FEDERAL COURT OF AUSTRALIA

United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd (No 2) [2014] FCA 277

THE COURT ORDERS THAT:

Order 1 of the orders of 24 October 2013 be vacated.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 24 October 2013 I made the following interlocutory order in this proceeding:

Upon the provision of the usual undertakings as to damages by the applicants, the Court orders that:

1.    Until hearing and determination of this proceeding, or further order, the First Respondent will provide to the First Applicant casual cartage in accordance with its usual cyclical rostering arrangements for the First Applicant’s 7.0m3 Freightliner Columbia CL112 Prime Mover, VIN number 1FVMF0CY4CLBM3934 to carry out casual cartage for the First Respondent as if the First Applicant and the First Respondent were performing their respective obligations under the Hanson Construction Materials SEQ 7.0m3 Concrete Carriers Agreement annexed and marked MM8 to the Affidavit of Michael Meredith filed 10 September 2013.

2    I made this order against the background of facts set out in my judgment in United Motor Search Pty Ltd v Hanson Construction Materials Pty Ltd [2013] FCA 1104, and in particular in circumstances where:

    I was satisfied that there was a serious question to be tried in relation to whether a contract existed between the first applicant and the first respondent concerning the 7.0m3 truck.

    There was evidence from the second applicant, Mr Michael Meredith, supporting the view that adverse action had been taken against the applicants for reasons prohibited by the Fair Work Act 2009 (Cth).

    The balance of convenience supported the grant of interlocutory relief to the applicants.

    The first respondent had not suffered any prejudice from conduct of Mr Meredith.

3    On 10 March 2014 however the respondents filed an interlocutory application seeking an order that Order 1 of the orders made on 24 October 2013 be vacated. The primary argument of the respondents is that the balance of convenience has shifted, such that it is reasonable for the Court to discharge the interlocutory injunction previously ordered.

4    In this judgment I shall continue to refer to the applicants to the substantive application as “the applicants” and similarly the respondents to that application as “the respondents”, notwithstanding that the respondents initiated the interlocutory application currently before the Court.

5    Before turning to consideration of the interlocutory application currently before the Court, it is convenient to have regard to the material filed in respect of this proceeding.

Material filed by the respondents

6    The respondents have filed 12 affidavits in support of their interlocutory application. A number of these affidavits were filed after the hearing. These affidavits may be summarised as follows.

1.    Affidavit of Mr Terry Breen

7    Mr Breen is the Customer Account Manager of the first respondent (“Hanson”). He manages the accounts of customers of Hanson including Advanced Precast Australia (“APC”) which makes pre-cast concrete products including pre-cast concrete products for the building and construction industry. In his affidavit sworn 10 March 2014 Mr Breen deposes that APC has complained about conduct of the second applicant, Mr Meredith. In particular:

    On 26 and 27 November 2013 Hanson drivers had raised concerns about debris at the APC site which could cause damage to truck tyres, including screws and nails at the site.

    Mr Breen rang Mr Jason Corbett, the Queensland Factory Manager for APC, on 27 November 2013 in relation to this issue. Mr Corbett said that Mr Meredith had raised the issue with Mr Corbett and the issue was being addressed.

    Later that day Mr Breen was informed that Mr Meredith was refusing to discharge his concrete at the APC site, because Mr Meredith deemed the APC site unsafe.

    Mr Corbett informed Mr Breen that APC had done what it could to remedy the situation in relation to debris, but there would always be the odd screw on the access road because of the production process. Nothing APC did was good enough for Mr Meredith.

    Mr Meredith had instructed another Hanson driver not to discharge concrete at the APC site. The other Hanson driver considered the APC site safe, however was reluctant to discharge the concrete because of Mr Meredith.

    Eventually Mr Meredith and the other Hanson driver discharged the concrete at the APC site.

    On 29 November 2013 Mr Corbett rang Mr Breen and told him that Mr Meredith was not welcome back at the APC site because of Mr Meredith’s attitude on 27 November 2013. Mr Corbett said that Mr Meredith had wasted APC’s time unnecessarily, held up production, caused angst at the site, was rude, and gave orders at the site. Although Mr Breen passed the message on to others at Hanson, Mr Meredith was despatched later that day to APC with a load of concrete, which APC rejected. The entire load had to be dumped.

    Mr Breen deposed:

33.    I have been in the industry (concrete and quarries) and dealing with the construction industry for over 20 years. It is an everyday occurrence that at construction sites there will be a level of debris, like nails and screws etc. on the ground. This does become an issue for drivers doing deliveries, for example concrete. However, the drivers work with the site and Hanson to sort out the issue and co-operate accordingly, not by making verbal threats and giving ultimatums and unnecessarily holding up production when there is not a safety issue, like what Michael did at APC on 27 November 2013.

    A more detailed letter of complaint came from APC to Hanson concerning Mr Meredith on 3 December 2013.

2.    Affidavit of Mr David Griffith

8    Mr Griffith is a concrete plant manager of Hanson. In that role he manages employee and lorry owners and drivers (“LOD drivers”) in Hanson plants. Mr Meredith is an LOD driver at the Hanson Stapylton concrete plant. In his affidavit sworn 10 March 2014 he deposes that he has had customer complaints concerning Mr Meredith. In particular:

    He received a complaint from Mr Peter Smith, the customer account manager for Hutchinson Builders, on 28 November 2013 to the effect that Mr Meredith was with his truck at the Hutchinson Builders site at Yatala, and Mr Meredith was refusing to unload concrete on his truck. Mr Meredith rang Mr Griffith to say that there were bits of steel and nails in the yard, he risked getting tyre puncture, and he would not unload.

    Hutchinson Builders is a major customer of Hanson.

    Mr Griffith deposed:

12.    In all likelihood there would have been debris in the yard, as this tends to the case in the industry, however drivers never refuse to unload. What drivers do is speak to the customer and ask the customer to do a sweep or clear the area or they unload and then speak to the customer about the amount of debris.

    Mr Griffith went to the Yatala later in the day on 28 November 2013 and was shown around the yard by one of the men there, Cameron. In Mr Griffith’s view everything looked satisfactory. Cameron said that if there is debris the yard will clean it up.

    Mr Meredith is generally uncooperative, will not work with Hanson to achieve a result, and “turns the issue into a major crisis with the customer”.

    He was informed about the incident involving Mr Meredith at the APC site on 27 and 28 November 2013.

    On 28 February 2014 Mr Meredith again rang Mr Griffith and informed him that there was too much debris at the Hutchinson Builders site at Yatala, and he could not deliver. Mr Meredith’s load of concrete had to be dumped.

