xX IN THE FEDERAL COURT at 1977 Ay OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION Qld. No. G5 of 1977 IN THE MATTER of the Trade Practices Act 1974 BETWEEN: UTAH DEVELOPMENT COMPANY, AUSTRALIAN MUTUAL PROVIDENT ee RA AN A ERUEVENT SOCIETY and UTAH MINING AUSTRALIA LIMITED Applicants AND: THE SEAMEN'S UNION OF AUSTRALIA, ELIOT VALENS ELLIOTT NOEL CLAUDE BENJAMIN, WAYNE STANLEY BISHOP, JEREMIAH BREEN, MICHAEL PATRICK BREEN, CHRISTOPHER BROWN-KING, JOHN CHARLES FURLONG, KENNETH ALLAN HARGREAVES, WARREN JOHN HILL, JOHN UMA HIVES, LAURENCE JOSEPH HORGAN, CLIFFORD JOHN JACKSON, JONATHAN KAREL KAPRISI, BRUCE EDWIN KENNEDY, HARRY ALFRED PITT, PETER RAYMOND SALISBURY, PATRICK JERRY THAIDAY, EDWARD ANTHONY WALL, GARY RAYMOND WALL a GARY RAYMOND WALL Respondents Qld. No. G6 of 1977 AND IN THE MATTER of the Trade Practices Act 1974 BETWEEN: WALLACE CLYDE FIFE Minister of State for Business and Consumer Affairs of the Commonwealth of Australia Applicant AND: THE SEAMEN'S UNION OF AUSTRALIA, ELIOT VALENS ELLIOTT NOEL CLAUDE BENJAMIN, WAYNE STANLEY BISHOP, JEREMIAH BREEN, MICHAEL PATRICK BREEN, CHRISTOPHER BROWN-KING, JOHN CHARLES FURLONG, KENNETH ALLAN HARGREAVES. WARREN JOHN HILL, JOHN UMA HIVES, LAURENCE JOSEPH HORGAN, CLIFFORD JOHN JACKSON, JONATHAN KAREL KAPRISI. BRUCE EDWIN KENNEDY, HARRY ALFRED PITT, PETER RAYMOND SALISBURY, PATRICK JERRY THAIDAY, EDWARD ANTHONY WALL, GARY RAYMOND WALL ee ee ee a Oe a Respondents 22 DECEMBER 1977 KEELY, J. JUDGMENT In matter Qld. No. G5 of 1977 application was made by Utah Development Company, Australian Mutual Provident Society and Utah Mining Australia Limited (the Utah applicants) for an order under s. 45D and s. 80 of the Trade Practices Act 1974 (the Act) calling upon the respondents to show cause why injunctions should not be granted against the respondents and each of them and also applying for the grant of interim injunctions (the Utah application). In matter Qld. No. G6 of 1977, Wallace Clyde Fife, Minister of State for Business and Consumer Affairs of the Commonwealth of Australia (the applicant Minister) sought an order to show cause in virtually identical terms against the same respondents (the Minister's application). On the application of Mr. Thomas Q.C., who appeared with Mr. G. Crook for the applicant Minister, an order was made without objection that the application in matter Qld. No. G6 of 1977 be heard at the same time as the Utah application. The Minister's application is supported by an affidavit by Kerry Josephine Adby, the Director, Trade Practices Branch, Department of Business and Consumer Affairs, who, after referring to the seven affidavits filed on behalf of the Utah applicants in matter Qld. No. G5 of 1977, set out the allegations made against the respondents in the following terms:~ "3, I have read those Affidavits and I verily believe the following - (a) The Utah Development Company is and has at material times engaged in the extraction and export of coal in combination with Mitsubishi Development Pty. Ltd., Utah Mining Australia Limited and Australian Mutual Provident Society at mines in Central Queensland located at Goonyella, Saraji and Peak Downs. (b) The parties referred to in paragraph (a) operate under an agreement entered into between themselves known as the Central Queensland Coal Associates Agreement an agreement enacted into law by the Queensland Parliament as the Central Queensland Coal Associates Agreement Act . 1968 and the Joint Venture operated by the parties is referred to in this Affidavit as "the Joint Venture". (c) The coal is railed from Goonyella, Saraji and Peak Downs by Queensland Railways to a Port on the Queensland coast known as Hay Point where the coal is stock-piled to await shipment to coal buyers in Europe and Japan. (d) The coal is shipped to buyers in a number of vessels but the ones in question are owned by Utah Transport Incorporated, which owns six vessels and Orco Orange Corporation and Orco Green Corporation, both incorporated in Liberia, each of which companies owns one vessel. (e) Since at least as early as May 1977 the Seamen's Union of Australia has tried to persuade Utah Development Company to cause the ships referred to in paragraph 3(d) to be manned with Australian crews but the Utah Development Company has declined to do so and is not legally obliged to man these ships with Australian crews. (£) The Seamen's Union of Australia is a Union registered under the provisions of the Conciliation and Arbitration Act 1904 and each person nm:: .d as a respondent in this application is a member of at Union. (g) Apart from occasions wren members of The Seamen's Union of Australia at Hay Point have