 83, that:

" ... the Federal Court, as an eligible court, will be well placed to ensure that both proceedings are prosecuted and resolved in a manner that is just and which accords with the policy of the Act. If I were in doubt as to the jurisdiction of the Court to deal with the proposed action in tort (which arises under the common law) then I would have some doubt as to the appropriateness of the Court accepting the undertaking. However, recent decisions leave little doubt that the outcome of the applicant unions’ claims in reliance on the Act and Yallourn Energy’s claims under the common law are integrally bound with the issue of whether the industrial action of the unions and their members is protected action."

23 Accordingly, his Honour dismissed the unions' application for interlocutory relief but reserved liberty to apply "in respect of any other threatened proceeding in respect of the alleged tortious industrial action."

24 Some of the principles enunciated in Yallourn Energy were applied by Marshall J in Construction Forestry Mining and Energy Union v Multiplex Constructions Pty Ltd, where his Honour granted interlocutory injunctions restraining the respondents from taking any further step in an action which they had commenced in the Supreme Court of Victoria "insofar as the Supreme Court action deals with or concerns any issue concerning any industrial action taken by those employees of sub-contractors of the respondents who are members of the CFMEU ("the employees")" and from commencing any proceedings except in the Commission "in relation to matters referred to in paragraph 1 of the Indorsement of Claim in the Supreme Court action which deals with or concerns any industrial action taken by the employees." Those orders were made against a background that the respondents had declined to give any undertaking in relation to the pending, or any future, proceedings in the Supreme Court. The only undertaking proffered was to give forty-eight hours written notice to the CFMEU before filing a statement of claim in the pending Supreme Court action.

25 In CFMEU v Master Builders' Association of Victoria (No 1) [2000] FCA 168, ("Master Builders") some of the facts were paralleled by those in the present case. Certain of the respondents, which were building companies, had given a notice under s 166A(3) of the Act, substantially identical to that issued on 22 February 2000, by Mirvac and the other respondents to this application. Consequently, a certificate under s 166A(6)(c) of the Act was issued on 14 February 2000. Goldberg J had set down for separate hearing and determination the question of whether the industrial action in respect of which Mirvac had, by its s 166A notice, foreshadowed legal proceedings was protected action, so as to attract the immunity from suit conferred by s 170MT(2). Accordingly, his Honour observed at the end of para 13 of his reasons:

"As s 170NC(1) does not apply to action that is protected action (s 170NC(2)), any consideration of whether an injunction should be granted in relation to the ban on overtime must await the determination of the question set down for separate determination."

26 His Honour then reviewed the evidence and, after emphasising that the respondents' notice under s 166A had disavowed any intention to bring proceedings in respect of protected action, he concluded, at para 23:

"...I do not consider that there is a serious question to be tried as to whether any proceeding brought in reliance upon the s 166A certificate will be in respect of protected action. Once a proceeding is formulated by the fourth to ninth respondents the matter will crystallise and can be re‑visited. At that point of time it would be possible to determine with a greater degree of certainty whether the proposed proceeding might be in respect of conduct which is protected action. In such circumstances, the Union’s present concerns could be accommodated by the fourth to ninth respondents giving the Union notice of any proposed proceeding in tort before it is commenced. If the Union was given a copy of any proposed proceeding before it was issued it could consider whether it wanted to contend that such proceeding would be in respect of protected action and it could then apply to restrain the commencement of the proceeding. In the course of the hearing, counsel for the fourth to ninth respondents indicated that his clients would be prepared to consider giving an undertaking that they would not take any proceeding in tort pursuant to the s 166A certificate in relation to conduct described in the certificate without giving the Union seventy‑two hours’ notice of the nature of the proposed proceeding and intention to commence the proceeding. If such an undertaking was given, the Union would not be prejudiced if an injunction was not granted at the present time. Mr Borenstein submitted that if a proceeding was commenced in the Supreme Court of Victoria, the situation would be created where the determination of whether the industrial action of the Union is protected action would be occurring in two courts at the same time. But that submission depends upon knowledge of what is the content of the proceeding in the Supreme Court. If it relates to industrial action or conduct which is not protected action, the issue will not arise. If it does relate to protected action, consideration can then be given as to which is the appropriate forum in which the matter should continue."

27 In respect of the alleged contravention of s 170NC, his Honour found that some of the factors identified by Merkel J in Yallourn Energy were also present in Master Builders but inclined to the view that "any further leverage" for industrial bargaining purposes had already been obtained by the issue of the s 166A certificate and would not be gained "from the commencement, but not the prosecution, of any proceeding." Accordingly, his Honour concluded, at para 34:

"... although I consider there is a serious question to be tried as to whether the fourth to ninth respondents are threatening to take action with intent to coerce the Union to make an agreement under Div 3 of Pt VIB of the Act, I consider that the case made out is weak."