    Hanson directed another driver, Mr Dean Currin, to deliver concrete to the Yatala yard. Mr Currin informed Mr Griffith that there was no debris at the Yatala yard and it was safe to deliver.

    Mr Meredith had taken a video of the Yatala yard, and emailed it to Mr Griffith. Mr Griffith deposed that there was a lot of debris on the ground in that video, which is not unusual for construction sites. He deposed further:

The ordinary practice is for the driver to speak with the site guys and they will do a clean-up or the drivers do a clean-up. I actually don’t know why it is such a drama for Michael. It is like he is deliberately trying to upset the customer.

9    On 10 February 2014 Mr Griffith received a complaint from Mr Meredith alleging that Mr Josh Gwynne, a batcher employed at Hanson’s Stapylton plant, had harassed him by tampering with Michael’s union notice board at the Stapylton plant (by turning it upside down several times) and placing a rude picture on the board. Mr Gwynne informed Mr Griffith that he had tampered with the notice board because although Mr Gwynne is a paid up member of the TWU, Mr Meredith is difficult to deal with. Mr Griffith deposed that he had organised a meeting between Mr Meredith and the Hanson EEO contact officer, Mr Phil Stevenson, however the meeting did not go well.

3.    Affidavit of Mr Cameron McDonald

10    Mr Cameron McDonald is a solicitor employed by Cooper Grace Ward Lawyers, the solicitors for Hanson. In his affidavit sworn 10 March 2014 Mr McDonald deposes that the applicants have discovered no documents which go to the applicants’ financial affairs with the exception of:

(a)    an estimate of assets of $2.2 million in 2011 when applying for finance to purchase the 6.0m3 truck;

(b)    an estimate of assets of $1.2 million in 2012 when applying for finance to purchase the 7.0m3 truck;

(c)    a one page copy of Mr Meredith’s Community First month of July 2013 statement;

(d)    the sale of a house at Yarramundi that appears on the 2011 financial application but not on the 2012 application;

(e)    the admission of ownership of 2 boats and various cars in the 2012 financial application.

11    Mr McDonald also deposes the applicants’ 6.0m3 truck was involved in an incident at the Stapylton concrete plant on 28 November 2013. The first applicant has not sold the 6.0m3 truck, to the best of Mr McDonald’s knowledge.

12    The applicants also discovered audio-recordings made by Mr Meredith at an owner-driver meeting on 24 June 2013.

4.    Affidavit of Mr David Drew

13    Mr Drew is the Metro Concrete Transport Manager of Hanson. In that role he oversees all the concrete truck operations in south-east Queensland, including LOD drivers and employee drivers. In his affidavit sworn 10 March 2014, Mr Drew deposed, in summary, that:

    He was aware of complaints made by APC and Hutchinson Builders about Michael Meredith refusing to follow instructions, being arrogant and rude to site personnel and being unreasonable and difficult when making complaints about site debris, through his discussions with David Griffith, Terry Breen and his own supervisor Mr Shane Blank.

    Mr Mick Ehlert from the Transport Workers Union contacted Mr Drew, informing him that Mr Meredith had alerted the TWU to breaches of workplace health and safety by APC. Mr Drew informed Mr Ehlert that any such concerns had been addressed by Hanson and APC.

    He was aware of the incident at the Hutchinson Builders site at Yatala involving Mr Meredith, and the events involving the replacement driver Mr Dean Currin.

    On 5 March 2014 he viewed a video that Mr Meredith had emailed to David Griffith on or about the same date, being allegedly a video of the Yatala yard that Mr Meredith had taken. Mr Drew deposed:

31.    It is really difficult to see properly where the video is supposed to be at in the Yatala yard or even if it is at the Yatala yard. The video may not be even relevant to where the guys drive assuming it is at the Yatala yard. The video does show a lot of debris which could possibly damage tyres if a truck went over that debris.

32.    In my experience of being in this industry for over 20 years, it is not unusual for debris like this to be at a construction site or pre-cast site. In my experience when there is debris like this it never causes the driver to refuse to discharge their load and I don’t see the video as being a work health and safety issue requiring the refusal by a driver to deliver a load.

33.    Ordinarily the driver either asks the site to clean it up or the driver might do a quick clean themselves. This is ordinary and accepted practice in the industry.

34.    Also the video is in direct contradiction to what another driver has informed me about the state of the Yatala yard. I asked Dean Currin about the state of the Yatala yard and what the LODs thought of that yard in terms of the amount of debris on the ground in person on 5 March 2014. Dean told me words to the effect no one has a problem with that yard except Michael.

35.    Dean also told me that the guys at the Yatala yard are nice blokes and are good to deal with and that he has never been refused any requests he has made to site personnel at that yard when he has made deliveries to that yard.

    He was aware of the incident involving Mr Phil Stevenson and Mr Meredith.

    Following that incident, on 24 February 2014 Ms Leanne Parker, the manager of employee relations for Hanson located in Sydney, attended Hanson’s Stapylton concrete plant to meet with Mr Meredith as part of her investigation into Michael’s complaint about Mr Gwynne. Also in attendance were Mr Drew and a representative from the TWU, Mr Graham Garratt. Mr Meredith was very rude and arrogant in his dealings with Ms Parker.

5.    Affidavit of Mr Peter Smith

14    In summary, in his affidavit sworn 10 March 2014 Mr Smith deposes that he is the customer account manager at Hanson, and manages the Hutchinson Builders account as well as other accounts, but that Hutchinson Builders is either the first or second largest customer of Hanson by volume and the Hutchinson Builders account takes up approximately 90% of his time.

15    Mr Smith gave evidence in respect of his knowledge of the incident at the Hutchinson Builders site at Yatala on 28 November 2013, and a further complaint concerning Mr Meredith by the same customer on 28 February 2014 at Yatala.

16    In relation to the impact for Hanson of these complaints, Mr Smith deposed as follows:

41.    Any negative interaction between Hanson and a customer, be it a Hanson employee or a Hanson lorry owner or driver (LOD), is a bad reflection on Hanson. It became apparent to me that whenever Michael attends the Yatala yard there was a problem.

42.    I have never received a complaint from a Hutchinson Builders or Heinrich representative about any other Hanson driver attending the Yatala yard.

43.    I am unaware of any other Hanson driver complaining about the Yatala yard except Michael. As the account manager for Hutchinson builders I would generally be made aware of any issues concerning the Yatala yard by Hanson drivers.

44.    Michael’s conduct not only damages Hanson’s reputation; including making Hanson appear unreliable in terms of concrete delivery, it threatens Hanson’s commercial relationship with Hutchinson Builders.

45.    From my involvement in this matter concerning Michael’s conduct at the Yatala yard, it became apparent to me that Michael was trying to go out of his way to cause as much disruption as possible to the customer and site personnel and get banned from that yard.