been on strike generally, when no ships at all are berthed, eight ships only are involved, namely the ships owned by the companies referred to in paragraph 3(d) of this Affidavit. (h) The Seamen's Union of Australia and its members regard a "ban" as having been imposed on the relevant ships which means that no union members will man tugs and line boats to bring in and berth the relevant ships. (i) In consequence the relevant ships are forced to berth without the assistance of tugs or line boats and this involves risk, delay and loss to Utah Development Company and the othe: companies of the Joint Venture. (j) This situation commenced in May 1977 and continucs to the present. (k) A number of statements have been made by representatives of The Seamen's Union of Australia to the effect that the ban was still on the relevant vessels because Utah Development Company was not having meaningful negotiations on the manning of these vessels by Australian seamen. (1) The Seamen's Union of Australia intends to retain the ban unless and until the Utah Development Company agrees to its demands. (m) The men who operate the relevant tugs and line boats are not employees of the Utah Development Company or of any of the Joint Venture companies responsible for the mining and export of the relevant coal nor are they employees of any of the other Utah companies, namely Utah International Incorporated, Utah Transport Incorporated, Utah International Finance Corporation, Hay Point Services Pty. Ltd., Orco Orange Corporation, Orco Green Corporation or Utah Shippers Incorporated. (n) There is no industrial dispute between any of the companies or corporations referred to in paragraph 3(m) and the relevant seamen or The Seamen's Union of Australia. (o) The respondents (other than The Seamen's Union of Australia and Eliot Valens Elliott, who is its Secretary) are the employees who have been refusing to man the tugs and line boats to bring in, berth or de-berth the relevant ships." On 9 December 1977 I decided certain procedural matters, expressed certain views as to the width of the interim injunction then sought and adjourned the proceedings to 15 December 1977, partly for the purpose of enabling the Utah applicants and the applicant Minister to file an amended proposed order to show cause. On 15 December 1977 all parties were heard as to the appropriate form of the proposed orders to show cause. I have decided to issue identical orders to show cause in the two matters in the form ultimately advanced by the Utah applicants (subject to certain quite minor amendments). The order is in essence the order to show cause proposed by the Utah applicants in their application Qld. No. G5 of 1977, dated 23 November 1977, together with two additional orders which are in substance, although with necessary changes in wording, the 'two orders proposed by the Utah applicants in their application dated 14 December 1977 for the grant of interim injunctions. The orders to show cause are made on the basis of the particulars supplied to the respondents and filed in the Court by the Utah applicants and the applicant Minister respectively. Both the Utah application and the Minister's application are based upon the alleged conduct of all of the respondents, other than The Seamen's Union of Australia (the Union) and the respondent Elliott, in declining to work at various times for J. Fenwick & Co. Pty. Ltd. and for J. Fenwick & Co. (Hay Point) Pty. Ltd. when the work involved manning a tug or lineboat to provide berthing or unberthing services for one or other of the 8 vessels, the names of which appear in the application by the Utah applicants for an interim injunction (set out later in these reasons). It is alleged that the conduct of all of the respondents has been engaged in for the purpose, and has had and is likely to have the effect, of causing substantial loss or damage to the coal exporting business of the Utah applicants. The Utah applicants initially sought an interim injunction in terms restraining each of the respondents whether by themselves or their agents in concert with any other person from engaging in conduct that hinders or prevents the supply , of services by J. Fenwick & Co. Pty. Ltd. and/or J. Fenwick & Co. (Hay Point) Pty. Ltd. to Utah Development Company, Mitsubishi Development Pty. Ltd., Australian Mutual Provident Society, Utah Mining Australia Limited or any of them. On 15 December 1977 the Utah applicants asked the Court to grant interim injunctions in the following terms:- "1, That the respondents other than the respondents The Seamen's Union of Australia and Eliot Valens Elliott be until further order restrained from