28 His Honour then went on to observe, at para 40:

"Because the precise nature of the proceeding which may be commenced as a result of the s 166A certificate is not yet known, the position may well be that when the fourth to ninth respondents have prepared the proposed proceeding the position may become clearer as to whether or not there can be inferred more strongly an intention to coerce the Union in contravention of s 170NC of the Act and therefore reasons why the balance of convenience is in favour of the granting of an injunction. If such a position was reached it might be appropriate, depending on the circumstances, to restrain the commencement of that proceeding. This matter can be dealt with under the rubric of the undertaking which counsel for the fourth to ninth respondents indicated might be forthcoming, to which I have already referred."

29 His Honour therefore declined to give interlocutory relief, subject to the respondents' giving the undertaking which they had proffered, but he indicated that, in the absence of such an undertaking he:

"would be prepared to grant an injunction that the fourth to ninth respondents be restrained until the determination of the proceeding, or further order from commencing any proceeding in tort against the Union in respect of conduct which is the subject of the s 166A certificate."

The interlocutory relief sought by the CFMEU and undertaking proposed by the respondents.

30 In the course of the first day's hearing of its claim for interlocutory relief, Mr Bromberg of Counsel for the CFMEU formulated the following orders as affording appropriate relief until the hearing and determination of the substantive application:

"In these orders:

(i) "the interlocutory period" means the period between 11 January 2000 and the date on which the application for interlocutory relief is determined; and

(ii) "industrial action" means industrial action taken or engaged in by the Applicant, its officials, servants, agents and/or members pursuant to or in furtherance of the section 170MO notices of 5 January 2000 and/or 14 February 2000, referred to in paragraphs 16 and 18 of the Statement of Claim.

1. An injunction that the Respondents by themselves, their servants or agents, be restrained until the determination of this Application, or further order, from:

(a) threatening to commence or commencing any proceedings against the Applicant, its officers, employees or members relating to the industrial action taken in the interlocutory period; and

2. An injunction that the Respondents by themselves, their servants or agents, be restrained until the determination of this Application, or further order, from initiating any court action against the Applicant, concerning any industrial action taken on or after the making of these orders, without first giving the Applicant 48 hours written notice of intent to initiate that action and enclosing with that written notice a copy of any draft court documents relating to such action.

3. An injunction restraining the Respondents by themselves, their servants or agents until the determination of this Application or further order from taking any further step in the proceeding commenced by the Respondents in the Supreme Court of Victoria against the Applicant, being proceeding number 4377 of 2000 ("the Supreme Court action").

4. An injunction restraining the First Respondent by itself, its servants or agents until the determination of this Application or further order from

(b) by threats promises or otherwise, encouraging subcontractors to stand down or otherwise injure or prejudice the position of the employees of the subcontractors."

31 Mr Wood of Counsel for the respondents opposed the making of any orders to that effect but was prepared to give an undertaking to the Court in terms similar to that accepted by Goldberg J in Master Builders. Paraphrased to apply the facts of the present case, that would have been an undertaking that the respondents would not, pending the hearing and determination of the application herein, commence any proceedings in tort against the CFMEU pursuant to the certificate given by the Commission dated 1 March 2000 without giving the CFMEU seventy-two hours notice in writing of the nature of the proposed proceedings and their intention to commence the proceeding by serving on the applicant a draft statement of claim. However, after a further hearing on 17 March, an undertaking in the following terms has been proffered on behalf of Mirvac, CDK and Construction Engineering:

"That the Respondents and each of them will not, pending the hearing and determination of the Application herein:

(a) file a Statement of Claim or take any other step in the Supreme Court proceedings No. 4373 of 2000.

(b) other than an application for interim or interlocutory relief institute any other proceedings in any court against the CFMEU or any of its officers, employees or members in respect of any industrial action against, or affecting, the Respondents or any of them which has been, or may hereafter be, taken or threatened by the CFMEU its officers, employees or members;

without giving the CFMEU at least 72 hours notice in writing of the step to be taken in Supreme Court proceedings No 4373 of 2000 or the institution of such other proceedings, such notice to be accompanied by a draft of the statement of claim to be filed in Supreme Court proceedings No 4373 of 2000, or if one has been prepared, in the proposed other proceedings."

The existence of serious questions to be tried.

32 It seems to me that the material presently before this Court raises the following questions:

(1) whether an action for a quia timet injunction is an action in tort within the meaning of s 166A so that the issue by the Commission of a certificate under that section is a prerequisite to the institution of proceedings;

(2) whether the industrial action, in respect of which the pending proceedings in the Supreme Court have been brought or other proceedings have been threatened, is exclusively protected action within s 170MT;

(3) whether the proceedings in the Supreme Court have been brought, and other proceedings have been threatened, in contravention of s 170NC;

(4) whether action, other than the commencement or prosecution of legal proceedings, has been taken or threatened by the respondents in contravention of s 170NC.