6.    Affidavit of Mr Philip Stevenson

17    Mr Stevenson is the EEO Contact Officer and Training Co-Ordinator at Hanson. In his affidavit sworn 10 March 2014 he deposed that he had been employed by Hanson for 27 years, and is a point of contact when a complaint is made about harassment or discrimination or safety at Hanson in the workplace.

18    Mr Stevenson gave evidence of his meeting of 13 February 2014 with Mr Josh Gwynne and Mr Griffith concerning complaints of harassment by Mr Meredith. Mr Gwynne stated that he had tampered with Mr Meredith’s noticeboard because Mr Gwynne was tired of the manner in which Mr Meredith had treated him.

19    On the same date Mr Stevenson met with Mr Meredith and Mr Griffith. Mr Stevenson deposed as follows:

18.    I opened the meeting by stating my name and what I did. I told Michael I was impartial and stated words to the effect I wanted to hear his side of the story or his version of events.

19.    Michael told me words to the effect that on Monday he realised that, or he might have said his union TWU notice board had been tampered with.

20.    In reply I turned and asked David Griffith words to the effect does Hanson recognise union notice boards? I asked David that question because in my 27 years at Hanson I have never known Hanson to have union notice boards and I was in the union at Hanson for a long time.

21.    I know it is not a legal requirement to have union notices boards at the workplace unless it is stated in the collective agreement, which it is not.

22.    As soon as I said that comment to David, Michael jumped out of his seat and said to me words to the effect I or Hanson was not recognising unions, I was not impartial. I tried to state to Michael we do recognise unions but Michael was very aggressive and argumentative and wouldn’t let me speak. It all happened really quickly. To be honest I go [sic] very flustered.

23.    I recall Michael stating to me words to the effect you bloody well better or should or Hanson bloody well should in regard to my question about union notice boards.

24.    I hardly had a chance to say anything else at the meeting with Michael because as soon as I mentioned about the union notice board Michael jumped up, I was still sitting down and I felt like Michael was trying to tower over me and intimidate me. When Michael was standing up he stated to me ‘you said Hanson does not recognise unions’.

25.    To be honest things got out of hand at that meeting and I was getting more and more stressed.

26.    At that point Michael said he wanted to go and ring his union.

20    Mr Stevenson also gave evidence that Mr Meredith had attended a re-induction at the Hanson Stapylton plant several weeks before in January 2014, and had been disruptive.

7.    Affidavit of Mr Daniel Cooper

21    Mr Cooper is the Hanson Regional General Manager, Northern Region. In his affidavit sworn 17 March 2014 Mr Cooper gave evidence in relation to issues concerning drivers changing “home plants”, of particular relevance to the question concerning the possibility of Mr Meredith operating out of a Hanson plant other than Stapylton. In particular Mr Cooper deposed:

    As a general proposition trucks were only allocated to different Hanson plants where determined by customer demand, or if a truck was close to that plant.

    Earnings for trucks are based on the total deliveries of all trucks at the home plant. An increase in trucks assigned to a particular home plant without an increase in deliveries would result in a decrease in the earnings for each truck, as well as an increase in truck transfer fees for Hanson.

    Transferring Mr Meredith would not guarantee that the likely customers for delivery of concrete would be other than APC or Hutchinson. So, for example, on 14 March 2014 Hutchinson had 19 separate orders for wet concrete out of seven different plants.

    A likely scenario is that if Mr Meredith were transferred to a new home plant, another truck would need to be transferred out. This would inconvenience another truck driver.

22    Further, Mr Cooper deposed:

22.    I cannot take a risk with Hutchinson Builders. Without the business from Hutchinson Builders Hanson’s business would be severely impacted to the point where Hanson would be closing concrete plants in SEQ.

8.    Second Affidavit of Mr David Drew

23    In his second affidavit sworn 17 March 2014, Mr Drew deposed, in summary, that:

    The only consideration for transferring a truck to another parking location is the available workload based on customer demands.

    At present there is no requirement for a truck to be transferred to a new parking location in the SEQ metro fleet.

    If Mr Meredith were transferred another driver would have to be moved or else earnings would be reduced.

24    Mr Drew also gave further evidence concerning Mr Meredith’s disruptive conduct.

9.    Second Affidavit of Mr David Griffith

25    In his second affidavit sworn 17 March 2014, Mr Griffith deposed, in summary, as follows:

    Hanson’s Labrador concrete plant as well as the Stapylton plant supplies concrete to APC and Hutchinson Builders.

    All Hanson concrete plants in the SEQ Metro fleet supply concrete to Hutchinson Builders on a regular basis.

    Trucks from Hanson’s Labrador and Burleigh plants are also required to transfer to the Stapylton concrete plant during the day, usually to do deliveries to APC and the Yatala yard.

    During the day a truck which has a parking location at Stapylton is often required to load at other plants for that day, based on the location of that truck, to a particular plant which has a delivery requirement but does not have a truck available to take that delivery.

    Even if a truck has a parking location at Stapylton or Labrador they can and do get called into other plants daily to delivery loads. A truck transfer fee is payable by Hanson in those circumstances. This is all generated automatically by the TESYS system, which selects a truck which has finished delivering a load and is the nearest available. As Mr Meredith has been banned from two customer sites the TESYS system has to be manually overridden when Mr Meredith presents to a plant to ensure that he is not loaded with the concrete order for site from which he is banned.

10.    Second Affidavit of Mr Cameron McDonald

26    In his second affidavit sworn 24 March 2014 Mr McDonald gave evidence concerning further disclosed documents provided by the applicants by way of a list of documents. In that material was a loan application made by the first applicant, in which Mr Meredith assessed his assets to be $1.27 million and his liabilities to be $240,000. Mr McDonald also gave evidence concerning the transcription of an audio-recording of an owner driver meeting on 1 August 2013 attended by Hanson management and a number of LOD drivers.

11.    Third Affidavit of Mr David Griffith

27    In his third affidavit sworn 24 March 2014 Mr Griffith replied to material in the fifth affidavit of Mr Meredith sworn 21 March 2014. Materially, Mr Griffith insisted that Mr Meredith was not banned from the APC site for raising safety issues – he was banned by the customer because of the manner in which he conducted himself on site.

12.    Third Affidavit of Mr Cameron McDonald

28    In his third affidavit filed 25 March 2014 Mr McDonald made corrections to certain facts set out in his second affidavit.

Material filed by the applicants

29    The applicants have also filed 12 affidavits, in opposing the respondent’s interlocutory application. A number of these affidavits were also filed after the hearing. These affidavits may be summarised as follows.