engaging in the following conduct namely: withholding, in concert with any person whatever, his or their labour from J. Fenwick & Co. Pty. Ltd. or J. Fenwick & Co. (Hay Point) Pty. Ltd. or both when and to the extent that such labour is according to the ordinary course of practice required for the purpose of bringing in, berthing, or de-berthing the following vessels namely the Lake Mendocino, Lake Almanor, Lake Tahoe, Lake Shasta, Lake Arrowhead, Lake Berryessa, Orco Miner or Orco Trader, or for the purpose of manning the tugs Broadsound or Belyando or the line boats Nebo or Sarina to enable any of the said eight vessels to be brought in, berthed or de-berthed at Hay Point Queensland - where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the coal exporting business of the applicants Utah Development Company, Australian Mutual Provident Society Limited and Utah Mining Australia Limited d except where such conduct is within the description in paragraph (a) or paragraph (b) of Section 45D(3) of the said Act. . 2. That all the respondents be until further order restrained from engaging in the following conduct namely: aiding, abetting, counselling, procuring, inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour from J. Fenwick & Co. Pty. Ltd. or J. Fenwick & Co. (Hay Point) Pty. Ltd. or both when and to the extent that such labour is according to the ordinary course of practice required for the purpose of bringing in, berthing or de-berthing the following vessels nameiy the Lake Mendocino, Lake Almanor, Lake Tahoe, Lake Shasta, Lake Arrowhead, . Lake Berryessa, Orco Miner or Orco Trader, or for the purpose of manning the tugs Broadsound or Belyando or the line boats Nebo or Sarina to enable any of the said eight vessels to be brought in, berthed or de-berthed at Hay Point Queensland - where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the coal exporting business of the applicants Utah Development Company, Australian Mutual Provident Society Limited and Utah Mining Australia Limited except where such conduct is within the description in paragraph (a) or paragraph (b) of Section 45D (3) of the said Act." Section 80 of the Act, in dealing with interim injunctions, provides as follows:- "(2) Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under sub-section (1). (3) The Court may rescind or vary an injunction granted under sub-section (1) or (2). (4) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1) the Court may - (a) if it is satisfied that the person has engaged in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct. of that kind; or (b) if in the opinion of the Court it is desirable to do so - grant an interim injunction under sub-section (2) restraining the person from engaging in conduct of that kind, whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind. (5) Where an application is made to the Court for the grant of an injunction restraining a person from engaging in conduct of a particular kind, being conduct referred to in sub-section (1), the Court may - (a) if it appears to the Court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind - grant an injunction under sub-section (1) restraining the person from engaging in conduct of that kind; or (b) if in the opinion of the Court it is desirable to do so - grant an interim injunction under sub-section (2) restraining the person from engaging in conduct of that kind, whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind." In World Series Cricket Pty. Ltd. v. Robert James Parish (1977 A.T.P.R. 40-040) Bowen C.J. referred to s. 80(2) and said:- "These words confer a judicial discretion of the widest kind upon the Court. It is not an arbitrary discretion but one to be exercised judicially in accordance with principle. The principles concerning the grant of interlocutory injunctions were developed in the Court of Chancery, but have been moulded to what is appropriate for different jurisdictions in which interlocutory relief may be obtained. Whether or not the jurisdiction being exercised is equitable, it is inherent in the nature of an application for interlocutory relief that the evidence upon which the application must be determined will be incomplete and unsatisfactory for the purpose of makiug a final finding. In Beecham Group Limited v. Bristol Laboratories Pty. Limited (1968) 118 C.L.R. 618, the ... High Court expressed the view that in all cases, including patent cases, a court, when contemplating granting or refusing interlocutory relief, must direct itself to both the prima facie strength of the plaintiff's claim and the balance of convenience. A plaintiff is required to make out a prima facie case, 'in the sense that if the evidence remains as it is, there is a probability that at the trial of the action, the plaintiff will be held entitled to relief'. (Ibid. p. 622). The strength of the case which the plaintiff must make.out will depend upon the nature of the right which he is seeking to assert, and the consequences which will flow from the making of the interlocutory order. However, where the facts are seriously in dispute, the court will not undertake a preliminary trial of the action * in order to forecast a probable result, but rather, if the plaintiff has a fair chance of success (and what will be required will vary according to the nature of the case), the court will proceed to look to the balance of convenience." As this is an interlocutory proceeding there has not been a full investigation of the facts which might include cross-examination of all the deponents whose affidavits have been filed on behalf of the Utah applicants and the respondents respectively. There was short cross-examination by counsel for the respondents of one Timothy Roscoe Winterer whose affidavit was filed on behalf of the Utah applicants and there was short cross-examination of Eliot Valens Elliott, one of the respondents. It was argued by Mr. Jackson Q.C., who appeared with Mr. T.R. Hartigan on behalf of all of the respondents in both matters, that the Utah applicants had not shown a prima facie case as to all the elements necessary to be established for them to be held entitled to the interim injunctions sought. As the proceedings are at an interlocutory stage, it is not By . desirable that I should form any concluded views as te the rs er i evidence on the issues in dispute. It is sufficient for me to say that, on the evidence before the Court at this stage, I consider that a prima facie case has been made out, However, I shall deal in a little more detail with the aspect on which Mr. Jackson appeared to place most reliance in opposing the grant of interim injunctions. He argued that the Utah applicants have not shown a prima facie case that the conduct of each respondent has been "engaged in for the purpose -.. of causing substantial loss or damage to the business of" the Utah applicants (s. 45D(1)(a)). On that aspect Mr. Jackson placed affidavit evidence before the Court as to the purpose of each respondent (other than the Union and the respondent Elliott) in declining to work on specified days and as to the purpose of the respondent Elliott in his actions and dealings with the Utah applicants. The affidavit evidence as to the purpose of the respondents in declining to work is illustrated by the affidavit of Warren John Hill in the following paragraphs:- "6, I deny that my actions in declining to work on the occasions hereinbefore referred to were engaged in for the purpose of causing substantial loss or damage to the business of any corporation. My purpose in declining to work on the occasions in question has been to register, in the only way in which I can, my protest against what I regard as pernicious practices and conduct engaged in 'by Utah Development Company and by the companies which are associated with it. Those practices are:- (a) The failure of those companies to employ any Australian seamen whatsoever on ships engaged in the coal export trade from Australia, but to use instead Spanish crews on ships flying Liberian flags of convenience. ll. i (b) The employment of Spanish seamen on such ships on terms different from those recommended by the International Transport Workers Federation. (c) The use of ships in relation to which there are no safety requirements imposed by the government of the flag nation, a matter which appears to be confirmed by paragraph 10 of the affidavit of Douglas Aaron Sutherland McCallum filed herein. (d) The failure of Utah Development Company to enter into meaningful negotiations with the Seamen's Union of Australia in relation to the use of Australian seamen on such ships. (e) The institution by Utah Development Company of Action No. 1427 of 1977 in the Supreme Court of Queensland, which +I regard as the taking of punitive action by a foreign company against Australian unions, union officials and unionists who are endeavouring to secure work for Australians, and which I also regard as a threat to the continued effective existence of the union movement in Australia. 7. The views which I hold are views which I know to be held also by all the members of the Seamen's Union of Australia with whom I work. 8. I deny that my declining to work on the occasions referred to above has occurred in concert with the other respondents or any of them and I say that there has been no pressure or influence brought to bear on me by any of the respondents to reach the decision not to work on those occasions. Each such decision has been my own. I know, however, that the views which I have expressed are shared by other members of the Seamen's Union of Australia, and by that Union itself." As to each other respondent (other than the Union and the respondent Elliott) affidavit evidence in identical terms was before the Court in some cases by the particular respondent and in the case of each other respondent by the affidavit of anothe: respondent stating that he had been informed by the other respondent: "and verily believe that he agrees with the statements made by me in paragraphs 3, 5, 6, 7, 8 and 9 hereof as if such statements relatdlto his own conduct and motivations". 12. As I have already said it is not my function at this interlocutory stage to form any concluded views as to the facts: my function is to consider whether the Utah applicants have at this stage established a prima facie case in the sense used in Beecham's case (supra. ) The affidavits relied on by Mr. Jackson Q.C. deny that the actions of the respondent employees in declining to work were "engaged in for the purpose of causing substantial loss or damage to the business of" any corporation and then say in each case: "My purpose in declining to work on the occasions in question has been to register in the only way in which I can, my protest against what I regard as pernicious practices and conduct ... The words which I have just quoted containing the denial of the purpose are identical with the words in s. 45D(1)(a) of the Act. However s. 45D(2) provides that: "... a person shall be deemed to engage in conduct for a purpose mentioned in" s. 45D(1) "if he engages in that conduct for purposes that include that purpose". The words used in the affidavits do not expressly deny that the respondent engaged "in that conduct for purposes that include that purpose". The statements in the affidavits do not deny either expressly or by necessary implication that there were more purposes than one, and, if so, that those purposes included "the purpose of causing substantial loss or damage to the business of the corporation", Each affidavit only refers to "my purpose" and 13. i those words are not necessarily inconsistent with the contemporaneous existence of other purposes. As the denials in the affidavits use the exact words of s. 45D(1) but are not so expressed as to amount to denials that the forbidden purpose was one of the purposes of each respondent in engaging in the conduct, the evidence in the affidavits filed on behalf of the respondents, other than the Union and the respondent Elliott, in my view does not contradict the prima facie case shown by all 'the evidence before the Court. The"pernicious practices" which each respondent states have been engaged in by Utah Development Company and associated companies include "(a) failure ... to employ any Australian seamen whatsoever on ships engaged in the coal export trade from Australia ..." and "...(d) the failure of Utah Development Company to enter into meaningful negotiations with the Seamen's Union of Australia in relation to the use of Australian seamen on such ships". In these circumstances it is not inherently improbable that each respondent, in addition to having the purpose (as stated in the affidavit) of registering a protest against what were described as pernicious practices, had the further purpose of causing substantial loss or damage to the business of the Utah applicants as a means of convincing the Utah Development Company that it should "enter into meaningful negotiations with the Seamen's Union of Australia in relation to the use of Australian seamen on such ships." 14, If such a further purpose existed and were achieved it would ensure an abandonment of what each employee respondent regarded as a pernicious practice - see, for example, paragraph 6(a) of the affidavit of the respondent Hill from which I have quoted earlier. Such a further purpose is not inherently improbable and has not been denied expressly or by necessary implication in the affidavits filed by the respondents. The respondents' affidavits make it clear that the conduct of declining to Work, which the respondents describe as a protest, occurred on a substantial number of occasions during a period of some months. In my view the evidence before the Court at this stage establishes a prima facie case on this aspect in respect of all of the respondents other than the Union and the respondent Elliott. Of course, at the hearing of the matters in February 1978, the Court will have to consider all the evidence including whether the respondents at the material times were engaging in conduct for the purpose of causing substantial loss or damage to the business of the Utah applicants. The respondent Elliott, who is and has been the Federal Secretary of the Union for more than thirty-five years, LA in an affidavit denied "that any of my action or participation in the discussions and events which have occurred since on or about the eleventh day of May, 1977, were engaged in for the purpose of causing substantial loss or damage to the business of any corporation". 15. He set out the five practices of the Utah Development Corporation and associated companies in terms identical to those used by the other respondents, including the respondent Hill whose description of the practices I have set out earlier. The affidavit of the respondent Elliott stated, "My whole purpose in my dealings with the applicants has been to endeavour to convince the applicants that the practices and conduct engaged in by Utah Development Company and by the companies which are assdciated with it are unreasonable and improper and that such practices should be immediately abandoned in the interests of harmonious industrial relations", During cross-examination by Mr. Pinkus Q.C., who appeared with Mr. R.R. Douglas for the Utah applicants, the respondent Elliott gave the following evidence:- "I put it to you that the union's campaign about the manning of ships has now been going on really since early this year? --- Yes, And you expect it will continue until a resolution of the dispute is arrived at, do you? -+- I am confident it will continue until such time as we man the export ships. And it will be pursued with unabated vigour, at least on your side? --- Yes," "You are fully behind the men in this manning dispute? --- No, I am not. I am right up with them. You are in the forefront of the fight and so is the union, isn't it? --- yes." 16. a In my view the respondent Elliott's affidavit and oral evidence do not contradict the prima facie case shown by the evidence at present before the Court. That view, of course, only relates to the prima facie position at this stage and does not represent a concluded view on the facts which will be determined by the trial judge at the hearing of the application for injunctions. If, contrary to the views which I have expressed, the statements of the respondents constitute a denial that each . respondent other than the Union engaged in the conduct alleged for purposes that included the purpose of causing substantial loss or damage to the business of the Utah applicants, then in my view, on the material before the Court at this stage, the Utah applicants have, notwithstanding such denials, established a prima facie case that the conduct by each respondent (including the Union by reason of the provisions of s. 45D(5) of the Act) was engaged in for purposes that included the purpose of causing substantial loss or damage to the business of the Utah applicants. In my view a prima facie case has also been shown on all the other matters necessary to be established by the Utah applicants including that each respondent engaged in the conduct in concert with another person. Another aspect which the respondents have put in issue in these proceedings in a document filed setting out a List of Issues, is as follows:- 1/. a "(a) Whether The Central Queensland Coal Associates Agreement Act 1968 and the agreement made pursuant thereto are valid laws of the State of Queensland in that they constitute the grant by the State of Queensland of an aid to or bounty on the production or export of goods to which neither the Senate nor the House of Representatives has consented, as required by section 91 of the Commonwealth of Australia Constitution. (b) Whether the enactment of such Act and/or the entry of the parties thereto into the Agreement referred to in such Act and/or the implementation thereof by the State of Queesnland constitutes in the circumstances the grant of an aid to or bounty on the production or export of goods in relation to which neither the Senate nor the House of Representatives . has consented, as required by s. 91 of the Constitution. (c) Whether in the light of (a) and (b) above the applicants in Matter G.5 of 1977 are acting unlawfully." In opposing the application for interim injunctions Mr. Jackson Q.C. dealt with this aspect only briefly. He submittec that the Court should not in its discretion grant interim injunctions which would have the effect of requiring the respondents to engage in conduct which would assist the Utah applicants in carrying on unlawful activities. As the matter has not been fully argued it is undesirable that I should express any opinion as to the respondents' contention. I do not consider that the existence of such a possible argument is a reason which should cause me to exercise my discretion against the Utah applicants by refusing to grant any interim injunction. Assessing the matter as best I can on the evidence as it is at the present time, I consider that it is more probable than not that the Utah applicants will succeed in obtaining injunctions at the ultimate hearing. However I do not consider that it is necessary for the Utah applicants, 18. i in order to make out their case for interim injunctions, to satisfy me that ultimate success by them is more probable than not. As the High Court said in Beecham's Case (supra) at p. 622:- "How strong the probability needs to be depends, no doubt, upon the nature of the rights he asserts and the practical consequences likely to flow from the order he seeks, Thus, if merely pecuniary interests are involved, 'some'probability of success is enough ... Thus where the defendant goes into evidence on the interlocutory application the Court does not undertake a preliminary trial, and give or withhold inter- locutory relief upon a forecast as to the ultimate result "of the case." In my view, on an application to grant an interim injunction restraining a person from conduct alleged to be contrary to s. 45D of the Act, the Court, in considering whether "it is desirable to do so" under s. 80(2) of the Act, should consider whether the applicant has shown a sufficient likelihood of ultimate success to justify the granting of the interim injunction in the circumstances. (See Kitto J. during the argument in Beecham's Case (supra) reported at p. 620.) During the hearing the respondents put in issue the question of "whether, to the extent to which section 45D of the Trade Practices Act 1974 applies to the conduct of the respondents complained of, or alternatively to the conduct of the respondents found to exist, the said section is within the legislative power of the Commonwealth". Mr. Jackson Q.C., on behalf of the respondents, informed the Court that the Attcrney- General of the Commonwealth and the Attorney-General of each of the States have been notified (see s. 78B(1) of the Judiciary 19. Act 1903). Section 78B(5) of the Judiciary Act 1903 provides that: "Nothing in sub-section (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so." After referring to that sub-section, Mr. Jackson conceded that s. 78B(1) does not operate to deprive the Court of jurisdiction to grant the interim injunctions sought in these proceedings. In all the circumstances of the case I formed the view that it was necessary in the interests of justice for the Court to proceed without delay to hear and determine the application for interim injunctions. As to the question of the balance ot convenience, the only inconvenience or injury which Mr. Jackson Q.C. suggested would be suffered by the respondents if interim injunctions were granted was that they would be "... forced at the instance of someone not their employer to work in a particular way at particular times on occasions when they do not wish to do so. They do not wish to do so because they protest at the action of the person forcing them to do it." He also criticised the scanty evidence as to the number of ships which might be affected before the hearing of the matter in February 1978. However, on all the evidence I am satisfied that the inconvenience or injury . which the applicants would be likely to suffer if interim injunctions were refused outweighs any inconvenience 20. i or injury which the respondents are likely to suffer if an injunction be granted. Accordingly the balance of convenience is in favour of granting interim injunctions on the undertaking, given by Mr. Pinkus Q.C. on behalf of the Utah applicants, to pay to any party adversely affected by the interim injunctions such compensation (if any) as the Court thinks just in such Manner as the Court directs. The form of the interim injunctions will be that proposed by the Utah applicants in the Minutes annexed to their application for grant of interim injunctions, dated 14 December 1977 and filed in the Court, save for the substitution in both orders of the words "pending the determination of the proceeding " for the words "until further order". or until further order Costs of the proceedings will be costs in the cause and liberty will be reserved to any party to apply on two days notice. T certify that this and the |G preceding pages are a true copy of the Reasons for Judgment herein | Mr. Justice Keely of his Honour Associate Dated: 23/12/19 7