Balance of convenience and other discretionary considerations

33 Obviously the CFMEU's case on each of those questions is not of equal strength. However, I am prepared to assume that each one answers the description of a serious question to be tried as that has been refined by the authorities establishing the principles applicable to interlocutory injunctive relief. Notwithstanding that assumption, I consider, for reasons referrable to the balance of convenience and other discretionary considerations, that I should not, at present, accede to the CFMEU's application for interlocutory injunctions because the respondents, through their Counsel, have indicated that they are prepared to give the undertaking, similar to that accepted in Master Builders, which has been set out at para 31 of these reasons.

34 My reasons for reaching the conclusion just indicated may be shortly stated. The first two questions identified in para (31) above will necessarily arise for determination in either the existing Supreme Court proceedings or any other action which may be instituted by the respondents against the CFMEU and its members in respect of industrial action by them against, or affecting, the respondents. As Mr Bromberg contended, courts should be astute, by the grant of declaratory relief or otherwise, to truncate proceedings that are founded on a basis not known to the law because, as Gibbs ACJ put it in Sankey v Whitlam (1978) 142 CLR 1 at 24: "the accused has a "right" not to be exposed to proceedings that have no legal substance." However, the facility available to the CFMEU to raise, at an early stage in the Supreme Court proceedings, the alleged non-compliance with s 166A and the immunity afforded by s 170MT as barring the remedy sought in those proceedings, puts the Supreme Court in as good a position as this Court to ensure that the CFMEU is not exposed to so much of the proceedings as has no substance.

35 The approach to be taken to applications for interlocutory anti-suit injunctions has recently been outlined in the joint judgment of the majority of the High Court in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, where it was observed, at 397:

"In a case in which an anti-suit injunction is sought on equitable grounds, the central question is whether the court to which application is made or some other court should hear and determine the matter in issue or, at least, that aspect of it involved in the application for injunction. And where the courts concerned are, respectively, an Australian court and a court of another country, there is involved in that question the further question whether the Australian court is an appropriate forum, in the Voth sense of it not being clearly inappropriate, for the determination of that matter. The fact that there is that further question, the preclusive nature of an interlocutory anti-suit injunction and the importance of comity combine to require an Australian court to consider whether it is appropriate, in the sense that it is not clearly inappropriate, for it to determine the matter in issue before granting an anti-suit injunction.

If the Australian court decides that it is clearly an inappropriate forum, that will be the end of its involvement and the occasion for considering whether to grant an anti-suit injunction or other relief will not arise. If the Australian court reaches the opposite conclusion, namely, that it is not a clearly inappropriate forum, then it must go on to determine whether to require the applicant to seek a stay or dismissal of the foreign proceedings or to grant an anti-suit injunction. As we have indicated, this sequence was not followed by the Supreme Court in the present litigation.

It is theoretically possible that there will be cases in which the matter urged in support of the grant of an anti-suit injunction in the exercise of equitable jurisdiction cannot be raised in the foreign proceedings in respect of which the injunction is sought. Should a case of that kind occur, it would be our view that comity requires that, even in a case of that kind, an Australian court consider whether it is an appropriate forum for the resolution of the matter urged in support of the injunction before making interlocutory orders.

As already indicated, the considerations to which reference has been made, namely, comity and the preclusive effect of an interlocutory anti-suit injunction, require that an injunction not be granted by an Australian court in the exercise of equitable jurisdiction if it is a clearly inappropriate forum. If it is not a clearly inappropriate forum, it may be expedient to require the applicant to seek a stay or dismissal of the foreign proceedings. However, if that step is not considered expedient or desirable or if it is taken without success, the court must proceed in accordance with the practice which ordinarily applies with respect to interlocutory relief. In other words, it must then determine whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an interlocutory injunction."

36 Even greater significance attaches, in my view, to the preservation of comity where the courts concerned are both Australian courts and co-equals in the administration of justice in this country.

37 It is true that the majority of the High Court in CSR v Cigna recognised that there is an anterior question which must be asked before a court, in the exercise of its equitable jurisdiction, applies the principles set out in the passage just quoted. That is whether the proceedings in the "foreign" court are vexatious or oppressive. That question is given added point in the present case by the allegation that the proceedings in the Supreme Court have been instituted in contravention of s 170NC. However, I agree with the view expressed by Goldberg J in Master Builders where he said (at para 31) of propositions that the institution of proceedings in the Supreme Court was a contravention of s 170NC:

"The difficulty with these propositions is that, in a sense, they are premature, until one knows the exact nature of the proceeding to be brought. The issue of the conduct of proceeding requiring sustained attention by Union officials can be met by an order restraining the fourth to ninth respondents from continuing or prosecuting any proceeding which is commenced any further than the issue of the writ or other initiating process until the current bargaining period and round of industrial negotiations are concluded and certified agreements are entered into.