1.    Affidavit of Mr Graham Garrett

30    Mr Garrett is an official with the TWU. In his affidavit sworn 12 March 2014 Mr Garrett deposes, in summary:

    He had attended the meeting involving Mr Meredith, Mr David Drew and Ms Leanne Parker on 24 February 2014 in order to assist Mr Meredith.

    Ms Parker did most of the talking at that meeting.

    Mr Meredith was not rude, evasive or obstructionist at that meeting.

    A detailed report of the investigation of Mr Meredith’s complaint, which report was prepared by Ms Parker, was provided to Mr Garrett.

2.    Affidavit of Mr Gregory O’Brien

31    Mr O’Brien is a concrete carrier, and has worked for Hanson since approximately June 2008. In his affidavit sworn 12 March 2014 Mr O’Brien deposed, in summary:

    He delivered concrete to the Hutchinson Builders site at Yatala in or around February 2014.

    He had previously delivered concrete to that site in June 2013, and noticed that the amount of debris at the site had increased since then.

    The debris included steel rods, nails and screws.

    At the time of the delivery in February 2014 Mr O’Brien was concerned that his tyres would be punctured if he entered the site, and he and two workers at the site cleaned up the yard prior to Mr O’Brien delivering the concrete.

    When he returned to the Hanson site Mr O’Brien asked if any other driver had said anything about the debris at the Yatala site, and was informed that Mr Meredith had submitted a Hazard Identification, Quality and Environmental Report (“HIQE”) concerning the site.

    Mr O’Brien also submitted a HIQE concerning the Yatala site. The next time he attended the site, however, the site had been substantially cleaned up.

    He has often delivered loads to the APC site. There are two yards at that site. He understood that in late November or early December 2013 Mr Meredith had submitted a HIQE concerning that site.

    Mr O’Brien had refused to unload concrete at the APC site yard where there was extensive debris. He was prepared, however, to unload concrete at the other yard. He has never been directed by Mr Meredith to refuse to unload concrete at the APC site.

    Since Mr Meredith submitted the HIQE concerning the APC site the conditions at the site in relation to debris have improved.

    Mr Meredith is very safety conscious, and gets on reasonably well with other LODs.

3.    Affidavit of Mr Michael Nicholson

32    Mr Nicholson is an owner driver, who has worked with Hanson for seven and a half years. He was motivated to join the TWU following encouragement by Mr Meredith.

33    In his affidavit sworn 12 March 2014 Mr Nicholson deposed that he had delivered concrete to the APC site on 27 November 2013. In particular, he deposed as follows:

10.    After I backed in, Michael Meredith called me on the 2 way radio. He was discharging in Yard 1. Michael said to me:

“Haven’t you heard? Only company trucks are going into Yard 2 because I raised a safety concern. Get out of the truck and check the state of the ground. If you are happy with it, proceed.”

11.    What I understood Michael to be saying was that I should check to see whether an unsafe amount of metal shrapnel was on the ground.

12.    As I was checking the ground I saw that some [sic] who I assume was from Advanced Pre-cast was sweeping the ground with a magnet.

13.    I recall Michael Meredith coming over to speak to me to [sic] about what he raised with me on the radio.

14.    It is really common for there to be screws, tie wire and other metal on the ground in the yards at Advanced Pre-Cast. Some yards are quite good for picking up their debris, but Advanced Pre-Cast is one of the more average yards for debris.

15.    The state of the yard is usually terrible. The business pours concrete into moulds to make concrete slabs for building projects. Often there are bits of the moulds just dropped around the place with bits of metal sticking out and they are just there on the ground where we walk. I think it is dangerous for the drivers visiting the site but also their own workers.

16.    Drivers are concerned about the metal parts on the ground because if you get [sic] puncture a tyre and you leave the site and don’t realise and the tyre goes down while you are driving down the highway, or anywhere really, you can end up blowing a tyre and run into a ditch or another car.

17.    As Michael suggested I check the ground, I got out of the truck and looked at it. It was looking much cleaner than usual because there was very little on the ground. I assumed, after seeing the magnet cleaning previously, that they had cleaned up after Michael raised the safety issue.

18.    As the site was safe I discharged my concrete.

4.    Affidavit of Mr Mark Riddell

34    Mr Riddell is an owner driver, and has worked with Hanson since 2000. In his affidavit sworn 11 March 2014 he is supportive of Mr Meredith, and in particular Mr Meredith raising concerns about the state of the APC site. Mr Riddell deposes, in summary:

    Mr Meredith raising a safety issue concerning the APC site was a legitimate thing to do.

    The APC site often has a great deal of debris, and many drivers complain about it.

    He had filed safety reports to Hanson about the state of the driveway leading to the APC site on 31 January 2013 and 10 January 2014.

5.    Affidavit of Mr Robert Hogarth

35    Mr Hogarth worked as an owner driver with Hanson between November 2011 and June 2013, although he has extensive previous experience in the transport industry. In his affidavit sworn 12 March 2014 Mr Hogarth deposes, in summary:

    The APC site is often in poor condition. He had tyre damage himself from debris after driving his truck on to the site.

    In early 2012 he reported the state of the APC site to the Hanson foreman at the Stapylton yard, however nothing was done about it.

    He recalled other drivers experiencing damage to their trucks at the APC site.

    Work practices at the APC site were poor.

6.    Affidavit of Mr Michael Meredith

36    Mr Meredith is the second applicant in the substantive proceedings in this case. He has provided a detailed affidavit, affirmed 12 March 2014. Materially in that affidavit he deposes, in summary, as follows:

    He was asked to be the TWU delegate at the Stapylton plant in August 2012 and undertook delegate training in June 2013. He takes his role as union delegate seriously.

    He accepts that he has been strong willed and forceful with managers when he has seen workplace rights ignored or seen a driver placed in unsafe working situations. He is, however, respectful.

    He sees raising issues at Hanson as part of his role as a delegate. He makes every effort to follow Hanson’s processes to report hazards at various plants and sites.

    He recalled there had been a significant amount of debris in both yards on the APC site on 26 November 2013. A piece of debris speared one of the tyres of his truck and the tyre required replacement. He informed Jason Corbett from APC and David Griffith at Hanson. He spoke with other owner drivers at Hanson and they all agreed they should not enter yard 2 at APC until they could get an undertaking from Hanson that APC would clear the site of the hazards identified. He also completed a HIQE about the APC site.

    On 27 November 2013 when he went to the APC site there was no improvement in the amount of debris on the ground. He contacted David Griffith and Alastair Adamson at Hanson and asked for an undertaking that no trucks would be sent by Hanson to the APC site. Mr Adamson refused to give the undertaking and said “we have the situation under control and we are working with Advanced Pre-Cast to remedy the problem”. Mr Meredith invoked clause 21.1 of the Carriers Agreement at this point. After the lane way was cleaned up he unloaded his truck.

    On 28 November 2013 he had a discussion with David Griffith who informed him that Mr Griffith had visited APC after-hours and had a discussion with Mr Graham Polly at APC. The site had been cleared of debris. Mr Meredith delivered concrete to APC that day without incident.

    On 29 November 2013 he attended the APC site where the following incident occurred:

50.    When I arrived, I was approached by Jason Corbett who said: “you can’t unload. I told Hanson that if you want to complain not to unload you in here.” I said “why did they send me here then? I don’t know what you are talking about.”

51.    Jason said: “If you want to complain to Hanson about this site and you don’t like the way we maintain and operate this site, and if you think you can tell other trucks not to unload and cause shit between all the people here then you are barred from this site.”

52.    I said: “who is saying that? It is not true. This is a safety issue. Drivers are picking up punctures and destroying tyres daily. We are distracted and can’t concentrate on spotters. There are two sides to every story. How did I unload and the other truck unload?” I was referring to Mick Nicholson’s truck unloading the previous day.

53.    He said: “Polly, and it doesn’t matter what you say, I spoke to you about this Yard [referring to Yard 2] and that is fine, but then I go to Sydney and you cause all this shit in Yard 1.”

54.    I said: “I ran over 15 bits of reo and two drill bits after I spoke to you.”

55.    As he began to speak again, I saw a 2 inch screw that I had just reversed over and I held it up to show him. He said: “I can take you out to Sandy Creek Road and show you shit everywhere.”

56.    We had a further discussion and the conversation ended with Jason directing me to leave the Advanced Pre-Cast site. I said: “so you are barring me for complaining about safety?” He said: “Yeah, it doesn’t matter, just get in your truck and go.”

    On 28 November 2013 he delivered concrete to the Hutchinson Builders site at Yatala, where there was a large amount of debris including sharp pieces of metal. He spoke to workers at the site but they refused to clear the debris and abused him. He then spent 10 minutes collecting debris that was on the ground, and rang David Griffith. Fifteen minutes later after he had sat there waiting he was called by an allocator from Hanson who told him to take the concrete to the Yatala dump. Mr Meredith deposed that it was not his intention to turn the issue into a major crisis with the customer, however it was necessary to raise the safety issue. After the incident he returned to the Stapylton plant and completed a HIQE.

    He was not aware of any issue at the Yatala site on 29 January 2014. He was on site for 80 minutes that day.

    Mr Meredith attended the Hutchinson Yatala site again on 28 February 2014, and again noticed debris at the site. He spoke with a worker on the site and said he would assist the worker clean up the site. He endeavoured to ring David Griffith but could not contact him. He then rang CSC at Hanson in accordance with clause 21.1 of the Carrier’s Agreement, and informed the person there that there was too much sharp debris for him to go into the loading bays. An employee at the Hutchinson Builders site approached him and after discussion told Mr Meredith to leave. CSC then rang Mr Meredith and told him to dump the concrete.

    The first time he heard that Hutchinson Builders had any complaints about him was 5 March 2014.

37    Mr Meredith also gave a different version of the events which occurred at the meeting with Mr Philip Stevenson on 13 February 2014. According to Mr Meredith’s evidence, Mr Stevenson was not impartial, questioned whether Hanson recognised unions, demanded that Mr Meredith remain and give a statement, and made a comment to the effect of “no look here, I have heard all about you”. Mr Meredith deposed that he never intended, nor behaved as if he were going to hit Mr Stevenson.

38    In relation to his meeting with Ms Parker he did not consider that he was rude or arrogant, however he also deposed:

113.    I didn’t answer any questions where I thought she was trying to bait me into an argument. For example, I didn’t feel that I should answer her question about what disciplinary action I would like to impose on Josh.

39    Mr Meredith did not agree with Ms Parker’s assessment of the meeting. He deposed further:

119.    I was not a reluctant participant. I answered all of her questions but refused to be drawn into what I saw as provocative or irrelevant questions. I gave my statement about what occurred which was the purpose of the meeting.

40    Finally, Mr Meredith gave evidence relating to repairs to his 6.0m3 truck, and affirmed that it was his intention to sell that truck as soon as possible. He also deposed:

130.    I still owe approximately $22,000 on the truck to my parents, from whom I borrowed the money to purchase the truck in 2011. Since the interlocutory orders I have only been able to repay $10,000 off the loan to them, when I should have paid them much more. My parents have been accommodating of me because they know the truck is being sold, that the sale has been delayed by the damage caused in the yard incident on 28 November 2013, and that the damage being caused in the yard incident is being covered by insurance.

7.    Second Affidavit of Mr Mark Riddell

41    In his second affidavit sworn 20 March 2014 Mr Riddell deposed, in summary:

    He works from the Hanson Springwood plant.

    Hanson has been transferring trucks to operate out of the Springwood plant this year, including two brand new 7.0m3 company trucks in January 2014.

    There has been a lot of work at Springwood.

    In his view the Springwood plant and other Hanson plants have operated with insufficient trucks to properly service customers. Customers at Springwood would be better serviced if another truck were transferred to Springwood.

    Trucks are moved regularly, and can be in up to four different plants per day.

8.    Affidavit of Mr Greg Jones

42    Mr Jones is a concrete truck owner driver. In his affidavit affirmed 21 March 2014 he deposed, in summary:

    He has worked at the Hanson Burleigh plant since 1988. Four trucks operate out of that plant.

    As work has come and gone over the years, Hanson has moved trucks around from plant to plant to suit demand. Transferring trucks from their home plants to different plants happens on a daily basis, including at Burleigh and Labrador.

    If additional trucks are transferred to a plant, Hanson will allocate more work to that plant.

    In his view moving trucks from plant to plant does not, in any noticeable way, affect the earnings of each owner driver. Hanson has recently brought 18 company trucks back from North Queensland to work in the fleet.

    Mr Meredith always appears very controlled.

9.    Affidavit of Mr John Kellythorn

43    Mr Kellythorn is an LOD driver and is currently the secretary of the Hanson Owner Drivers Committee. In his affidavit sworn 20 March 2014 he gave evidence that:

    Hanson placed two brand new company trucks into West End late in 2013.

    There is no reason why an owner driver cannot be moved into a plant in the place of a company truck, and there is no reason why a company truck cannot be moved to another plant to enable an owner driver to work from that plant.

    In relation to Mr Drew’s evidence concerning the manual override of the TESYS system, there have been numerous instances where Hanson has been required to send only drivers with specific qualifications to particular sites (for example, the Enoggera Army Barracks and Port of Brisbane). There is no particular inconvenience associated with the need to override the TESYS system for Mr Meredith, when the same approach occurs daily in relation to other customers.

    He does not consider Mr Meredith aggressive.

10.    Second Affidavit of Mr Gregory O’Brien

44    In his affidavit affirmed 21 March 2014 Mr O’Brien gave numerous examples of LOD drivers in 2009, 2010 and 2014 being moved from one Hanson yard to another, without apparent inconvenience to Hanson.

11.    Second Affidavit of Mr Michael Nicholson

45    In his affidavit sworn 21 March 2014 Mr Nicholson deposed that he is aware that Hanson moves company trucks from one plant to another from time to time. He is also aware of drivers who may, for example, live at the Gold Coast but drive out of Brisbane plants. While he agrees with Mr Drew that moving a driver may cause inconvenience to Hanson, it is questionable whether Hanson takes into account inconvenience to an LOD driver if the driver is transferred.

46    Mr Nicholson gave evidence, however, that the TESYS system is frequently overridden manually. Any suggestion by Hanson that it is a rare occurrence is not true.

47    Further, Mr Nicholson deposed that if Mr Meredith were transferred to Labrador it is unlikely that he would need to do a delivery to APC, because loads to APC rarely occur out of Labrador.

12.    Affidavit of Mr Michael Meredith

48    Mr Meredith affirmed a further affidavit on 21 March 2014. In that affidavit Mr Meredith gave evidence, materially, as follows:

    He disagrees with Mr Cooper that Hanson delivers concrete to the Yatala site on a daily basis.

    He has successfully worked with people at other pre-cast yards.

    He was able to deliver materials to other Hutchinson Builders sites between 25 October 2013 and 10 March 2014 without incident.

    In relation to transfer fees for trucks, a truck transfer fee is only payable by Hanson if the distance driven is a 40 kilometres or more return trip.

    In relation to the alleged inconvenience of manually overriding the TESYS system, this has been occurring anyway since he was banned from the APC site in November 2013.

    When he commenced as an owner driver his home plant was Labrador, but he was transferred in or around July 2012 to Stapylton.

    David Griffith agreed that Mr Meredith was being punished for complaining about safety issues at APC.

    He has not intentionally harmed Hanson’s relationship with customers, because that directly harms his ability to earn income.

    He is aware that company drivers are regularly moved around, and gave examples of four such drivers.

    He denies that he is rude and arrogant if things do not go his way, and has not been physically threatening to other staff or LOD drivers

    He has now agreed to the sale of his 6.0m3 truck for $27,000.

Consideration

Vacating interlocutory orders

49    Counsel for the applicants in this case has submitted that a party is entitled to “one bite at that cherry” when interlocutory orders are sought to preserve the status quo pending final determination on the merits. In particular, he relied on comments of Rares J in Apotex Pty Ltd v AstraZeneca AB (2011) 94 IPR 508 at [62] to that effect, and on that basis contended that the Court ought not entertain an application by the respondents to vacate Order 1 of interlocutory orders made on 24 October 2013.

50    In my view this submission is not sustainable, for a number of reasons.

51    First, the Court has clear authority to vacate an interlocutory order, irrespective whether that order has been entered. That this is so is clear from the terms of r 39.04 and r 39.05 of the Federal Court Rules 2011 (Cth): Western Suburbs Electrical Supplies Pty Limited v Russell Electrical Services Pty Ltd (unreported, Lindgren J, 3 August 1994) at [22]-[23]; Patel v Minister for Immigration and Citizenship (No 4) (2012) 208 FCR 128 at [31]; Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) (2011) 206 IR 320.

52    Second, it is not in dispute that the orders of this Court made on 24 October 2013 in these proceedings included liberty to apply on three days’ notice. It follows that the respondents have liberty to apply to vacate orders made.

53    Third, as was explained by the High Court in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215, the Court has power to reopen its orders in circumstances where there is some matter calling for review or where “the interests of justice so require”. However the Court will only do so with great caution, and a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required without fault on its part.

54    Fourth, I note that in an outline of submissions filed on 21 March 2014 the applicants themselves suggest that Order 1 of 24 October 2013 be “tweaked” to qualify reference to the “usual cyclical rostering arrangements” by inserting the words “other than to the Advanced Pre-Cast yard and the pre-cast yard at Sandy Creek Road, Yatala”. This submission is inconsistent with the applicants’ earlier contention that in an interlocutory application a party is entitled only to “one bite at that cherry” – indeed the applicants by this submission appear to have presented themselves for a second “bite”.

55    The respondents have made it clear that they are not seeking leave to appeal the orders of 24 October 2013. In this case it is apparent that the orders of 24 October 2013 have not, as of the date of this hearing, been entered. In my view the Court is empowered to consider the interlocutory application currently before it to vacate interlocutory orders previously made.

Contentions of the parties

56    Generally, the respondents rely on two grounds for their application that Order 1 of 24 October 2013 be vacated.

57    The primary ground may be summarised as being that events have occurred since the hearing of 24 October 2013, the events are as a result of conduct of Mr Meredith, and the balance of convenience has shifted, such that the interlocutory injunction granted on 24 October 2013 should not be maintained.

58    The second ground is that the Court ought revisit the question whether there is a serious question to be tried, in light of new and previously undisclosed evidence to the effect that:

    Any prospect that Mr Meredith was facing “financial ruin” in October 2013 should the interlocutory injunction not be granted was clearly false, because his primary creditors in relation to the loan to purchase the original 6.0m3 truck were his parents; and

    As was clear from a recording made by Mr Meredith at a meeting of owner drivers of 24 June 2013, Mr Meredith not only did not raise any safety issues at sites including APC and the Hutchinson Yatala site, but it was clear that he wished to be transferred to another Hanson site which would be more profitable for him.

59    The applicants oppose any order vacating Order 1 of 24 October 2013. In summary, the applicants submit that:

    There has not been any material alteration of the parties’ relative positions to shift the balance of convenience.

    The respondents seek to make much of the fact that, faced with an unsafe situation, Mr Meredith required the hazard to be dealt with before he reversed his truck over the hazard to unload his load of pre-mix concrete.

    The risks at the various sites which precipitated Mr Meredith’s actions were genuine, and other drivers had similar problems. The reality is that Mr Meredith has been “banned” from two sites because he took a stand at them on genuine safety issues, on his own behalf and as delegate of the TWU.

    There is evidence that safety has improved for all drivers as a result of Mr Meredith’s actions, at least at the APC site.

    The evidence does not suggest any real danger to Hanson’s commercial relationships.

Balance of Convenience

60    Safety in the workplace is an issue of paramount importance. It scarcely need be said that the Court does not, in any way, endorse a workplace where workers are placed at risk, and does not endorse conduct of employers who do not take into account workers’ legitimate complaints concerning danger in the workplace.

61    Having made these observations, however, it is clear that since this Court made orders on 24 October 2013, events have developed such that the balance of convenience has shifted, and Order 1 made on that date should be vacated. I have reached this view for the following reasons.

62    First, it is apparent that it is no longer practically possible for Hanson to comply with the terms of Order 1 made on 24 October 2013. Order 1 requires Hanson to provide to the first applicant – a company controlled by Mr Meredith – “casual cartage in accordance with its usual cyclical rostering arrangements”. It is not in dispute that Mr Meredith has been banned by the two main customers of Hanson’s Stapylton plant (from which Mr Meredith works) from delivering concrete to the sites of those respective customers. It is also not in dispute that decisions of management at APC and Hutchinson Builders are outside the control of Hanson. On the material before the Court it does not appear possible for Hanson to provide work to the applicants in accordance with its usual cyclical rostering arrangements – in order to accommodate Mr Meredith and the first applicant, Hanson is now required to endeavour to make arrangements outside those usual cyclical rostering arrangements.

63    Second, there is evidence before the Court that a continuation of Order 1 of 24 October 2013, and any ongoing requirement of Hanson to offer work to Mr Meredith as a driver to deliver concrete to APC and Hutchinson Builders, could put at risk Hanson’s commercial relationships with those customers. I note in particular evidence of Mr Smith and Mr Cooper. The circumstances currently before the Court differ significantly from those which prevailed at the time the interlocutory orders were made in October 2013. While the applicants dispute that there is any real evidence that Hanson’s commercial relationships with its customers are at risk, I accept the evidence of Mr Smith and Mr Cooper at this interlocutory level (cf Palm Springs Ltd v Darling [2002] FCA 277 at [20]; Pampered Paws Connection Pty Ltd v Pets Paradise Franchising (QLD) Pty Ltd (No 2) [2008] FCA 1716 at [17]; Australian Securities Commission v Macleod (unreported, Gummow J, 3 August 1992) at [2]; Australian Competition & Consumer Commission v Pauls Ltd (2000) ATPR 41-747 at [52]; ICAP Australia Pty Limited v BGC Partners (Australia) Pty Limited [2007] FCA 467 at [6]). Certainly no evidence has been adduced by the applicants to rebut this evidence. If the relationships between Hanson and its customers are at risk from conduct of Mr Meredith not only does this support an inference of commercial prejudice to Hanson, it also supports an inference of potential commercial prejudice to other drivers engaged by Hanson out of the Stapylton plant who are, I understand, reliant for at least some income on deliveries of concrete to customers including APC and Hutchinson Builders.

64    Third, and importantly, it is clear that the current circumstances have arisen as a result of conduct of Mr Meredith. It is equally clear that Hanson is not at fault.

65    The evidence currently before the Court supports a finding that Mr Meredith has been genuine in his endeavours to act as TWU delegate at the Stapylton plant, and that he has had genuine concerns about safety at the APC and Hutchinson Builders sites. However, it is equally apparent – even from Mr Meredith’s own evidence and concessions of his Counsel during the hearing – that Mr Meredith can be forceful, inflexible, and difficult. Submissions of Mr Rebetzke for the applicants, to the effect that Mr Meredith was “doing his job”, “doing the right thing”, and indeed was no different from other drivers who had similar concerns about debris in simply making complaints about the condition of the APC and Hutchinson Yatala sites, do not ring true in light of other evidence before the Court. So, for example:

    Evidence before the Court supports findings that other drivers had concerns about the APC and Hutchinson Yatala sites, and had provided reports to Hanson, but none of those drivers had been banned by those customers as Mr Meredith has been.

    I am not persuaded at this stage that there is evidence to support a finding that the customers had banned Mr Meredith because, for example, of his position in the TWU. Such evidence as is before the Court (including from Mr Meredith’s own account of interactions between himself and representatives of the customers) supports an inference that the customers took offence at Mr Meredith’s attitude and conduct rather than the mere fact that he had raised concerns about debris.

    While evidence from other drivers filed on behalf of the applicants does suggest that there was debris on both the APC site and the Hutchinson Yatala site:

o    that evidence supports a finding at this stage that it is not unusual for such sites to be littered with debris as a matter of practicality;

o    it is clear that the drivers, as a practical matter, would either request debris to be cleared or assist in clearing it;

o    the evidence of Mr Riddell was that his primary concern at the APC site was dust rather than debris.

66    In my view this evidence is, in fact, supportive of the position advanced by Hanson that it is primarily Mr Meredith’s conduct (including his inflexible approach to solving problems inherent in building sites) which has caused difficulties with customers. The evidence of witnesses for the applicants positively endorsing Mr Meredith’s conduct and character is inconsistent not only with evidence adduced by the respondents, but with the fact that he was apparently banned by two Hanson customers because of this attitude in the workplace.

67    In this respect I also note the submission of Mr Rebetzke that it was incumbent on Hanson to resolve issues concerning Mr Meredith with its customers (transcript 13 March 2014 p 38 ll 24-25). Such evidence as is before the Court indicates that there had been discussions between Hanson management and customer representatives following the incidents involving Mr Meredith (I note, for example evidence of Mr Griffith and Mr Drew, and indeed evidence of Mr Meredith to the effect that Hanson management contacted customers following Mr Meredith’s complaints). I do not accept at this stage that Hanson or its employees have been derelict in endeavouring to resolve issues with customers concerning Mr Meredith.

68    Fourth, while Mr Meredith claims to be respectful at the workplace there is evidence before the Court that he is unco-operative if he deems it appropriate, and has been aggressive. So, for example, I note:

    evidence of Mr Smith and Mr Breen concerning Mr Meredith’s refusal to follow directions at the APC site;

    evidence concerning the motivation for Mr Josh Gwynne to tamper with Mr Meredith’s union notice board, including Mr Meredith’s alleged refusal to follow Mr Gwynne’s directions;

    evidence of Mr Stevenson concerning the meeting involving Mr Meredith on 13 February 2014.

69    Indeed, I note from Mr Meredith’s own evidence that he appears to take offence at matters raised with him when there may be no intention to offend, one example being the view he took of Ms Parker asking him his views of possible appropriate outcomes of her investigation into Mr Meredith’s complaint concerning Mr Josh Gwynne when the evidence suggests that such a question was perfectly reasonable in the circumstances.

70    In my view this evidence is further supportive of the position advanced by the respondents that the balance of convenience has shifted as a result of Mr Meredith’s conduct.

71    Fifth, as I have already noted it does not appear to be in contention that the two major customers of Hanson at the Stapylton plant are APC and Hutchinson Builders, and that, as a matter of practicality, for Hanson to continue to comply with the interlocutory orders currently in force it would be necessary for Hanson to transfer Mr Meredith to one of the other two Hanson plants in south-east Queensland. Certainly Counsel for the applicants submitted that this is the case (transcript 13 March 2014 p 39 ll 3-22).

72    The respondents submitted that Mr Meredith desires to be transferred to another Hanson plant, because it would be more profitable for him with his 7.0m3 truck if this were to occur. Dr Spry referred me in particular to the transcript of a recording of a meeting of owner drivers held on 24 June 2013, which recording was made by Mr Meredith. The transcript, which appears to have been prepared by the solicitors for the respondents, is annexed to the first affidavit of Mr Cameron McDonald as annexure CM-5. In that transcript it appears that Mr Meredith expressed concern about the nature of work provided by the Hanson Stapylton yard, in particular the fact that it supplies customers who operate pre-cast yards, which affects the earnings of the owner drivers including Mr Meredith.

73    In my view this evidence is of relatively little moment. While Mr Meredith may have preferred to operate out of a different Hanson plant, I am not persuaded at this stage that his conduct of which Hanson now complains has been motivated to force Hanson to transfer him to a plant which suits him better.

74    A more relevant question is whether in fact it is practical for Mr Meredith to be transferred to another Hanson plant, and how such an action would affect the balance of convenience in this case.

75    Both applicants and respondents have filed extensive evidence as to the practicality of transferring Mr Meredith to another Hanson plant. On balance, I do not consider that the evidence supports a finding, at this interlocutory stage, that such a transfer would be practical. I take this view in light of:

    The evidence of the respondents concerning inconvenience to their business, as well as potentially other drivers, of transferring Mr Meredith away from Stapylton to another plant; and

    The prospect that Mr Meredith may still be rostered to make deliveries to APC and Hutchinson Builders out of another Hanson plant.

76    I do not accept that simply because, historically, it appears that other drivers have been transferred from one Hanson plant to another, it is a simple matter to transfer Mr Meredith in the absence of a business case for transfer. It is difficult to determine the credence which should be ascribed to largely anecdotal evidence given by witnesses on behalf of the applicants in relation to other drivers being transferred. On balance, I prefer the evidence given on behalf of the respondents, which in respect of this issue I consider more informed and credible.

77    Sixth, as I have already noted in submissions filed after the hearing the applicants submitted that the interlocutory order in place could be modified to read:

Until hearing and determination of this proceeding, or further order, the First Respondent will provide to the First Applicant casual cartage in accordance with its usual cyclical rostering arrangements other than to the Advanced Pre-Cast yard and the pre-cast yard at Sandy Creek Road, Yatala, for the First Applicant’s 7.0m3 Freightliner Columbia CL112 Prime Mover, VIN number 1FVMF0CY4CLBM3934 to carry out casual cartage for the First Respondent as if the First Applicant and the First Respondent were performing their respective obligations under the Hanson Construction Materials SEQ 7.0m3 Concrete Carriers Agreement annexed and marked MM8 to the Affidavit of Michael Meredith filed 10 September 2013.

(Emphasis added.)

78    The applicants make this submission on the assumptions that:

    manual overriding of the TESYS system is routine practice;

    bypassing trucks who are not inducted into particular sites (for example Enoggera Barracks and the Port of Brisbane) is routine; and

    Hanson has successfully manually overridden the TESYS system to allocate Mr Meredith other work (when automatically allocated APC work) for approximately three months.

79    In my view, however, it is not appropriate to modify the interlocutory order in the manner now sought after the hearing by the applicants, in circumstances where:

    It appears that the necessity for the modification has been caused by conduct of Mr Meredith.

    The evidence supports a finding that a significant proportion of work out of the Stapylton plant concerns deliveries to APC and Hutchinson Builders, and to that extent the proposed order is inconsistent with the concept of Mr Meredith being allocated work in accordance with the “usual cyclical rostering arrangements”; and

    I am not persuaded that the manual override of the TESYS system is as “routine” as the applicants submit. Indeed, it is clear from the material before the Court that the circumstances involving Enoggera Barracks and Port of Brisbane are dictated by business needs and commercial reasons. They do not require special arrangements to be made by the respondents for one person. Rather, the suggested order imposes further obligations on the respondents to monitor work allocated to Mr Meredith, and to that extent imposes a new burden upon them.

80    Indeed, the order proposed by the applicants extends beyond mere “tweaking” as they submit, and requires changes to the status quo which are not appropriate where the balance of convenience has clearly shifted.

81    Seventh, and of particular concern, is the fact that there is evidence that Mr Meredith is apparently indebted in respect of loans concerning the acquisition of his trucks. I note the submission of the respondents that new evidence before the Court impacts upon the question whether there was a serious question to be tried, and whether Order 1 ought to have been made on 24 October 2013. In particular, the respondents refer me to the evidence in Mr Meredith’s affidavit of 12 March 2014 that, in fact, his parents were his creditors in relation to the loan for his 6.0m3 truck. The respondents submit that, accordingly, Mr Meredith’s evidence in his affidavit of 6 September 2013 that he was potentially facing financial ruin because of his loans was false.

82    While it is somewhat surprising that the familial identity of Mr Meredith’s creditors in respect of the loan for his 6.0m3 truck was not previously disclosed, I am not satisfied at this stage that Mr Meredith’s claim of potentially facing financial ruin was without foundation. It is not in dispute that he was (and presumably, continues to be) in debt to a third party, Hino Financial Services, in the sum of $125,583.03 in respect of the purchase of his 7.0m3 truck. To this extent, it appears that Mr Meredith will be under significant financial pressure if Order 1 of 24 October 2013 is vacated.

83    In my view, however, while this is of concern, it is also clear that the respondents have been placed in a position of utmost difficulty in relation to supplying work to Mr Meredith, by his own conduct. I am satisfied that the balance of convenience has shifted, such that Order 1 of 24 October 2013 should be vacated.

84    I am further fortified in this conclusion by the fact that the substantive trial in these proceedings is scheduled to occur in July 2014, noted by Counsel for the applicants as being “in the not too distant future” (transcript 13 March 2014 p 48 l 26). It follows that inconvenience to Mr Meredith occasioned by the vacation of Order 1 will be of a relatively short-term nature, pending final determination of these proceedings.

Serious question to be tried

85    In my view there continues to be a serious question to be tried in these proceedings. Notwithstanding the recent revelation of Mr Meredith concerning the identity of at least some of his creditors, as I have already indicated in the circumstances of this case I am not persuaded that this fresh evidence impacts upon the question before the Court.

Associate:

Dated:    26 March 2014