Although the potential risk of damages to the Union or to individuals may be intimidating, that potential risk already exists by reason of the fact that the Commission has given a certificate under s 166A in respect of certain conduct, so that the fourth to ninth respondents have available to them a cause of action hitherto precluded by s 166A(1). That potential risk will not go away or be resolved by the granting of an injunction restraining the commencement of any proceeding. Any injunction so granted could only run until a bargaining period and round of industrial negotiations had concluded. Once that point has been reached and relevant certified agreements have been entered into, there is no basis for the continuation of any injunction preventing the commencement of any proceeding.

I make the same observations in relation to the proposition that the litigation is likely to become a significant additional factor in negotiations. The fourth to ninth respondents have already obtained what is said to be “an additional source of leverage” by the obtaining of the certificate and I do not consider that any further leverage is gained from the commencement, but not the prosecution, of any proceeding."

38 Notwithstanding the evidence, which is disputed, that an officer of MBAV expressed the hope that "the threat of legal action might bring the CFMEU back to the negotiating table", like Goldberg J, I do not consider that the threat constituted by the mere existence of the pending legal proceedings can realistically be regarded as of sufficient magnitude to deter the CFMEU from pursuing negotiations fearlessly and effectively on behalf of its members. The undertaking which the respondents have agreed to give affords the CFMEU an adequate opportunity to seek the intervention of this Court if, and when, it becomes clearer that the present, or any future, proceedings in another court are being held over the head of the CFMEU in contravention of s 170NC or are otherwise being used as an instrument of vexation or oppression.

39 By way of justifying the anti-suit injunction sought by the CFMEU, Mr Bromberg contended that it was necessary to ensure the orderly disposition of a single controversy. He submitted that this Court is the only forum in which complete relief can be given. As I understand it, that contention was impliedly based partly on the fact that s 422 of the Act provides that an appeal lies to this Court from a judgment of a court of a State in a matter arising under the Act which includes the availability or otherwise of the immunity conferred by s 170MT. A Full Court of this Court in Transport Workers Union v Lee (1998) 84 FCR 60 did not regard that feature as conclusive in favour of an anti-suit injunction, observing at 68:

"We are not persuaded that we should take that course. The Workplace Relations Act assumes that there will be matters arising under the Act that can properly be determined by a court of a State or Territory. In the present case the respondent seeks to enforce a State law in a State court. A matter arises in those proceedings under federal law but the State court is empowered to determine that matter in the exercise of federal jurisdiction. It is true that a matter arising under s 170MT of the Workplace Relations Act may potentially raise important questions of federal law but that in itself is not a reason why proceedings already commenced in a State court should be restrained, and particularly is this so when it is seen that the Workplace Relations Act provides for a right of appeal to this Court. It should also be borne in mind that this is not a case in which the applicants are, in circumstances beyond their control, being vexed by two sets of proceedings; to the contrary, it was the applicants themselves who commenced the proceeding in this Court when proceedings had already been brought against them in the Industrial Magistrates’ Court at Kingaroy."

There are at present proceedings in different courts, principally because the CFMEU, in response to the proceedings in the Supreme Court, has elected to initiate the present application in this Court. I have not overlooked the fact that the relief which the CFMEU has foreshadowed it will seek against a contravention of s 170NC is only available in this Court but that, of itself, is not sufficient reason to deny the plaintiffs in the Supreme Court proceedings the right to have the issues which they have raised heard and determined, at least at first instance, in the forum of their choice. Exclusive jurisdiction in one court in respect of a particular matter does not compel the grant of an anti-suit injunction; as was observed in the joint judgment of the High Court in CSR v Cigna (supra) at 397, even where a particular matter raised by the applicant cannot be raised in the "foreign" proceedings, the "domestic" court is still required to determine whether the balance of convenience favours the grant of an interlocutory injunction.

40 I do not consider it an appropriate exercise of this Court's discretion to issue, here and now, an interlocutory injunction to restrain conduct said to be in contravention of s 170NC like that alleged to have occurred in relation to the sub-contractor J Z Lee Interiors Pty Ltd at Mirvac's South Yarra site. The only evidence tending to establish the CFMEU's version of that incident is on information and belief and I consider it preferable to make arrangements, if requested, for a speedy trial of the issues raised by that, and any similar, allegation rather than to try to frame an interlocutory injunction without hearing directly from the employees or the sub-contractors concerned.

41 For these reasons, the order of the Court will be that: