I CATCHWORDS 2 G6 kL on vAe er D JUDGMENT No senhennal wodooh L frade Practices - Secondary boycott - whether black ban on goods for purpose of causing substantial loss or damage to business of corporation or for purpose of preventing or substantially hindering person from engaging in trade or commerce between Australia and places outside Australia - whether dominant purpose of black ban substantially related to conditions of employment of employees - interlocutory injunction - balance of convenience. IN THE MATTER of the Trade Practices Act 1974 as amended (ss. 45 D (1), (1A), (2) and (3) and 80). INDUSTRIAL ENTERPRISES LIMITED & ORS. v. THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA & ORS. Q No. 8 of 1978 Coram: Lockhart J. Sydney 5 January, 1979 IN THE MATTER OF THE TRADE PRACTICES ACT 1974 IN THE FEDERAL COURT OF "AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q. NO. 8 OF 1978 GENERAL DIVISION BETWEEN: INDUSTRIAL ENTERPRISES PTY. LTD. , TCCWOOMPA FOUNDRY Py, LTD, , SOUTRER.! ChoSsS son TTT BRISEANs) -TY. LTD. anc SOUGHERN CROSS DEVELOFMs7.T FrY. LTD. Applicants AND: THE FEDERATED STOPEMEN AND PACKERS LINTON OF AUSTRALIA . = BONDING and TH Le UNION OF HinFLOYs=S o> BRANCH ORDER JUDGE MAKING ORDER: LOCKHART J. DATE OF ORDER: 5 JANUARY, 1979 WHERE MADE: SYDNEY THE COURT ORDERS AND DECLARES THAT: 1. THAT the respondents, The Federated Storemen and Packers Union of Employees of Australia (Queensland Branch) p James Edward Graham Bonding and Ernest Edward Adsett be — restrained until +_e determination of the proceedings or further orcer from engcoging in the following conduct, ran-it:- (a) (c) (4) (e) conduct that hinders or prevents the supply of services by R. Jackson Pty. Ltd. (Jacksons), Browns Transport Consolidated Pty. Ltd. (Browns Transport), Underwood Storage Company (1971) Pty. Ltd. (Underwood Storage), Finney Brothers Transport Pty. Ltd., (Finney Brothers), McMzllans Customs Services Pty. Limited (McMillans), McMillan Nominees Pty. Ltd. (Nominees), to the applicants or any of them in contravention of section 45D of the Trade Practices Act, 1974; conduct that hinders or prevents the consignment of goods to or by the applicants or any of them in contravention of the said section; conduct that hinders or prevents the coliecticn or transport of goods consigned to or by the applicants or any of them in contravention of the said section; conduct that prevents or substantially hinders the applicants or any of them from engaging in trade or commerce between Australia and places outside Australia in contravertion of the said section; aiding, abetting, counselling, procuring, -3- inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour from Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans and Nominees or any of them when and to the extent that such labour is, according to the ordinary course of practice, required for the purpose of collecting, loading or unloading goods consigned to or by the applicants or any of them, 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 business of the applicants or any of them except where such conduct is within the description in paragrapn 45D (3) (a) or (b) of the said Act. 2. THAT the costs of all parties be reserved - 3. THAT liberty be reserved to any party to apply on two days' notice. IN THE MATTER OF THE TRADE PRICTICES ACT 1974 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q.NO. 8 OF 1978 GENERAL DIVISION BETWEEN: INDUSTRIAL ENTERPRISES PTY. LTD., TOOWOOMBA FOUNDRY PTY. LTD., SOUTHERN CROSS MACTINERY (BRISBANE) PTY. LTD. and SOUTHERN CROSS DEVELOPMENT PTY. LTD. Applicants AND: THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, E. ZAPHIR, J. FORRESTER, ADSETT, BONDING and THE FEDERATED STORENEN AND PACAE7S UNION OF EMPLOYEES OF AUSTRALIA (QUEENSLAND BRANCH) Respondents REASONS FOR JUDGMENT This 1s an application for interlocutory injunctior under s.80 of the Trade Practices Act, 1974 ("the Act") to restrain conduct of the respondents alleged to contravene s.45D of the Act. The applicants are members of a group of fifteen corporations of which the applicant Industrial Enterprises Pty. Ltd. ("Industrial Enterprises") is the holding company. I shall refer to members of the group together as "the Southern Cross Group". The applicant, Toowoomba Foundry Pty. Ltd. ("Toovwoorba Foundry") manufactures irrigation and water supply equipment including submersible pumps. It oeef2 manufactures goods under the registered trade mark "Southern Cross". Toowoomba Foundry alse imports and exports goods. It imports "Century" submersible motors ang "Aermotors" submersible pumps from the U.S.A. It assembles both the Century motors and the Aermotors pumps to produce its own submersible pumps. Southern Cross Machinery (Brisbane) Pty. Ltd. ("Machinery") sells Southern Cross products throughout Australia and overseas. It also acts as an importer of water and irrigation supply equipment. Southern Cross Development Pty. Ltd. ("Development") imports goods for the subsidiaries of Industrial Enterprises and then sells them to "he subsidiaries who market then throughout Australia. Development imports small irrigation fittings and sprinklers and Angus irrigation hoses from the United Kingdom. The port of Brisbane 1s the main Australian port whaebh—-bes—ieen used by the Southern Cross group for the import and export of goods; but some goods are loaded or unloaded in the port of Sydney. The Southern Cross group prefers to use the port of Brisbane because it 1s in Toowoomba that the manufacturing activities are centred and it 1s saved the cost of additional freight overland from Sydney to Brisbane if goods are loaded or unloaded in Sydney. Sydney is used if shipping is not available to or from Brisbane. 2.2/3 ~ The respondent, The Federated Storemen and Packers Union of Employees of Australia (Queensland Branch) (to which I shall refer as "the Queensland union") | is registered under the Industrial Conciliation and Arbitration Act, 1961-1977 (Queensland). It has placed a "black ban" on the movement of all goods imported or exported by the applicants or any other corporation being a subsidiary of Industrial Enterprises. The ban applies throughout so much of the port of Brisbane where the Queensland union enjoys control, namely the Brisbane wharves and wool dumping complex (to which I shall refer as "the wharves"). It is a large complex used by container ships and conventional ships. There are other outlets in the port of Brisbane where control of the Queensland union does not Conte exist and no ban is enforced by it. {Goods have been imported through the port of Brisbane by Toowoomba Foundry and by Machinery, cleared by customs, and all freight charges, customs duties and landing charges haye—been paid. Attempts have been made by the collection agents of the avplicants to take possession 2f the goods but, due to the "black ban", are being held in a shed on the wharves and will not be released as they will not be handled by the members of the Queensland union. The goods include "Century" submersible motors and "Aermotors" submersible pumps, imported by Toowoomba Foundry from the U.S.A. the import price including duty which has been paid being $82,000.00. Sixty percent of the pump units to be assembled from the components currently on the wharves and subject to the 'slack bar" are cavered by purchase orcdcrs for retail sales in Western Australia. Machinery has .aportrecd screw motors which are also held on the wharves and subject to 2/4 the ban with an import value of $12,000.00 approximately. They have been cleared by 'customs. Machinery has entered into a contract with the Queensland Department of Works to supply and fit screw pumps into a sewerage pumping station at the Wacol Prison, Brisbane. [ the Southern Cross group imports substantial quantities of goods which run into millions of dollars per annum. For instance, Development imports irrigation equipment and irrigation hoses which in the last twelve months have cost it some two million dollars. The ban applies also to the exports of the Southern Cross group Toowoomba Foundry exports /to New Zealand, Asia and North East Africa and the export value of export sales is about $1,250,000.00 per annum although there is no evidence that any goods for export are at present on the wharves and prevented from being shipped abroad. The "black ban" has been imposed by the Queensland union to assist another union, namely the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia which is a union registered under the Conciliation and Arbitration Acty 1904 (as amended) (Commonwealth) as an organisation of employees. I shall refer to that Association as "A.A.E.S.D.A." For some years past members of the Southern Cross group have required that persons seeking employment with them, and who are covered by relevant industrial awards, as a condition of their employment join the relevant industrial union. This practzce followed a number of disputes betseen members of the Southern Cross group and trade unions. This 2.6/5 was one of the bases on which the disputes were settled together with undertakings by the relevant members of the Southern Cross group that, as to employees in their employ at the time the dispute was settled, they would recommend to them that they join the relevant industrial union. Recently the Southern Cross group departed from this practice following the inclusion on 4 August, 1978 in the Metal Industry Award, 1971 (Commonwealth) of Part V being "Metal Industry - Part V, Foreman and Supervisor's Award 1978" - in relation to foremen and supervisors. About 35 employees of the Southern Cross group are members of A.A.E.S.D.A. and covered by Part II of the award. MTwenty- three persons covered by Part V of the award are employed by the Southern Cross group and are eligible but have not applied for membership of A.A.E.S.D.A. The Southern Cross group declines to recommend to those persons that they join A.A.E.S.D A.A.E.S.D.A. became concerned at the possible erosion of its membership and sought assistance from the Queensland Trades and Labour Council. In the result, the Queensland union agreed to assist A.A.E.S.D.A. in achieving its objective for all employees eligible for membership of A.A.E.S.D.A. to become members, and imposed the "black ban" thereby expecting that the Southern Cross group would recommend to those employee that they join A.A.E.S.D.A. This expectation has not been realised. It 1S in these circumstances that the applicants sought an order to show cause. On 13 December, 1978 Franki }. made an order to show cause returnable in Brisbane for the following week. The matter came on for hearing before me on Tuesday 19 December g 1978. .../6 ? The applicants initially proceeded against 5 respondents. The first réspondent "The Federated Storemen and Packers' Union of Australia" was sued in the mistaken belief that it was the union which had imposed the "black ban". The names of the first respondent and of the Queensland union are similar and there are some features common to both bodies ancluding the fact that Mr. F.W. Nicol is the President of the first respondent and the Secretary/Treasurer of the Queensland union. During the first day of the hearing I granted leave to the applicants to add the Queensland union as an additional respondent. The respondents E. Zaphir and J. Forrester were not personally served. No relief 1s now claimed against them or the first respondent. I shall use the expression "the respondents" to mean the Queensland union, the respondent Adsett and the respondent Bonding. The respondent Adsett is the President of the Queensland union and a shop steward appointed under Rule 22 of the Queensland union's Rules. He 1s also Chairman of the "Job Committee". I shall refer tc this Committee later in more detail; but it is sufficient to say, at the moment, that it is a committee comprising representatives of the three unions most directly concerned with activities on the wharves when bans are imposed, and its purpose is to ensure that goods which are banned are those consigned to or from the company the subject of the oan rather than other corporations. oe ef/7 The respondent Bonding 1s the Branch Secretary of the Queensland Branch of A.A.E.S.D.A. The applicants claim that the respondents Adsett and Bonding played an active and material role in bringing about and continuing the"black ban". The applicants seek interlocutory injunctions against the respondents to restrain them from engaging in the following conduct:- "7 (a) (b) (c) (a) Conduct that hinders or prevents the supply of services by R. Jackson Pty. Ltd. (Jacksons), Browns Transport Consolidated Pty. Ltd. (Browns Transport), Underwood Storage Company (1971) Pty. Ltd. (Underwood Storage), Finney Brothers Transport Pty. Ltd. (Finney Brothers), McMillans Customs Services Pty. Limited (McMillans), McMillan Nominees Pty. Ltd. (Nominees) to the Applicants or any of them in contravention of Section 45D of "The Trade Practices Act, 1974"; Conduct that hinders or prevents the consignment of goods to or by the Applicants in contravention of the said Section; Conduct that hinders or prevents the collection and/or transport of goods consigned to or by the Applicants in contravention of the said Section; Inducing or attempting to induce any employee of Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans or Nominees to refuse to provide his services in contravention of the said Section to either of such companies in respect of the consignment of goods to or by the applicants. -.-/8 2. 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 Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans and Nominees or any of them when and to the extent that such labour is according to the ordinary course of practice required for the purpose of collecting, loading and/or unloading goods consigned to or by the Applicants or any of them 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 business of the Applicants or any of them except where such conduct is within the description in paragraph (a) or paragraph (b) of Section 45D(3) of the said Act." As to the companies mentioned in "l(a)"?- R. Jackson Pty. Ltd. ("Jacksons") is the customs and clearing agent for Toowoomba Foundry; Browns Transport Consolidated Pty. Ltd. ("Browns Transport") transports goods to various nominated destinations for Toowoomba Foundry; Underwood Storage Company (1971) Pty. Ltd. ("Underwood Storage") is the customs and clearing agent for Development; Finney Brothers Transport Pty. Ltd. ("Finney Brothers") transports goods from the wharves to the premises of Development or other nominated places; McMillan Customs Services Pty. Ltd. ("McMillans") is the customs and clearing agent for Machinery; and McMillan Nominees Pty. Ltd. ("Nominees") transports goods from the wharves to various destinations on behalf of Machinery. 22/9 The granting of interlocutory injunctive relief depends essentially on whether a prima facie case has been established in accordance with the principles expressed by the High Court in Beecham Group Limited v. Bristol Laboratories Pty. Ltd. (1968) 118 C.L.R. 618 and by the Full Benci 3f this Court in World Series Cricket Pty. Ltd. v. Parish (1977) 16 A.L.R. 181; and whether the balance of convenience favours such course of action. As to whether a prima facie case has been established, the issues to which the evidence and the argument have been directed arise mainly from the terms of s.45D(1), (1A), (2) and (3) which provide as follows:- "45D(1) Subject to this section, a person shall not, 1n concert with another person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation (not being an employer of the first-mentioned verson), or the acquisition of goods or services by a third person from a corporation (not being an employer of the first-mentioned person), where the conduct 1s engaged in for tne purpose, and would have or be likely to have the effect, of causing - (a) substantial loss or damage to the business of the corporation or of a body corporate that 1s related to the corporation; or (b) a substantial lessening of competition in any market in which the corporation or a body corporate that 1s related to the corporation supplies or acquires goods or services. 22/10 (2) (3) (1A) -10- Subject to thissection, a person shall not, in concert with another person, engage in conduct for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (not being an employer of the first-mentioned person) from engaging in trade or commerce - (a) between Australia and places outside Australia; (b) among the States; or (c) within a Territory, between a State and a Territory or between two Territories. Paragraph 4F(b) does not apply in relation to sub-section (1) or (1A) of this section but a person shall be deemed to engage in conduct for a purpose mentioned in that sub-section if he engages in that conduct for purposes that include that purvose. A person shall not be taken to contravene, or to be involved in a contravention of, sub-section (1) or (1A) by engaging in conduct where - (a) the dominant purpose for which the conduct 1s engaged in 1s substantially related to - {i) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an erzlcy of that person; or (ii) an employer of that person having terminated, or taken action to terminate, the employment of that person or of another person employed by that employer; or (b) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person), that 1s to say - we efll ISSUES -ll- (i) (ii) an organization or organizations of employees, or an officer or officer: of such an organization, or both such an organization or organizatio: and such an officer or officers; an an employee, or two or more employes who are employed by the one employe. the dominant purpose for which the conduc' is engaged in is substantially related to (iii) the remuneration, conditions of (1Vv) employment, hours of work or workinc conditions of the employee, or of any of the employees, referred to ur: sub-paragraph (i1); or the employer of the employee, or of the employees, referred to in sub- paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employees. The issues are as follows:- As to s.45D(1) and (2) (a) (b) Whether persons, in concert with each other, have engaged and are continuing to engage in conduct that hinders or prevents (1) the supply of goods or services by a third person to a corporation or (ii) the acquisition of goods or services by a third person from a corporation; Whether that conduct is engaged in for the purpose purpose oer for purposes that included the of causing substantial loss or damage to the business of the corporation; t+! 22/12 -12- (c) Whether that conduct would have or be likely to have thé effect of causing substantial loss or damage to the business of the corporation. As to s.45D(1A) and (2) (ad) Whether persons, in concert with each other, have engaged and are continuing to engage, in conduct for the purpose or for purposes that include the purpose of preventing or substantially hindering a third person from engaging 1n trade or commerce between Australia and places outside Australia or among the States; @A (e) Whether that conduct has or 1s likely to have the effect of preventing or substantially hindering a third person from engaging in such trade or commerce. As to s.45D(3) (b) in its application to both s.45D(1) and 45D(1A) (£f) Whether the relevant conduct is "engaged in by the following persons 1n concert with each other ... (and not in concert with any other person) that is to say - (i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such un «2/13 -13- officer or officers; and (ii) an employee, or two or more employees who a employed by one employer,"; and (g) Whether the dominant purpose for which such conduct is engaged in 1s substantially related to the conditions of employment of the employee, or of any of the employees, referred to in sub-paragraph (11) above. As this is an application for interlocutory injunctive relief it is not appropriate to make a final determination of facts in 1ssue. However, the area of dispute on questions of fact is not large and relates essentially to the question of the purpose or purposes for which the "black ban" was imposed. Also, there has been an extensive investigation of the facts over a period of four days including cross-examination of most of the deponents who have sworn affidavits. Before turning to the questions of law in the case I shall state the material facts. FACTS I have stated earlier the general nature of the business of the applicants. The Southern Cross group is large. Its principal manufacturing indusertes are at Toowoomba, but the sales of its products are made overseas and throughout Australia. There are no precise figures »--/14 -14- in evidence as to the trading receipts and expenditure of the Southern Cross groub or any of its members; but the evidence, in general terms, 1s that during the year ended 30 June ¢ 1978 sales by Toowoomba Foundry were in qdi,cee, acc the order of two mittion dollars and sales by Machinery an the order of millions of dollars. The paid up capital Jo, ves, OCC of Industrial Enterprises 1s about ten-metiren—delilars oie and that of Toowoomba Foundry about exvel mbt be dottars. Industrial Enterprises paid a dividend during the year ended 30 June g 1978 of about $750,000. Toowoomba Foundry commenced to import "Century" submersible motors and "Aermotors" submersible pumps from the U.S.A. in March 1978. The import purchase value since the commencement of importation 1s as follows:- May - $20,500 June - $40,200 July - $11,000 August - $ 4,700 September - $22,600 October - $74,700 November - $71,400 December - $70,000 Toowoomba Foundry has a large number of outstanding orders for "Aermotors" pump units. The assembled pump units are sold to companies within the Southern Cross group and sold throughout Australia and overseas. The principal purchaser of the pump units to be assembled from "Century" -.-/15 -15 - submersible motors and "Aermotors" submersible pumps currently held on the whatves and subject to the ban is Southern Cross Machinery (Mayland) Pty. Ltd., ("Maylands"), a company incorporated in Western Australia, being a wholly owned subsidiary of Industrial Enterprises and being the purchaser of some 60% of the pump units. The remaining assembled pump units will be sold to other members of the Southern Cross group. The peak period for the purchase of submersible pump units in Western Australia 1s December and January. The purchasing period is almost ended by the end of February. The components currently on the wharves when assembled would be sufficient to produce 345 pump units. Toowoomba Foundry currently has orders for 217 pump units, most of which are orders from Maylands. The balance of 128 pump units will be sufficient to supply the majority of orders for pump units which the group anticipates for the month of February 1979. After February 1979 the market sales fall off substantially. The total factory selling price of the 345 pump units is $126,000 and the retail selling price is $179,000. The pump units are used for watering and irrigation purposes by a variety of persons including householders in Western Australia, where there are severe water restrictions during the summer months, who rely on the pump units cto provide suppleventary water supoly -»-/16 - 16 =< to water their gardens. Toowoomba Foundry closed its plant on Friday 22 December and reopens the plant on 4 Januaryy 1979. This is the normal period of shut down over the Christmas holidays for Toowoomba Foundry. I am satisfied that unless the ban is lifted the orders for assembled pump units will be lost. Whilst the ban operates on the imported component parts currently on the wharves, Toowoomba Foundry is suffering prejudice in the market place and is losing sales. It usually takes about a week for goods to be Gelivered to the Toowoomba plant after their arrival or the wharves, about two weeks for the pump units to be assembled from the time the component parts are received in Toowoomba and about a further five to seven days to transport the assembled pump units from the Toowoomba plant to Western Australia. It is not clear from the evidence when the "Century" motors currently on the wharves arrived in Brisbane by ship or when they were placed in the relevant freight station on the wharves. Mr. Walter Hall is the General Manager and a Director of Toowoomba Foundry and a Director of other members of the Southern Cross group. He gave evidence on this question as did Mr. Adsett. Their evidence conflicts. It 1s not necessary to analyse this conflict and resolve it as I am satisfied that each witness oe e/l7 -17 - stated what he believed to be the truth; and it is immaterial whether the "Century" motors arrived in the port of Brisbane as early as 7 December or as late as 18 December, this being the area of conflict. The fact is that they are held presently in the shed on the wharves to which I have referred and cannot pass into the hands of Toowoomba Foundry whilst the ban continues. Mr. Spender of counsel for the respondent Bonding submitted that,on the assumption that the Century"motors did not arrive in the relevant part of the port of Brisbane until 16 or 18 December (i.e. Mr. Adsett's evidence), they would not have reached the Toowoomba plant until after it had shut down for the Christmas break and, as the plant would not reopen until 4 January 1979, the assembled punp units would not commence being assembled and would not reach Western Australia until late January 1979. If Mr. Adsett's evidence 1s correct then the submission is well-founded; but what is material is that 1f the ban is lifted now , Toowoomba Foundry will be able to receive the "Century"motors soon and use its best endeavours to fulfil the orders lodged with it before the end of February 1979, when orders substantially fall off. The longer the ban continues the bleaker become the prospects of Toowoomba Foundry being able to fulfil the orders for pump units lodged with it and, 1f the end of February arrives without the orders being met, it is clear that Toowoomba Founlry vill lose the orders, possiply be ..-/18 - 18 - subject to claims for damages and in any event damage its business reputation ag it will have failed to honour its contractual obligations. The crate of screw pumps imported from the United Kingdom by Machinery is also currently on the wharves and subject to the ban. The screw pumps are required to fulfil the contractual obligations of Machinery to the Queensland Department of Works. On 23 Marchg 1978 the Department of Works accepted a tender from Machinery in the sum of $77,263 for the installation of a "sewerage treatment works augmentation" at the Wacol Prison. The contract time commenced on 23 March, 1978, the term of the contract is six months armdwith a maintenance period of twelve months. The screw pumps currently on the wharves and subject to the ban are required for installation in the sewerage treatment works. The screw pumps are designed to lift raw sewerage into the commencement of the sewerage treatment system. More than one extension of time for completion of the contract has been granted to Machinery due to delay in the despatch of screw pumps from the United Kingdom. Temporary pumps have been installed by Machinery until the proper screw pumps have been installed; but the temporary pumps do not function as well as the screw pumps and there is some electrical difficulty with them. 2../19 - 19 - On 7 November 1978 Machinery requested a further extension of time for completion until 20 November 1978; but no reply has been received to the request. Until the imposition of the "black ban" the delay under the contract with the Department of Works was due to delays in despatch of the screw pumps from the United Kingdom and had nothing to do with the Queensland union. However, the screw pumps have arrived and are on the wharves. Due to the imposition of the ban Machinery is exposed to the possibility of the Department enforcing the liquidated damages clause in the contract which nominates liquidated damages of $400 for every week or part thereof of delay. Machinery is able to install the pumps as soon as they are released from the wharves. I turn now to the events which led to the imposition of the ban by the Queensland union. In 1974 there was a dispute between the Queensland union and Toowoomba Foundry. The dispute was settled, and a term of the settlement was that Toowoomba Foundry would recommend to all its employees within the ambit of the industrial award to which the Queensland union was a party that they join that union; and that Toowoomba Foundry would require all future employees within the ambit of that award, as a condition of their being employed, to join the Queensland union. 2+. /20 - 20 - "Black bans" were imposed by the Queensland union and, soon after their impesition, Toowoomba Foundry entered into discussions with the Queensland union, and in due course the settlement emerged. A later dispute arose between Toowoomba Foundry and the Federated Iron Workers' Union. Storemen and packers being members of the Queensland union who were G catia employed by Toowoomba Foundry, said to the |union that they were not said vo work alongside othér people who were not members of the Federated Iron Workers' Union. Bans were imposed by the Queensland union, but were removed once all persons who had not joined the Federated Iron Workers' Union, but were eligible to do so, had in fact joined. The bans were imposed for less than 24 hours. There was a subsequent dispute between Toowoomba Foundry and the Federated Clerks Union of Employees (Central and Southern Division Queensland). The dispute was settled again after the imposition of bans, the basis of the settlement being substantially as it was in 1974 in the dispute with the Queensland union. A later dispute arose between technical and drafting employees of Toowoomba Foundry and A.A.E.S.D.A. Again the dispute was solved in much the same way as the first dispute with the Queensland union had been solved. .../21 fx - 21 =- Since the resolution of these disnutes the Southern Cross group has recommended to all employees whose calling is covered by an industrial award and who were employed at the time of the resolution of the particular dispute, that they join the relevant union. The Southern Cross group has also required, as a condition of employment of future employees within the ambit of an industrial award, that they join the relevant union. Toowoomba Foundry employs a number of draughtsmen, foremen and supervisors. The working conditions and industrial affairs of draughtsmen and certain technical officers are regulated by Part II of the award. Toowoomba Foundry employs some 35 draughtsmen and technical officers who are covered by Part II of the award and all of whom are members of A.A.E.S.D.A. Toowoomba Foundry employs 23 Foremen and supervisors who are covered by Part V of the award, after its introduction on 4 August, 1978. The Southern Cross group has not recommended to these employees (foreren and Supervisors) that they join A.A.E.S.D.A. Mr. Hall said in evidence that 1n his view a recommendation by Toowoomba Foundry to join a union would be treated by the employee as 7 2 : an instruction. He said that inthe history -of-Toowoomba Ther ee we Fen Fourrdeys, foremen and supervisors had never been required /to A Gr join a union and/there never was any question before August 1978 of their being covered by an award. He said that he regarded such employees as part of management and that in those circumstances, altnoug1 the Southern Cross group had 22/22 ~ 22 - honoured the settlement in relation to other employees, it did not regard itself as being bound to apply the terms of the earlier settlement in relation to people such as foremen and supervisors. Representations were made to Mr. Bonding as Branch Secretary of the Queensland Branch of A.A.E.S.D.A. hy members of A.A.E.S.D.A. concerning the possible erosion of union membership and conditions of employment at the plant of Toowoomba Foundry. As a consequence of those representations there were discussions between Mr. Hall, as General Manager of Toowoomba Foundry, Mr. Victor Nauman yg the Industrial Personnel Officer of Toowoomba Foundry, and Mr. J. Forresterg the State Organizer of the Queensland Branch of A.A.E.S.D.A. At one pareictlar discussion on 30 May, 1978 between those gentlemen, Mr. Hall told Mr. Forrester that, so far as Toowoomba Foundry was concerned, it remained neutral on the question of foremen and supervisors becoming members of A.A.E.S.D.A. Mr. Forrester said that if the matter was not resolved he would have to notify the Queensland Trades and Labour Council that a dispute existed. Mr. Forrester asked Mr. Hall if he (Forrester) could speak to the men. Mr. Hall told him that the company had no objection to Mr. Forrester's addressing the men to discuss union membership. Mr. Forrester did address the men and, at the meeting with the men, application forms for membership of the union were distributed and a number -+-/23 - 23 - of foremen and supervisors took them. No such forms have been returned from any of "those eligible to be members of the union under Part V of the award. On 4 Julyg 1978 Mr. Forrester spoke to Mr. Hall by telephone. Mr. Forrester said that he was ringing about the men who had not joined the union. Mr. Hall repeated to Mr. Forrester that Toowoomba Foundry "would not lean on people to join nor would the company discourage them from joining the union". Mr. Hall said that it was Mr. Forrester's job to enrol the members not that of Toowoomba Foundry. Mr. Forrester said that he looked forward to receiving Mr. Hall's co-operation in achieving a closed shop in the office with clerical staff. Mr. Forrester said that he did not want to have to ask for assistance from other unions to achieve his membership. Mr. Hall asked Mr. Forrester whether he was threatening him. Mr. Forrester said he was not threatening "that if you threatened people in Toowoomba you ended up in court". Mr. Forrester concluded the conversation by saying that people had told him that if Toowoomba Foundry asked employees to join the union they would do so. On 29 Augustg 1978 Mr. Bonding wrote a letter to Mr. Nauman in which he said, amongst other things:- "It 1s the intention of the Association to send this matter of the breakdown in full membership at your Company to the Trades and Labor Council of Queensland to elicit their support 1 correcting that situation. However 222/24 A Ki Ch - 24 ~ before calling on any positive support we think it would be appropriate to again visit your Company, as the new Metal Industry Foremen and Supervisors Award is now a fact." On 15 September 1978 Mr. Bonding wrote a letter to the President of the Queensland Trades and Labour Council in which he said, amongst other things:- "On the 13th September 1978 John Forrester visited Toowoomba as pre-arranged to speak to the twenty- three (23) non-members employed by Toowoomba Foundry. This included the twenty (20) foremen and supervisors who now come within the scope of Part V of the Metal Trades Award. The meeting was totally unsuccessful and only six (6) of the foremen attended; none of whom showed any inclination to join the Association. Two (2) of the other three (3) persons attended a separate discussion but neither joined. John Forrester explained the situation again to Vic Nauman, the Company's Personnel Officer, and advised that unless this matter was settled by Friday 15 September 1978 the matter would be referred to the Queensland Trades and Labor Council. No such settlement has taken place. We would appreciate your assistance in this matter. We feel it 1s one of importance not only to this Association but to the whole question of closed shop unionism, currently so much in the news. Without in any way wishing to anticipate what action the Council may wish to take I now would suggest that the assistance of the Combined Waterfront Unions in this matter could be of value. ..." After a copy of this letter had been admitted without objection into evidence an attempt was made by oad ae k counsel for Mr. Bonding to establish that the cepy had TT a pe been photesseeted without the authority of A.A.E.S.D.A. from a copy held by A.A.LD.S.D.A. 1n its premises in Ann ee f25 - 25 - Street Brisbane. The attempt failed, as the evidence adduced fell far short of what would be required to reach a positive finding that the copy letter admitted into evidence was in some way obtained or copied without Ei authority of A.A.E.S.D.A. On 19 October, 1978 Mr. Hall received a telephone call from Mr. Zaphir, an organizer of the Queensland union. Mr. Zaphir said that the dispute over membership with A.A.E.S.D.A. had been referred to the Trades and Labour Council, that the Queensland union had to consider what 1t should do in relation to the dispute, that he hoped Toowoomba Foundry and Mr. Zaphir could sort the matter out before it "blew up". Mr. Hall told Mr Zaphir that Toowoomba Foundry could do no more than it had ,but that he (Mr. Hall) would think about what Mr. Zaphir said. On 24 October, 1978 Mr. Zaphir raac Mr. Hall. Mr. Zaphir asked what decision Toowoomba Foundry had come to. Mr. Hall said that Toowoomba Foundry thought it inappropriate to be talking to Mr. Zaphir. Mr. Hall said that 1f there was any dispute it was between Toowoomba Foundry and A.A.E.S.D.A., not the Queensland union. Mr. Zaphir said that he was on the Disputes Committee of the Trades and Labour Council and the matter had been referred to that Committee. de said that he was hoping to resolve the matter. Mr. Hall repeated that he would not talk to him. [soon after the telephone call and on the same day, Mr. Hall received a telenhone call from Mr. Bonding who told him that Mr. Zaphir had confirmed the terms of the + -/26 - 26 - earlier conversation that day between Mr. Zaphir and Mr. Hall. Mr. Bonding asked what could be done to resolve the matter. Mr. Hall told him that he and Toowoomba Foundry could do nothing further. Mr. Hall said that every opportunity had been given to speak to employees of Toowoomba Foundry and the company would neither restrain nor coerce its employees to join the union. Mr. Bonding said that he was not asking Mr. Hall to coerce anyone but rather to suggest to employees that it would be in their interest to join the union. Mr. Hall ended the conversation by saying "we can do nothing more". On some date, undefined in the evidence but probably in October 1978, there was a meeting of the Trades and Labour Council in Brisbane called to discuss the dispute over the question of union membership at the Toowoomba Foundry. Mr. Bonding attended the meeting; but Mr. Adsett and Mr. Nicol, the Secretary/Treasurer of the Queensland union, did not attend. If there are any minutes of the meeting they are not in evidence. The only direct evidence of what transpired is the evidence given by Mr. Bonding. Mr. Nicol gave evidence as to certain of the matters which he understood were decided at the meeting but his evidence was based on what he had been told by others. I prefer to accept the evidence of Mr. Bonding because he was present at the meeting and Mr. Nicol was not. Mr. Bonding said that assistance was sought by his union from the Trades and Labour Council, and that in his view that assistanc? could have been provided in a number of ways, one way being that members of a relevant union could have objected to working 22/27 - 27 - with non-members; another way was the imposition of bans. He said that when he asked for assistance he did not necessarily have in mind that a ban might result; but it was one of the probabilities that in his mind could eventuate. Five to ten people were present at the meeting representing A.A.E.S.D.A., the Waterside Workers' Federation of Australia, the Seamen's Union of Australia, the Amalgamated Metal Workers and Shipwrights' Union of Australia, the Federated Clerks' Union, and the Queensland union. Mr. Bonding said in evidence that the assistance he wanted and needed was the assistance that could have sore effect on the business of Toowoomba Foundry. Mr. Bonding said that he did not remember who suggested the imposition of the "black ban", but that the only matter he recalls having been mentioned as the assistance that might be provided was the imposition of a "black ban", He said that those present thought 1t was a possible solution to the problem to impose a "black ban". He said that the resolution of all persons present at the meeting was that a "black ban" be imposed by the Queensland union, that the resolution did not call on any other union to impose a "black ban" on the movement of goods of Toowoomba Foundry; but the resolution "basically meant that there would be bans imposed on the movement of products down on the waterfront" by the Queensland union only. «2 ./28 - 28 - On 1 December, 1978 Mr. Forrester wrote a letter to Mr. H.A. Griffith, Managing Director of Toowoomba Foundry and the Managing Director of Industrial Enterprises, reviewing part of the histor; of the dispute and asking for the personal intervention of Mr. Griffith in the matter. The letter says:- "We are happy as stated previously, to work with your company over a period of several months to establish 100% membership amongst eligible persons on a progressive basis dealing with the more difficult cases last, and in isolation." The letter says:- "Without in any way wishing to make admissions because of the present legal situation I must inform you that a situation 1s developing rapidly where there could be serious conflict not only with A.A.E.S.D.A. but with the Queensland trade union movement." The "black ban" was imposed on 7 December, 1978 and is continuing to operate. wathout/ intervention of the Court it 1s clear that the ban will continue unless and until the group agrees to lend its aid to the principle of 100% membership of unions in respect of all employees covered by awards and employed by the Southern Cross group, at least so far as that principle applies to the 23 employees the subject of the present dispute. On 7 Decemberg 1978 a representative of Jacksons rang Toowoomba Foundry and said that a "black ban" had been Ww imposed by "the Storemen and Packers' Union" on/movement of goods for or on behalf of Toowoomba Toundry. 20/29 - 29 - At 9.00 a.m. on 12 December 1978 Mr. Hall telephoned Mr. Zaphir. He said to Mr. Zaphir that he was ringing to ask about the "black ban" imposed by the union on the handling of goods on behalf of the members of the Southern Cross group. Mr. Zaphir said that he should speak to Mr. Nicol who was now in charge of the matter. The call was transferred to Mr. Nicol. Mr. Hall explained to Mr. Nicol that he was ringing on behalf of the Southern Cross group about the "black ban". Mr. Nicol said he would not talk to Mr. Hall over the phone. Mr. Hall said he wanted to discuss the matter and asked him 1f it was; true that the "Federated Storemen and Pacxers' Union of Australia" had placed a "black ban" on the movement of all goods on behali of the Southern Cross group. Mr. Nicol said that a "black ban" had been imposed. Mr. Hall asked him why it had been imposed, as the companies were not in dispute with the "Federated Storemen and Packers' Union of Australia". Mr. Nicol said that he (Hall) knew what 1t was about. He asked Mr. Nicol how long the "black ban" would last to which the reply was that 1t was not up to "The Federated Storemen and Packers' Union of Australia." Mr. Hall asked Mr. Nicol who had imposed the ban and was told:- "It was imposed by five unions, Waterside Workers' Federation of Australia, Seamen's Union of Australia, Amalgamated Metal Workers' and Shipwrights' Union of Australia, some Clerks' Union (Mr. Hall did not catch the name clearly) and "The Storemen and Packers' Union". " .../30 - 30 - Mr. Hall asked Mr. Nicol when the "black ban" was imposed. Mr. Hall said that the first "we" heard of it was when our clearing agents rang us on Thursday and told us of the "black ban". Mr. Nicol said that he thought it was imposed before Thursday. Mr. Hall asked Mr. Nicol if his members had been instructed not to move any goods and was told "yes". Mr. Hall asked who the ban was imposed on and was told "it was imposed on Toowoomba Foundry Pty. Ltd.". Mr. Hall said that an Aes wh CH ts ba associated company - Machinery - also fred a bafr oad} as the company could not get some of its goods off the wharf. He asked Mr. Nicol whether the ban applied to exports as well as imports. He was told it was not on exports, "Mr. Nicol thought", as the matter was not serious enough at that stage to warrant a ban on exports. Mr. Nicol said he thought the ban was confined to Toowoomba Foundry and that his union was not in dispute with it and accordingly would not wish to take such a serious step in relation to exports. Mr. Hall asked him if he realised that the ban was costing Toowoomba Foundry and other companies in the Southern Cross group a lot of money. This was not answered, but Mr. Nicol asked how many people at Toowoomba Foundry were involved in the dispute. Mr. Hall said about 24 or 25. Mr. Nicol asked if Mr. Hall had spoken to them. Mr. Hall said "I had not and that it would be improper for me to talk to employees about matters which we regarded as personal to them". Mr. Hall asked Mr. Nicol 1f he was State Secretary and he said "yes". He askes Mr. Niec. wnether he had spoken to Mr. Forrester or Mr. Bonding about the matter and was told that he had not. ---/31 - 31 - He asked Mr. Nicol whether Mr. Zaphir had spoken to them. Mr. Hall said that he coutd hear Mr. Nicol asking Mr. Zaphir, and Mr. Nicol then said to him that Mr. Zaphir had spoken to them about the matter about four weeks ago. He asked Mr. Nicol "what's the score now?" Mr. Nicol said "it was not up to the Federated Storemen and Packers' Union of Australia". Mr. Nicol said "we should ring Forrester as he was the man to talk to". Mr. Hall said he would definitely have to talk to Mr. Forrester and Mr. Bonding ) and asked Mr. Nicol was it the position at this stage that the bans were on and were going to stay on, and Mr. Nicol said "yes they are". Later that morning Mr. Hall had a conversation with Mr. Adsett. Amongst other things discussed, Mr. Adsett said that so far as he was concerned he had been instructed "to put a ban on the movement of all goods on behalf of Toowoomba Foundry, Southern Cross and any other company that is a subsidiary to yours. As far as I am concerned what the ban applies to is everything, imports and exports and applies at any other port." Mr. Hall said "so far as you're concerned we can't get anything through". Mr. Adsett said "that's right mate". Mr. Hall said "well how long is it going to last". Mr. Adsett said "well that depends on how long it is going to take you to talk to my union about the membership up at Toowoomba Foundry. I'11l put it to you from My point of view, I am a delegate on the job, I pay $80 a year in union fees. I don't begrudge it. Unions improve 22 -/32 - 32 - conditions for members and why should people be bloody parasites on my back and other members." Mr. Hall said "well actually what I am ringing about is the ban. How long has it been on. We heard about it on Thursday (1.e. 7 December)." Mr. Adsett "I don't know, it was on when I came back from holidays and that was the middle of November". Mr. Hall saad "I see, well you're the delegate of the Federated Storemen and Packers' Union ofAustralia employed by the Brisbane Wharves and Wool Dumping Pty. Ltd." Mr. Adsett said "yes". Mr. Hall said "anyway as far as you're concerned it is a total ban on us, Foundry and associated Southern Cross companies and that applies to imports and also to exports". Mr. Adsett said "yes". Mr. Hall said "well it 1s costing us a lot of money don't you know". Mr. Adsett said "well why don't you go and talk to the union mate". Mr. Hali said "which union?" Mr. Adsett said "the Storemen and Packers' Union, that's the only one I'm interested in". Mr. Hall said "what about the Association of Architects Engineers Surveyors Draughtsmen of Australia, haven't you heard about that". Mr. Adsett said "no I haven't heard anything about that". The account of the conversation between Mr. Hall and Mr. Nicol which I have set out above is the account given in evidence by Mr. Hall. Mr. Nicol said that to the best of his recollection that account was correct; but that he said, to the best of his recollection, in addition "that the bans were imposed at the ra,sast of tne Trades and Labour Courcri, through Trades and Labour Council, and +tFat 1s the only way that we came into the situation where bans had been imposed." 2+ -/33 '{ _, - 33 - Mr. Adsett did not deny the accuracy of the conversation with him as related by Mr. Hall. Also on the morning of 12 December, 1978 Mr. Hall had a conversation over the telephone with Mr. Bonding. He said to Mr. Bonding amongst other things ,)that he had been told by Mr. Nicol and Mr. Adsett that / naack ben*had been imposed "by the Storemen and Packers' Union". Mr. Bonding said "yes that's right". Mr. Hall said "well it happened to Toowoomba Foundry and also to our associated company in Brisbane, Southern Cross Machinery (Brisbane) Pty. Ltd., and Southern Cross Development Pty. Ltd. and it applied to both imports and exports". Mr. Bonding said "that's right". Mr. Hall said to Mr. Bonding "Mr. Nicol advised me that the Trades and Labour Council have requested a number of unions. including the Federated Storemen and Packers' Union of Australia, to apply the ban and that I should talk to Mr. Forrester about the ban. You're the State Secretary of the Association of Architects Engineers Surveyors and Draughtsmen of Australia". Mr. Bonding said "yes that's right". Mr. Hall said "well as I understand it this ban has been put on at your request." Mr. Bonding said "well we went to the Trades and Labour Council and we wrote to the Trades and Labour Council indicating to them that we were having some difficulty in recruiting members or recruiting potential members of the Toowoomba Foundry. A meeting was czrlled on by the Trrides and Labour Canuncil and at that meeting we discussed what we had been doing. ~ 2/34 - 34 - Mr. Forrester advised the meeting that he had been up there and conducted some discussions. The meeting then discussed ways and means of assisting our Association and it was resolved that the Storemen and Packers would implement bans as a means of trying to assist us in enrolling these people." Mr. Hall said "yes, well you said that they are not at your request but now you have just in fact said that they are on at your request." Mr. Bonding said "well that's right". Mr. Hall said "and they're on to assist you to enrol members in your Association. How long are the bans going to last?" Mr. Bonding said "well probably until we can achieve what we set out to do, and that was to enrol the people up there and unionise the area, that now cores under the coverage of the award. We are seeking to have full unionisation of the people coming under the coverage cf these awards and you know I would say that probably the bans or the implementation of the bans would remain until that objective was achieved." Mr. Hall said "that I did not want to debate the rights and wrongs of unionism at the moment and that what I rang about was the ban on Foundry and other companies within the Southern Cross group of companies. You tell me that you asked for a ban and you bring it on and you say it stays there until all members join the union." Mr. Bonding said "well we are saying until you know the company is prepared to D suggest to thee= neonle that 1t is in the company's interest and in their interest that they join the 22-/35 -35- Association the ban stays on." Mr. Hall said "0O.K. Thanks very much. Good-bye." On the morning of 12 Decemberg1978 Mr. M. Goodwin, a foreman employed by Jacksons, attended the wharves with necessary documentation to collect goods consigned to Toowoomba Foundry. He spoke to Mr. Adsett and said to him "I am here to collect goods for Toowoomba Foundry Pty. Ltd. " Mr. Adsett said that his members "will not load the goods until he has orders from the union office or Fred Nicol." Mr. Goodwin said "0.K." and then left. Also on the morning of 12 Decemberg1978 Mr. P. Grant, a truck driver employed by McMillans went to the wharves with all necessary documents to collect the crate of screw pumps consigned to Machinery. He presented the documents to an employee of Brisbane Wharves and Wool Dumping Co. Pty. Ltd. who was a delivery clerk. He was informed that the goods could not be delivered as "The Federated Storemen and Packers' Union of Austrailia" had imposed a"black ban" "on the movement of all goods within the Southern Cross group of companies and no delivery could take place." Mr. Grant therefore returned without the goods. Mr. Nicol gave evidence that a ban cannot be imposed without the authority of at least three trade unions. He outlined the procedure followed in imposing «+ -/36 ~ 36 - a ban once it had been authorised by the requisite number of unions. He said that 1n the present case the procedure followed was that a union officer got in touch with the Queensland union's member at the wharves, in this case Mr. Adsett who was also Chairman of the Job Committee. He said "with this company in question, Toowoomba Foundry, the area where the quickest result could be brought about would be to impose bans on goods being brought into the country for Toowoomba Foundry through the shipping container divisions. A request then was made to our member at the container division, as I have already indicated, who is also the Chairman of the Job Committee." The ban was then imposed. Mr. Nicol said that the Job Committee was established in about 1974 at the suggestion of a Conciliation and Arbitration Commissioner to ensure that when bans were imposed, apparently a not infrequent occurrence at the port of Brisbane, only the goods consigned by or to the company subject to the ban were affected. It seems that goods consigned by or to other persons not being subject to the ban could be unintentionall, affected. Hence, the role of the Job Committee was to examine the relevant shipping papers and other documents before the ship arrived in the port of Brisbane to determine which goods would be affected by the ban and which would not. The Job Committee has members represcnt.7- five trade unions - the Waterside Workers' Federation of Australia, the Seamen's Union of Australia, the Federated .--/37 -37 7-7 Clerks Union, the Amalgamated Metal Workers and Shipwrights Union of Australia and the Queensland union. Mr. Nicol said that he was not at the meeting of the Trades and Labour Council where the request was made to the Queensland Union to impose the ban. As to the purpose of the ban he said "the purpose would have been, and still is, in any circum- stances such as this to lend assistance to the other union which is requiring assistance. It as the only reason." And again "to assist A.A.E.S.D.A., as it is known, to enrol into its union persons who they were eligible to have enrolled, and that was the only reason that we were involved. There was no other disnute whatsoever." Mr. Nicol gave evidence as to the procedures normally followed on the lifting of bans. He said that they are lifted MF the request of the Trades and Labour Council. The request is communicated to the representative of the Queensland Union on the wharves who then calls together the representatives of three of the five unions represented on the Job Committee. Although five unions are involved, three are princivaily involved, namely the Queensland Union, the Federated Clerks Union and the Waterside Workers Federation of Australia. Mr. Nicol said that the Queensland Union representative then calls the representative of those three uniors t- sther ana tells them of the reyvuest from the Trades and Labour Council and says wef 38 ~38- that he proposes to remove the ban. Although they have some autonomy, Mr. Nicol said that he would expect that the communication of the request would be followed by the members of the job committee. He said that the job committee has "a huge notice board which has listed on it firms and boxes which are subject to banning, and there is also a book kept on this, and a list goes to the employer's office. ...so immediately there 1s a ban to be removed, all of these matters are taken care of. They are removed from the board, removed from the book and the employer is notified that the company or the box is no longer subject to being banned. " Mr. Adsett said that he personally is not authorised to lift any ban. It is clear from the evidence that the authority to lift the ban stems from a decision to that effect from the Trades and Labor Council. I have already mentioned that Mr. Adsett is the president of the Queensland union and cnairman of the job committee as well as being a shop steward appointed under Rule 22 of the Queensland union's rules. He said in evidence that he represents the members of the Queensland unicr employed on the wharves at a particular time. He said "I am in accord with assisting them (A.A.E.S.D.A.) to get 100% union membership which also looks after our particular interest with that particular term." There is no doubt that Mr. Adsett is actively involved in the implementation of the ban on the wharv: but when the ban was imposed, in the first instance, he was on holidays and has since then carried out his instructions to continue tna san. nz ecrced that 31f the ban continued, Tu. 7 Foundry would have problems and that it would be very difficult for 1t to carry on its business in 2/39 -39- "certain sections". He agreed that the more difficult it was for Toowoomba Foundry to carry on its business, the less likely it would be that it would make a profit. In his affidavit Mr. Adsett said:- "9, I expressly deny that any conduct on my part or any conduct which I personally or on behalf of my union sought had or has the purpose of causing substantial loss or damage to the business of Toowoomba Foundry Pty. Ltd. ox any other corporation. My sole purpose has been the legitimate furthering of the interests of the "Association of Architects Engineers Surveyors and Draftsmen of Australia and as a necessary consequence the preservation of the established terms of employment enjoined by the members of the Union to which I belong who are employed by the applicants." Mr. Bonding said in his affidavit:- "16. I expressly deny that any conduct on my part or any conduct which I personally or on behalf of my union sought had or has the purpose of causing substantial loss or damage to the business of Toowoomba Foundry Pty. Ltd. or any other corporation. My sole purpose has been the legitimate furthering of the interests of the Union of which I am Branch Secretary. 17. The company has unilaterally attermted to abandon and has sought to erode the established principle of union membership of employees of Toowoomba Foundry Pty. Ltd. and related companies, where the callings of those employees are covered by a relevant industrial award. The purpose of my conduct both personally and on beralf of the association and my seeking the aid that I have sought has been solely to promote the interests of the association and 1ts memoers and 1s consistent with fundamental trade union principles. The stance taken by the applicants herein has required me to act for the self protection of my members and the well-being of the association, notwithstanding long and patient attempts to resclve this aberration on the part of Toowoomba Foundry Pty. Ltd. and its related companies by patient dialogue and negotiation. 1c. ff bo. pever coma xt unrpose rersonally «rc. behalf of cre Unicen of vwaAich 1 um Brancn Secret ur: to cause substantial loss or damace to the business of any of the applicants or indeed any loss or damage at all. There are 23 persons who are eligible -+-/ 40 -40- to be members of my association and the annual membership fee this year 1s $55.00 a member so that the financial aspect of $1,265.00 1s not in any way at all a significant consideration. What is at stake which 1s of paramount importance to my members is that well established conditions of employment for my members are preserved and fundamental trade union principles are not erodcd:" He said in evidence during examination in chief:- "We were seeking to achieve the position that previously existed whereby all persons who were covered by an award to which our association 1s a respondent would become a member of our association...we would hope that the company would make a recommendation to these people as they have done in the past, that they become members of our association. ...that is all we require". He said:- "No, I never ever set out in any way or sort through the actions of our association that any harm should come to the Toowoomba Foundry." He agreed that harm might be caused to Toowoomba Foundry unless it changed its attitude. He said that the Southern Cross group was not informed that a ban was likely to be implemented or that it was being implemented. Notification of the existence of an industrial dispute has been given under section 25 of the Conciliation and Arbitration Act, 1904, the parties to the dispute being A.A.E.S.D.A. and Toowoomba Foundry. The notification rclated to the existence of the "black ban". The notification 1s in writing but neither it nor a copyste in evidence. Mr. Bondirg sapéthat the reason for this 1s the recent airline strike. The dispute wasto come before Mr. Commissioner Brown in Brisbane on the afterncon cf Wednesday, 20 December, 1978 but he could not reach Brisbane due to the airline strike. It appears that the dispute was relisted for 3 Januaryy 1979. 02 -/4l -41+ I turn now to the issues in the case. The application before me for interlocutory injunctions 1s based upon s. 80 (2) of the Act, which provides:- "(2) Where in the opinion of the Court it is desirable to do so, the Court may grant an anterim injunction pending determination of an application under sub-section (1)". Sub-section (1) empowers the Court to grant an injunction restraining a person from engaging in conduct that constitutes or would constitute a contavention of s. 45D. The Court may grant an interim injunction whether or not it appears that the person to be restrained intends to engage again, or to continue to engage, in such conduct (s.80 (4) ). As to the exercise by this Court of the power to grant an interim injunction under s. 80 (2), Bowen C.J. said in World Series Cricket Pty. Limited v. Parish (supra) ™ e? yi cot "The Court 1s given jurisdiction to grant an interim injunction under sec. 80(2) where, in its opinion, "it 18 desirable to do so". These words confer a judicial discretion of the widest kind upon the Court. It 1s not an aribtrary 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 1s appropriate for different jurisdictions in which interlocutory relief may be obtained. Whether or not the jurisdiction being exercised 1s equitable, 1t 1s inherent in the rature of an application for interlocutory relief that tne evidence upon which the application must be determined will be incomplete and unsatisfactory for the purpose of making a final fanding. In Beecham Crvcun Tarited vw. Brictol laboretori Pty. Limi. 2 yl.) tee eee 225, . of the Hign Court granted an i:.tericcutory injunction pursuant to its statutory jurisdiction under sec. 31 of the Judiciary Act, 1903, to make such orders 1n the cause before 1t as were just. fa ) You eats wee «ef 42 -42- The High Court was seized of the matter under the Patents fict 1952, and was not exercising any inherent equitable jurisdiction. Nevertheless, it invoked principles developed an equity to determine how it should exercise its statutory Jurisdiction, though 1n some ways, departing from those principles, where the special nature of the patent jurisdiction made it appropriate to do so. 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 1s required to make out a prima facie case, "in the sense that if the evidence remains as it 1s, there 1s 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 1s seeking to assert, and the consequences waich will flow from the maxing 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. It has recently been said by the House of Lords in American Cyanamid v. Ethicon Limited (1975) A.C. 396 that 1f tne court 1s satisfled that there 1s a serious question to be tried, it should not further test the strenatn of the plaintiff's case before deciding the balance of convenience. It may be that in a case such as the present there 1s no essential difference between the views of the High Court and of the House of Lords as to the strength of the case which the applicant must make out. Whether it is necessary to establish a prima facie case in the Beecham sense, or a serious question to be tried in the American Cyanamid sense, what will be required will vary from case to case. If there is a divergence in approach, 1t would be proper for this Court to follow the judgment of the High Court in Beecham Group Limited v. Bristol Laboratories Pty. Limited... Proceeding. alder u.o Vrrdo Practices \ct have special character in tnat tne Act deals with the protection of the public interest...in the course of protecting that public interest, the Act also enables a party to seek relief from injury to his . + -/43 -43- own interests. An applicant for an injunction under s, 80 need not show that a proprietary interest of his is affected, or that he has suffered special damage, or indeed, that he personally has suffered any damage at all. .... These factors... do not require that the balance of convenience should be ignored or that a party's entitlement to interlocutory relief should depend on an assessment of facts made from unsatisfactory evidence. The reasons which militate against such a course apply with equal force to proceedings under the Trade Practices Act as they do elsewhere. That is not to say that there are not special factors to be taken into account when exercising jurisdiction under the Trade Practices Act. Special considerations with respect to interlocutory injunctions apply in other fields 1ncluding common law injunctions to restrain defamation, injunctions to restrain breach of a patent and injunctions to restrain breach of copyright. In the same way special considerations will arise under the Trade Practices Act, and the Court will not necessarily apply all of the principles wnich a court of equity would apply in a suit here only individual interests of private litigants were in issue...." See also Hornsby Building Information Centre Pty. Limited & Anor. v. Svdney Building Information Centre Ptr. Limited (1978) 52 A.L.J.R. 392. PRIMA FACIE CASE ; urn to the question whether a prima facie case has been made out by the applicants in the sense discussed by Bowen C. J. in the World Series Cricket case. The applicants contend that the respondents have contravened s. 45D (1). They put their case in the alternative:- (a) that each of the respondents in concert with each other and with others (not parties to the proceedings including the Waterside Workers' Federation of Australiu, the Seemens' Union of Australia, the Amalgamated Metal Workers' and Shipwrights' Union of Australia, the 122/44 (b) (c) (d) (e) -44- Federated Clerks' Union, A.A.E.S.D.A., and the members of the Queensland Union who are employed at the wharves) has engaged and is continuing to engage in conduct that hinders or prevents the supply of services by Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McM1llans, and Nominees to the applicants; that each of the respondents in concert with each other and with the others mentioned in (a) has engaged and is continuing to engage in conduct that hinders or prevents the supply of goods by the U.S. and U.K. suppliers to the applicants; that each of the respondents in concert with each other and with the others mentionec in (a) has engaged and is continuing to engage in conduct that hinders or prevents the supply of goods by the applicants to Maylands and to the Queensland Department of Works; that each of the respondents in concert with each other and with the others mentioned in (a) has engaged and is continuing to engage un conduct that hinders or prevents the acquisition of services by the applicants from Jacksons, Browns Transport, Under.ooc Storage, Finney Brothers, McMillans, and Nominees; or that each of the respondents in concert with , le -45- each other and with the others mentioned in (a) has engaged and is continuing to engage 1n conduct that hinders or prevents the acquisition of goods by Maylands and by the Department of Works from the applicants. In each case, the applicants contend that the relevant conduct was and is being engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the relevant corporation. It is not disputed that the applicants, Maylands, Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans, and Nominees are corporations as defined by s. 4 (1) ef the Act. I shall consider first the contention which I have lettered (a). (a) I have set out the facts relevant to this ané other contentions. In my opinion the Queensland union in conce with the respondents Bonding and Adsett and with the Watersidz Workers' Federation of Australia, the Seamens' Union of Australia, the Amalgamated Metal Workers' and Shipwrignts' Union of Australia, the Federated Clerks' Union, A.A.E.S.D.A. a7 the members of the Queensland union employed at the wharves engaged and is continuing to engage in conduct that hinders or prevents the supply of services by Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans and Nominees to Toowoomba Foundry and Machinery. The definition of "person" an the Acts Interpretation Act, includes not only Bonding and Adsett as natural persons but Ug the Quvensiana urica and (¢Lacr dniens to wnich I kheve rifoarse.. -- » /46 -46- The other unions are not parties to the proceedings and therefore not bound by my findings or any orders which the court may make. Nevertheless I am entitled to make findings even if they involve persons not being parties to the proceedings. The Queensland union was a party to the decision taken by theTrades and Labor Council in October 1978 requesting 1t to impose a "black ban". It has imposed the ban and is continuing to impose it in concert with the others I have mentioned. SORT toon In my opinion Mer: Bonding has, in concert with the Queensland union and the other unions to which I have referred, engaged in the same conduct. He played a major role in bringing the dispute at the Toowoomba works to the attention of the Trades and Labor Council. He attended the relevant meeting of the Trades and Labor Council in October and voted in favour of the imposition of the ban which was imposed and is continuing. 'wd, (aasete had nothing to do with the initial recommendation by the Trades and Labor Council to the Queensland union in October to impose the ban; but ne has played an activerole in its imposition and continuance in concert with the Queensland union and its other members who are employed at the wharves, and all of whom decline to handle goods consigned to or by the applicants. It was not argued that We Bonding and Me. Adsett have not contravened s. 45D (1) or (1A) on the ground that they acted solely os officers cf their respective unions. Although there is not evidence that any goods consicne . to or by Industrial Enterprises or Development are held at the 22/47 -47- wharves because of the "black ban", the evidence I have referred to earlier establ}shes that the ban covers all imports and exports of each member of the group. The main question arising under s. 45D (1) to which the respondents devoted their attention during the hearing was whether the ban is imposed for the purpose of causing substantial loss or damage to the business of the applicants. It 1s clear from the language of s. 45D itself that there is no necessity for the purpose of causing substantial loss or damage to be the sole or dominant purpose. It 1s sufficient 1f there are purposes that include that purpose. See s. 45D (2) and the judgment of Keely J. in Utah Development Co. & Ors. v. The Seamen's Union of Australia & Ors. (1977) A.T.P.R. 17,528 at page 17,533. I am mindful of the distinction drawn in the report- ed cases between words such as "purpose", "motive", "intention" and "result". See for instance Crofter Hand Woven Harris teood 3) Company Limited v. Veitch & Anor. (1942) A.C. 435 at pages 1442- per Viscount Simon L.C.; McKernan v. Fraser & Anor. (1931) > 46 C.L.R. 343 at page 362 per Dixon?(as His Honour then was) and at pages 402-4 per Evatt J. In the Crofter case Viscount Simon L.C. said at "There is the further difficulty that, in some branches of the law, "intention" may be understood to cover results wnich may reasonaply flow from what 1s deliberately done, on the principle that a man 1s to be treated as intending the reasonable consequence of his acts. Nothing of the sort appears to be involved here. It is much sae . " The question Geli ominiay v.77 a combination to do an act wnich damages others is actionable, even though it would not be actionipie if done by a single person, 1s not "did the combiners appereciate, "or should they be treated as appreciating, wen Pa we WAS zaan vorpose" or "ar n> »»./ 48 -48- that others would '¥Ysuffer from their action," but "what is the real reason why "the combiners did it?" Or, as Lord Cave puts it, "what is "the real purpose of the combination?" The test is not what 1s the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It 1s not consequence that matters, but purpose; the relevant conjunction is not ..."so that..." but ..., "in order "that." Next, 1t is to be borne in mind that there may be cases where the combination has more than one "object" or "purpose." The combiners may feel that they are killing two birds with one stone, and, even though their main purpose may be to protect their own legitimate interests notwithstanding that this involves damage to the plaintiffs, they may also find a further inducement to do what they are doing by feeline that 1t serves the plaintiffs right. The analysis of human impulses soon leads us into the quagmire cf mixed motives, and even 1f we avoid the word "motive," there may be more than a single "purpose" or "object." In McKernan v. Fraser Evatt J. said at page 403:- "Sir Godfrey Lushington said, in special reference to combined action against employers or non-unionists on the part of unionists, that to ask the question whether they acted to defend their own trade interests or to injure their economic adversary for the time being, is equivalent to asking of a soldicr who sroeve to kill in battle, whether he does so for the purpcso of injuring his enemy or of defending nis country. TT... analogy 1s sound, because combined strixe acticn is usually undertaken for tne purpose, botn of causine harm to the employers and for the improvement or maintenance of the standards of the unionists. As Lord Sumner said in Sorrell v. Smith (1925) A.C. at 734: "All well planned and successful ccmrercial action of this kind must prejudicially affect the Yival and is intended to do so". Such is the commencing and not the finishing point of the relevant unguiry. " SS The analogy referred to in that passage from the judgment of Evatt J. 1s sound in the present case to relent @escrire tre eu. 2.7 of 2 piseng tha "bleci: ban". In my opinion the respondents imposed the "black «../ 49 -49- ban" for a number of purposes. The dominant purpose was to lend the aid of the Queensland union to A.A.E.S.D.A. in pursuit of a common unrpn objective of 100% unionism of employees covered by awards. They selected the "black ban" as the appropriate weapon to be used against the applicants as 1t had been successful in past disputes to bring them to heel and as it was the most effective exercise of industrial muscle available. They hoped that the ban would be shortlived and that the applicants would come quickly to the conference table as they had done in the past, embracing a settlement in which the principle of 100% unionism again would be accepted. I have no doubt that 1t was a purpose of the respondents that if the applicants did not quickly succumb the ban would continue until they eventually did and that harm would be caused, albeit regretfully, to their business in the meantime. The new event in the dispute that had not existed back in 1974 and soon thereafter was the presence of Mr. Hall as general manager. Part of the purpose in imposing the ban was to bring Mr. Hall to heel and teach him a lesson through the inconvenience and damage that would be caused to the applicants if his intransigence continued. The attitude of A.A.E.S.D.A. to Mr. Hall is trenchantly illustrated in tne letter of 1 December, 1978 from Mr. Forrester to Mr. Griffiths. Counsel for Mr. Bonding graphically described Mr. Hall's attitude as "bloody-mindedness". However, Mr. Hall has remaired resolute. "2: and the applicants are embarked on a collision course with the respondents. Clearly a purpose ..+/ 59 -50- in the imposition and continuance of the ban is the prospect of loss or damage to the group, notwithstanding the protestations to the contkary by Messrs. Bonding, Adsett and Nicol. However, I should not leave this aspect of the case without saying that I was impressed by all three gentlemen as witnesses. They are all experienced and seasoned trade union men, genuinely devoted to the trade union cause and proud of it. They are intelligent, shrewd and discerning. They did not wish to cause unnecessary harm and inconvenience to the applicants. They were primarily concerned to ensure that the Southern Cross group adhered to the principle of 100? union membership, and saw the events of this case as threatenin to erode this principle which they regarded as fundamental to the trade union movement in Queensland. If damage, substant ial or not, was to flow - so be it. That was their view; but they genuinely hoped that things would not come to such a pags and that the applicants would give way as soon as the bans were imposed as they had done in the past. Further, whatever the initial views may have been of those who imposed the ban, it 1s clear that as the ban has continued on foot and the applicants have shown no sign of budging from their position, the respondents are continuing the ban amongst other purposes, for the purpose of causing substantial loss or damage to the applicants. As to whether the imposition of the ban would have or be likely to have the effect of causing substantial loss or damage to the annlicants, the respondents have contended that all that is involved are some "Century" motors, «e-/51 -51- "Aermotors" pumps, and a crate of screw pumps which are a small part of a very large business and therefore there is no substantial loss or damage. It as true that the applicants are members of a group which together have a substantial business both as to volume and value and by way of import, export and manufacture; but the ban is to extend indefinitely and applies to both imports and exports. The continuance of the ban necessarily must cause substantial loss or damage to the applicants' business. The access to an important part of the port of Brisbane will be denied them for imports and exports in a business of which 1mports and exports are the life blood. In my opinion, the ban answers the description of conduct that would have or be likely to have the effect of causing substantial loss or damage to the business of the applicants. It is no answer to say that other ports in Australia are open to the applicants as the ban only operates at the wharves. The fact is that the ban applies at the wharves and is holding up the delivery of goods to the applicants which they must have to fulfil orders and carry on their business. Even if they could make arrangements in the future for goods to be shipped to or from other ports or other parts of the port of Brisbane where the control of the Queensland union does not extend (and I am not satisfied that they could make those arrangements) why should they? They use the port of Brisbane rather than other ports for sound business reasons namely, 1% 1S rore convenient and saves extra fre1ght costs necessarily involved if goods are loaded or unloaded in the port of Sydney or other ports. They are entitled to use the »2/52 -52- wharves free of the "black ban". In my opinion, for these reasons the conduct of the respondents, the Queensland union, Bonding and Adsett falls within the terms of s. 45D (1). (b) I turn to contention (b), namely that each of the respondents in concert with each other and with others mentioned in (a) has engaged and is continuing to engage in conduct that hinders or prevents the supply of goods by the U.S. and U.K. suppliers to the applicants. The U.S. and U.K. suppliers of the goods at present on the wharves answer the description for the purposes of s. 45D (1) of third persons supplying goods to the relevant applicants (Toowoomba Foundry as to the goods from the United States and Machinery as to the goods from the United Kingdom). In my opinion, for the reasons given by me 2n relation to contention (a), the conduct of the Queensland anion, "Me A Oto ag and M&: Adsett falls within s. 45D (1). (c) Contention (c) is that each of the respondents in concert with each other and with the others mentioned has engaged and is continuing to engage in conduct that hinders or prevents the supply of goods by the applicants to Maylands and to the Queensland Department of Works. The applicants are the "third person" and Maylands is the "corporation" within the meaning of that expression in s. 45D (1). In my opinion the Queensland Department of Works is not a "corporation" within the meaning of that word in s.4 (1) of the Act; but s. 6 gives the Act an extended + operacvion. [son .. ..7iainiwd shat tae soction sceks to achieve in C.L.M. Iloldinds Pty. Limited, ex parte; the dudcvus of the Australian Industrial Court (1977) (A.T.P.R.) 17,292 at 22/53 -53- . 7) 5 ? - ~ \ pagés 17,296 and 17, 297. At page 17,297 His Honour said:- "Although the section 1S somewhat complicated it has its genesis in the unhappy fate which befell sec. 7 of the Trade Practices Act 1965- 1969 in Strickland v. Rocla Concrete Pipes Ltd. The meaning of the section 1s, however, reasonably clear. It gives to the Act or parts of the Act three different applications: first, an application in accordance with its terms; secondly, an application in accordance with sec. 6 (2) and thirdly, an application in accordance with sec. 6 (3). When sec. 6 (2) and (3) give the Act an extended operation by providing that the Act (or Div. 1 of Pt. V) shall have the effect 1t would have if the reference to "corporation" included a person not being a corporation, the result is that the relevant sections are to be read as 1f they were expressed in the form "corporation or a person not being a corporation". In my opinion s. 6 (2) (h) gives s. 45D (1) an extended operation with the result that the sub-section is to be read as if it was expressed in the form "corporation or a person not being a corporation", Whether the Queensland Department of Works answers the description of a "person not being a corporation" was not the subject of any contentions before me. The answer to the question may involve matters such as whether the Crown in right of the State of Queensland falls within the description of "a person not being a corporation". As I have reached the conclusion that contention (c) fails for other reasons, I will not decide this question on the hearing of this application for interlocutory relief. Contention (c) fails because the "black ban" is not 1umposed by the respondents for the purpose of causing substantial, or for that matter any, loss or damage to '*.he business of the relevant corporation namely Maylands, or te the Department of Works, even assuming both that the latter is "a person not being a corporation" and that it has a «22/54 -54- business. There 1s nothing.in the evidence to suggest that it is a purpose of the respondents to cause loss or damage to Maylands or the Department of Works. (a) Contention (dad) is that each of the respondents in concert with each other and with the others to whom I have referred has engaged and 1s continuing to engage in conduct that hinders or prevents the acquisition of services by the applicants from Jacksons, Browns Transport, Underwood Storage, Finney Brothers, McMillans, and Nominees. This contention fails. Although Jacksons and the other companies I have mentioned are "corporations", there is nothing in the evidence to suggest that it is a purpose of the respondents to cause loss or damage to any of them. (e) Contention (e) 1s that each of the respondents in concert with each other and with the others I have mentioned has engaged and is continuing to engage 1n conduct that hinders or prevents the acquisition of goods by Maylands and the Department of Works from the applicants. I have said earlier that I do not propose at this stage of the case to decide whether the Queensland Department of Works is "a person not being a corporation". As no contentions were advanced to support the proposition that the Department is "a third person" within the meaning of s. 45D (1) I shall adopt the same course. In my opinion, the evidence established that the "black ban" is hindering or preventing the acquisition of goods by Maylands from '1oowce:wa Voundry. The "Century" rotors anv "Aermotors" pumps are required by Toowoomba Foundry for the 22/55 -55- purpose of assembling pump units for despatch to Maylands and others in Western Australia. Toowoomba Foundry proposes to sell the assembled pump units to Maylands and other companies within the Southern Cross group. In my opinion, the"black ban" is hindering or preventing the acquisition of the assembled pump units by Maylands (the third person) from Toowoomba Foundry (the corporation). I have already concluded that a purpose of the"black ban" is to cause substantial loss or damage to the business of Toowoomba Foundry. In my opinion, this contention sofar as it relates to Maylands is sound. I turn now to the contention of the applicants that the respondents have contravened and are contravening s. 45D (1A) of the Act. This sub-section was introduced into the Act by the Trade Practices Amendment Act (No.2) 1978 which came into operation on the day on which it received the Royal assent (s. 2) namely 6 December, 1978. Although the "black ban" was authorised by resolution of the Trades and Labor Council in October 1978, it was not in fact imposed until 7 December,g 1978, one day after the commencment of the amending Act. The applicants submit that each of the respondents, in concert with each other and with the others I have mentioned earlier, have engaged 2nd are continuing to engage 1n conduct for the purpose cf preventing or substantially nindering <n applicants (each being "the third person" referred to in the sub section), from engaging in trade or commerce 2/56 -56- (a) between Australia and the U.S.A. or the U.K. (being "places outside Australia"); and (b) among Queensland and Western Australia ("among the States"). There is no necessity for the stipulated purpose to be the sole or dominant purpose. It is sufficient if there are purposes that include that purpose. See s. 45 D (2) which applies also to s. 45D (1A). I have mentioned with reference to s. 45D(1) the importance of the distinction between the word "purpose" and other words such as "motive" "intention" and "result". It 15 unnecessary to repeat what I said. One of the purposes of the "black ban" is to prevent the applicants from receiving goods consigned to them and which have arrived or will arrive in the future at the wharves by ship,and to prevent them from exporting goods. Toowoomba Foundry and Machinery have either themselves or through the customs and clearing agents, paid all the necessary dues entitling them to receive delivery of the gcods on the wharves. Are they being prevented or substantially hindered from engaging in trade or commerce between Australia and places outside Australla or among the States? In W. & A. McArthur Limited v. The State of Queensland & Ors. (1919-1920) 28 C.L.R. 530 Knox C.J. Isaacs and Starke J. wy said at pagés 546 and 547 :- " "Trade and commerce" between different countries - ve luave oat for tne prasent tae word "intercourse" - nas never baen confined to the mere act of transrortation cf merchandise over the frontier. Tnat the words include that act is, of course, a truism. But that they go --/57 -57- far beyond it 1s a. fact quite as undoubted. All the commercial arrangements of which transportation 1s the direct and necessary result form part of "trade and commerce". The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and the delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls "trade and commerce." p At pagé 548 Their Honours said:- "The addition of the phrase "among the States" excludes purely domestic trade and commerce, but does not alter the nature of the operations which constitute "trade and commerce" wherever it takes place . The argument that "trade and commerce among the States" was limited to mere transportation of goods over the border would, if sound, necessarily limit similarly "trade and commerce with other countries." The views expressed in the cases just cited are, as we have said, merely statements of the accepted meaning of English words, and are fully borne out by the way in which the words "trade and commerce" have been constantly used....We look only to the meaning attached to the words - ordinary English words - meaning the same in point of essentials to an American merchant, lawyer or writer as to an English merchant, lawyer or writer. In Welton v. Missour1 91 U.S. 275, at p. 280 Field J., speaking for the Court, said:- "Commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all its forms, including the transportation, purchase, sale and exchange of commodities between the citizens of our country and the citizens or subjects of other countries, and between the citizens of different States. In the matter of Ku-ring-gai Co-Operative Building Society (No. 12) Limited & Anor., a decision of the Full Bench of this Court as yet unreported, judgment delivered 18 December, 1978, Bowen C.J. said at pages 4 and 5 :- "The terms "trade" and "commerce" are ordinary ters whiten dese- ve all tac mutsal ceovmmunings, tne negotiations vero2l and by correspordcence, the bargain, the transport and the delivery which comprise commercial arrangements (W.& A. McArthur Ltd. v. State + +/58 -58- of Queensland (1920) 28 C.L.R. 530 at p. 547). The word "trade" 1s used with its accepted Inglish Meaning: traffic,by way of sale or exchange or commercial dealing (Commissioner of Taxation v. Kirk (1900) A.C. 588 at p. 592 per Lord Davey; W. & A. McArthur Ltd. v. State of Qucensland, Supra at p. 548). The commercial character of trade was mentioned more recently by Lord Reid un Ransom v. Higgs (1974) 3 All E. R. 949 at p. 955. His Lordship there said: "As an ordinary word in the English language 'trade' has or has had a variety of meaninads or shades of meaning. Leaving aside obsolete or rare usage 1t is sometimes used to denote any mercantile operation but is commonly used to denote operations of a commercial character by which the trader provides to customers for reward some kind of goods or services." Moreover, the word covers intangibles, such as banking transactions, as well as the movement of goods and persons for historically its use has been founded upon the elements of use, reqularity and course of conduct (Bank of New South Wales v. Commonwealth (1948) 76 C.L.R. at p. 381). " In my opinion obtaining delivery by a consignee of goods which he has agreed to buy from overseas suppliers and which have been shipped from a foreign country to an Australian port 1s an essential ingredient in trade or commerce between Australia and places outside Australia. I am satisfied that the respondents, the Queensland union, Me< Bonding and yf. Adsett, by the operation of the "black ban" are engaged in conduct for the purpose of preventing or substantially hindering the applicants from engaging in trade or commerce between Australia and places outside Australia. In my opinion the effect or likely effect of the conduct cf tucse reerena. tS 16 to prevent or substantiail, hinder the applicants from engaging in that trade or cormerce. 2.759 -59- In reaching this conclusion I have drawn no distinction between the various applicants for the reasons I have given earlier. Toowoomba Foundry proposes to assemble the "Century" motors and "Aermotors" pumps into pump units for saleand delivery to purchasers in Western Australia. The relevant purpose of the respondents in imposing the "black ban" is to prevent Toowoomba Foundry from obtaining delivery of the goods on the wharves. The evidence does not establish that the respondents had or have any knowledge of the proposal of Toowoomba Foundry; nor can such knowledge be imputedto them. So far as the respondents are concerned the goods may be required by Toowoomba Foundry solely for intrastate purposes, for example, sale within Queensland. One cannot attribute to any of the purposes of the respondents in imposing the ban a purpose of preventing or substantially hindering Toowoomba Foundry from engaging in trade and commerce among the States. In view of this finding it 1s not necessary for 7e to consider whether the conduct of the respondents 15 having or is likely to have the effect of preventing or substantially hindering Toowoomba Foundry from engaging in trade or commerce among the States. In my opinion, the conduct of the respondents, the Queensland union, ye. Bonding and Mr. Adsett falls within s. 45D (1A) (a). I turn now to the contention on behalf of the respondents that s. 45D (3) (>) operates to prevent the conduct of the respondents from conctituting 4 «+ -/60 ~60- contravention of sub-sections (1) and (la). The respondents contend, on the assumption that their conduct otherwise falls within either of those sub- sections, that such conduct 1s engaged in by the _, Queensland union (being an organisation of employees) and Be pascte, weing an officer of the Queensland union} or by A.A.E.S.D.A. (being an organisation of employces) and ue7| Bonding (berng an officer of A.A.E.S.D.A.); and that "the dominant purpose for which the conduct 1s engaaqed in is substantially related to -"(i1i) the ....conditions of employment..." of an employee or two or more employces who are employed by the one employer (namely Toowoomba Foundry) . The argument 1s misconceived for more than one reason. It necessarily requires that the word "and" where appearing between sub-paragraphs 45D (3) (b) (1) and (ii) 1s used 1n a disjunctive sense. Also it renders otiose the provisions of sub-paragraph 45 D (3) (b) (21) for the purpose of determining the persons who act un concert with each other. It 1s conceded by the respondents, and properly so, that on the facts of this case the reference in that sub-paragraph to "an employee" or "two or more employees who are employed by the one employer" must be to an employee or employees of Toowoomba Foundry as it 1s only the "conditions of employment" of an employee or employees of Toowoomba Foundry that can be relevant to the dominant purpose for whicn the conduct 1s engaged in. In my CDlse.l i sect oo: $3D (3) (b) prevents co rlest --/61 -61- contravening s. 45D (1) where a trade union or an officer thereof, or both the union and such officer, on the one hand and an employee or employees who are employed by the one employer on the other hand engage aun conduct otherwise falling within s. 45D (1) where the domznant purpose for which the conduct is engaged in is substantially related to the conditions of employment of such employee or employees (I leave aside as irrelevant to this case s. 45D (3) (b) (iv) ). For example, the employees A. and B. of an employer X. may work a forty hour week and wish to work a thirty hour week. They may ask the trade union of which they are members to place a "black ban" on the unloading of all delivery vehicles entering the employers factory. This is done and the employer is prevented from obtaining supplies of goods. This 1s one example of the possible application of s. 45D (3) (b). The word "and" between sub-paragraphs (1) and (121) is used 1n a conjunctive sense. The word "or" in sub- paragraph (1) is used in the disjunctive so as to specify the categories of persons who may form one side of the conduct engaged in. The other side 1S constituted by the employee or employees mentioned in sub-paragraph (i1). The respondents contended, on the assumption that what I have said is the correct analysis of s. 45D (3) (ob), that the-~evrdemnve-rs-thet the parties to the relevant conduct are the Queensland union on the one hand and either Mr. Sloane (a craw vemen crsloyed hv Tosweormwa Foundre) or he and other employees of Toowoomba Foundry being rembers ~.-/6 2 ~62- of A.A.E.S.D.A, on the other hand. Mr.Sloane is the representative of A.A.E.S.D.A. at the works of Toowoomba Foundry. He said in his affidavit sworn on 19 December,1978:- (sic) "5. I, with Frank Calligan/who is a fellow member of the Association an employee of the Toowoomba Foundry Pty. Ltd. and Secretary of the Toowoomba group of the association had discussions with these men and with John Forrester of the Association in relation to maintaining full union coverage at Toowoomba Foundry Pty. Ltd. These discussions were not successful in that none of the five has joined the Association." "7, On the 18th September, 1978 I wrote to Mr. Jim Bonding a copy of my letter is now produced to me and marked with the letter "A". On the 16th December, 1978 I wrote to Mr. Bonding again and now produced to me and er (fed with the letter "B" 1s a copy of that letter ther with a circular which I and Frank Calligan/ete lated in respect of member- ship of the Association at Toowoomba Foundry Pty. Ltd. " Attached to the letter of 18 December 1978 is a circular which Mr.Sloane and Mr.Callaghan signed and circulated to employees of Toowoomba Foundry who were members or eligible to be members of A.A.E.S.D.A. Included in the circular are the following statements:- "As you all know, a dispute now exists between the A.A.E.S.D.A. and Toowoomba Foundry Pty. Ltd. This dispute has been brought about by the failure of some technical staff and the majority of foreman and supervisors to take out membership of the AAESDA. The state executive of the AAESDA has decided to accept nothing less than 100% membership at the Foundry and, as approaches to management and employees did not produce the desired result, the matter was referred to the Queensland Trades and Labour Council for their assistance. The type of assistance being provided by the TLC does not meet with the approval of the majority of AAESDA members at the Foundry and the Queensland executive 1s being advised of this. If the asrist -. cere wreerp ls by tac TLC sri aacer pie desired exzlict, ii - Vi resuit gn AALSDA rlnsers at the Foundry having to support joint decisions made vy TLC affiliated unions here. At present, we can act independently of other unions and make our own decisions on matters as they arise. This 1s a situation -»-/6 3 -63- which we would- like to continue and therefore urge those who have not taken out membership to do so as soon as possible." Mr.Sloane gave no 'oral evidence. The part of the circular which I have extracted suggests to me that Mr. Sloane probably was aware of the decision of the Trades & Labor Council authorising the imposition of the "black ban"; but that he did not desire or support it. Far from indicating that he acted in concert with the Queensland union or any of its officers relating to the imposition of the ban, this evidence suggests the contrary. As to the contention that other employees of Toowoomba Foundry,being members of A.A.E.S.D.A.,acted in concert with the Queensland union or any of its officers, the evidence is that they supported Mr.Sloane in his attitude towards the Trades & Labor Council: See the extract from the circular. There are some 35 employees at Toowoomba Foundry who are members of A.A.E.S.D.A. Some or all (the evidence ty ate Coed is unclear as to which) of those employees approached He, la Bonding concerning the possible erosion of union membership conditions of employment at the Toowoomba Foundry. In co peep the consequence, Mr.[ Bonding held/discussions with Mr. Forrester, the branch organiser of A.A.E.S.D.A., Mr. Hall and Mr. Nauman, the industrial personnel officer of Toowoomba Foundry which . ; Ch ee dl I have referred to earlier. Also Mr. /Bonding said in paragraph 14 of his affidavit sworn on 19 December, 1978:- "In response to requests made for the Union's assistance to maintain the previously existing requirement of Union membershin, necotiations Ware urs wou TA Ler neon cs alten Ioan Brancn secretary art efFficiols at ''oowoorkba Foundry Pty. Ltd. and subsequently the assistance of the Queensland Tredes and Labor Council was sought by me on behalf of the members of my union. The concern of my Union at the erosion of previously +2 /6 4 -64- existing requireme:ut of Union membership was shared by the Trades and Labor Council. The Federated Storeman and Packers Union of Employees of Australia (Queensland Branch) joined with the members of my union at Toowoomba concerned at this érosion and with Mr. Forrester and myself on behalf of the Union in seek ing to take steps for the purpose of furthering ana undeed preserving the well established conditions of employment at Toowoomba Foundry Pty. Ltd. of employees covered by industrial awards. " None of this evidence enables me to find that employees of Toowoomba Foundry,being members of A.A.E.S.D.A., acted in concert with the Queensland union or any of its officers to bring about the "black ban". Even if this contention of the respondents was correct, 1t would still be necessary for the Court to be Satisfied that the dominant purpose for which the conduct is engaged in is substantially related to the conditions of employment of an employee (Mr. Sloane) or any of the employees (being members of A.A.E.S.D.A.) of Toowoomba Foundry. I have analysed earlier the purposes of the respondents in engaging in the relevant conduct. Tha evidence establishes that what the respondents seek by imposing the ban 1s that Toowoomba Foundry makes a recommendation to its employees, who are eligible for membership of A.A.E.S.D.A. but thus far have not joined that union, that they join it. Le In my opinion, even 1f that weré the dominant purpose for which the ban is imposed, that purpose would not be substantially related to the "conditions of employment" of Mr. Sloane or the employees of Toowocmba Foundry ,peing members of A.A.E.S.D.aA. The phrase "conditions of employment" in section 45D (3) (b) (111) connotes not merely "conditions 22/65 ~65- 'Of employment" of the employecs in their current employment (as to this see the decision of Smithers J. in Ascot Cartage Contractors Pty. Limited & Anor. v. Transport Workers' Union of Australia & Ors. (1978) A.T.P.R. 17,677 at page 17,681); but necessarily relates to the terms of contract of engagement between employer and employee. In the present case a recommendation by Toowoomba Foundry to such of its present employees as are eligible for membership of A.A.E.S.D.A. that they join A.A.E.S.D.A. (even if that recommendation has the force attributed to it by Mr. Hall of a direction) has nothing to do with the terms of engagement between Toowoomba Foundry and those employees. The respondents faii in their attempt to invoke s. 45D (3) (b). For these reasons, in my opinion the applicants have established a prima facie case to injunctive relief. Aiding, abetting etc. Before considering the balance of convenience, I Shall deal with one remaining matter, namely the application of s. 80(1) (f£) which provides that the Court may grant an injunction restraining a person from engaging 1n conduct that constitutes or would constitute aiding, abetting, counselling, procuring, inducing or attempting to induce any person to contra- vene a provision of Part IV or V of the Act. cu ude D I have concluded that dr./ Bonding and Me. Adsett are contravening s. 45D (1) and (1A); but if this conclusion is erroneous, 1n my Opinion each of these gentlemen is aiding, abetting, countcisint, protuarina, inducine or attemptins 42 induce the Queensland union to contravene those sub-sections. I have set out already the facts as to their role in relevant ~.-/66 -66- events which lead me to form this opinion. I proceed to look at the balance of convenience. Balance of Convenience Toowoomba Foundry and Machinery have goods consigned to them from abroad which are being held in a shed on the wharves. Toowoomba Foundry needs the "Century" motors and the "Aermotors" pumps to fulfil orders in Western Australia. Machinery needs the screw pumps to carry out its contract with the Queensland Department of Works. The contract value of the current orders in respect of the goods is measured 1n many thousands of dollars. The continuance of the "black ban" will prevent and hinder the applicants from importing and exporting any goods through the wharves. The business of the group is large. Unless interim injunctive relief is granted the applicants will suffer substantial damage. As to the respondents, they have not been able to point to any detriment which may be suffered by them if interlocutory injunctions are granted. Nor can I see any. It is not really a case of the balance of convenience. There 1s nothing to weigh in the scales against the damage which the applicants will suffer 1f injunctions are not granted. Finally I turn to two matters which the respondents contend ought to lead, in the exercise of the Court's discretion, to the refusal of interlocutory injunctions. Other Matters The first matter 1s that notification has been given under s. 25 of the C.i1c1iliatior and Arbitration Act, 1904 oF the existence of a dispute. I have set out earlier the facts relating to this notification. Many situations may give rise both to an industrial ira -67- dispute for which provision is made by the Conciliation and 'Arbitration Act, 1904 and to a contravention of s. 45D of the Act. This may be one such case, although the evidence is not clear as to a number of matters including the definition of the dispute and all the parties to it. It cannot be an answer to an applicant for injunctive relief under the Act, who 1s otherwise entitled to relief, to Say that,because an industrial dispute,which may concern substantially the same facts,is to be heard by a Commissioner under the Conciliation and Arbitration Act, 1904, the applicant 1s to be refused relief. I reject this notion completely. One does not know whether the facts before this Court which may come before the Commissioner are thesame or substantially the same, whether the issues have anything in common, whether the parties are or will be the same, when the Commissioner will hear the matter or what the result of the hearing will be? These are but sore of the matters which must lead to the rejection of the contenticn of the respondents. But there are more substantial reasons than these, one being that the Act specifically prohibits conducz such as that mentioned in s. 45D and provides its own remedies for dealing with 1t, including the power to grant injunctions under s. 80. This 1s not to say that there may not be circumstances where it would be proper for this Court, in the exercise of its discretion, to await the result of proceedings under the Conciliation and Arbitration Act, 1904 before embarking on the hearing of proceedings under the Act; but 1t 1s a fundamental misconeepeion of tne l.ce te assume tnat merely because th re 1. a dispute to be heard by the Conciliation and Arbitration Commission which may (and for that matter, may not) involve -68- substantially the same facts, this Court would not exercise ats powers under the Act. In thepresent case, not to hear the application for interlocutory injunctions or, having heard it, not to grant relief merely because a dispute is soon to be heard by another tribunal under another Act of Parliament, which may involve substantially the same facts, would be a serious failure by this Court to exercise its jurisdiction and would cause grave injustice to the applicants. I was referred in support of this contention by the respondents to the decision of StreetJ. (as His Honour then was) in Barry M. Miller v. Actors Equity (1970) 1 N.S.W.R. 614 wie His Honour refused to grant interlocutory relief to plaintiffs where there was a dispute pending before the Conciliation and Arbitration Commission. That case turned on its own special facts and has little bearing on the case beforc me, not only because the facts are very different: but this under s. 80 is an application/for alleged contravention of s. 45D of the Act. It has been said more than once that special consider-~ ations arise under the Act and that the Court will not necessarily apply all of the principles which are applied by a Court of equity concernedessentially with competing private rights and duties. In proceedings under the Act the public interest may be involved. See World Series Cricket Pty. Ltd. v. Parish (supra); Hornsby Building Information Centre Ptr. Ltd. & Anor. v. Sydney Building Information Centre Pty. Ltd. (supra); and the decisicn of .cwena C. J. in Iaspcs Mater Service oo. & Ors. v. Wang Computer Pty. Ltd. (as yet unreported, judqrent delivered 15 December, 1978). 7 4a ~69- This contention of the respondents fails. The second contention of the respondents is that if this Court grants interIpcutory relief against the respondents it will be a hollow order as the "black ban" is imposed by the Waterside Workers Federation of Australia and by the Federated Clerks Urion as well as by the Queensland union y ao \ we the orders of this court bind only the parties against whom they are made, the ban will remain because the other two unions (1.e. other than the Queensland union) will prevent the applicants obtaining delivery of goods on the wharves The contention is based on some ambiguous evidence given by Mr. Nicol, the secretary/treasurer of the Queensland union which, so the respondents contend, was to the effect that the Waterside Workers Federation and the Federated Clerks' Unzon also were imposing a "black ban" on goods consigned to or by the Southern Cross group. This evidence probably was based on what Mr. Nicol had been told by another officer of the Queensland uric as to the decisions made by the Queensland Trades and Labor Council at the October meeting, Mr. Nicol then being away on annual leave. 7 elas I accept the evidence of Mr Bonding who was prescnt az the October meeting and who said unequivocally that ieewes only the Queensland union wa was requested to impose the "black ban". There is nothing in theevidence to reliably suggest that the other two unions are imposing or contemplating the imposition cf their own bans. The contention of therespondents fails for this and another reason, r7nely that this court will not withholeé anjunctive relief to prevent the continuance of a "black ban", «. thus restrain a contravention of s. 45D, on the ground that some organisation, not a party to the proceedings, may itself impose -.-/70 -/0- its own "black ban" on the same or other goods of the applicants. For these reasons I am satisfied that the applicants 'are entitled to the benefit of interlocutory injunctions to restrain contraventions of Ss, 45D by the respondents, the Queensland union, ye. Bonding and ye Adsett. Upon the applicants by their Counsel undertaking to the Court to pay to any party adversely affected by the interlocutory injunctions such compensation (if any) as the Court thinks just, in such manner as the Court directs, I make the following orders:- 1. THAT the respondents, The Federated Storemen and Packers Union of Employees of Australia (Queensland Branch), James Edward Graham Bonding and Ernest Edward Adsett be restrained until the determination of the proceedings or further order from engaging in the following conduct, namely:- (a) conduct that hinders or prevents the supply of services by R. Jackson Pty. Ltd. (Jacksons), Browns Transport Consolidated Pty. Ltd. (Browns Transport), Underwood Storage Company (1971) Pty. Ltd. (Underwood Storage), Finney Brothers Transport Pty. Ltd. (Finney Brothers), McMillans Customs Services Pty. Limited (McMillans), McMillan Nominees Pty. Ltd. (Nominees) to the applicants or any of them in contravention of section 45D of the Trade Practices Act, 1974; (b) conduct that hinders or prevents the consignment of goods to or by the applicants or any of them an contravention of the said section; (c) conduct that hinders or prevents the collection or transport of goods consigned to or by the -71l- applicants or any of them an contravention of the sqid section; (d) conduct that prevents or substantially hinders the applicants or any of them from engaging in trade or commerce between Australia and places outside Australia in contravention of the said section; (e) aiding, abetting, counselling, procuring, inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour fron Jacksons , Browns Transport, Underwood Storage, Finney Brothers, McMillans and Nominees or any of them when and to the extent that such labour 1s, according to the ordinary course of practice, required for the purpcose of collecting, loading or unloading goods cousicn- to or by the applicants or any of them, wnere such conduct 1s engaged 1n for the purpose cand would have or be likely to have the effect of causing substantial loss or damage to the business of the applicants or any of them except where sucn conduct 1S within the description in paragraph 45D (3) (a) or (b) of the said Act. 2. THAT the costs of all parties be reserved. ---/72 -72- 3. THAT liberty be reserved to any party to apply on two . days' notice. : ce me ne a ee re ns ee ee Pert oy teci tr as, seventy -ene presse At Taras eo Tt cop, Cf 8 Cras c3 for Cet omer cre a er mas 1 oncer AND REASONS FOR JUDGMENT AMENDMENTS TO ORDER/MADE BY MR. JUSTICE LOCKHART ON 5 JANUARY,- 1979. { JUDGMENT My a sneee J 14. IN THE MATTER OF THE TRADE PRACTICES ACT 1974 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q NO. 8 OF 1978 GENERAL DIVISION BETWEEN: INDUSTRIAL ENTERPRISES PTY. LTD. TOOWOOMBA U Y. . N H Y BRISBANE) PTY. LTD. and SOUTHERN CROSS DEVELOPMENT PIY. LID. Applicants THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, &. ZAPHIR, J. FORRESIEPR, ADSETT BONDING and THE FEDERATED STOREMEN AND PACKERS QUEENSLAND Line 2, page 1 - delete comma after "(Queensland Branch)" JUDGMENT delete comma after "Trade Practices Act" ay ' Line 2, page Line 18 page - delete the words "which has been" Line 3, page - add comma after "the Queensland union") Line 4, page - delete comma after "Arbitration Act" Line 14 page add the word "Certain" before the word "goods" Line 19 page 3 - insert a semi colon after the word "goods" Line 17 page - delete the words "have been" rw UW we UW i] ~ begin new paragraph before the words "The Southern Cross" Line 5, page Line 11 page 4 - insert the word "goods" before "to New Zealand" -2./2 Line Line Line Last Last Line Line Line Line Line Line Line Line 12 page 4 - delete the word "and". Commence new sentence with the word "The" after "Africa", 20 page 4 - delete comma after thé word "Act" 7, page 5 - delete comma after the word "August". line page 5 - delete comma after the word "December". line page 11 - add the word "and" after "corporation;" 11 page 12 - add the word "and" after "States;" 22 page 13 - delete the word "industries" and substitute the word "activities". 4 page 14 - delete comma after "June" 5 page 14 - substitute "two million dolirs" with the figures "$2,000,000" 7 page 14 - substitute "ten million dollars" with the figures "$10,000,000" 8 page 14 - substitute "five million dollars" with the figures "¢5,000,000". 10 page 14 - delete comma after the word "June" 4 page 16 - delete comma after the word "January". Third last line, page 16 - insert comma after the word "questio1 Line Line Line Line Line Line Line Line Line Line Line Line Line Line 9 page 17 - insert comma after "that" 11 page 17 - insert comma after "evidence)" 19 page 17 - insert comma after "now" 22 page 17 - insert comma after "1979" 9 page 18 - delete comma after the word "March" 13 page 18 - delete comma after "March" 14 page 18 - delete the word "and" after "months" 1 page 19 - delete comma after "November* 7 page 20 - insert comma after "packers" 8 page 20 - insert comma after "Foundry" and unsert the word "Queensland" before the word "union". 9 page 20 - delete "satisfied" and substitute with the word "prepared" and delete the word "other" 16 page 21 - insert comma after "award" and delete the word "after" and substitute with "following" 22 page 21 - delete the words "in the history of Toowoomba" 23 page 21 - delete the word "Foundry" and insert the words Wher Tantinnmha GanndAyrutl aftan the ward "require Line Line Line Line Line Line Line Line Line Line Last Last Line Line Line Line Line Line Line Line Line Line Line Line Line Line -3- 24 page 21 - insert the word "that" after "and" 10 page 22 - delete comma after "Hall" 11 page 22 - delete comma after "Nauman" 13 page 22 - delete comma after "Forrester" 14 page 22 - delete "particular" 15 page 22 - delete comma after "May" 4 page 23 - delete comma after "July" 17 page 23 - insert comma after "threatening" 22 page 23 ~— delete comma after "August® 5 page 24 - delete comma after "September" paragraph page 24 line 3 - delete the word "copy" and substitute the word "exhibit" paragraph page 24 line 4 - delete the word "photostatted" and substitute the word "copies" 4 page 25 - insert "the after "without" 6 page 25 - delete comma after "October" 14 page 25 - add comma after "had" 16 page 25 - delete comma after "October", 26 page 25 - commence new paragraph with the word "Soon", 1 page 28 - delete comma after "December". 19 page 28 - delete comma after "December" 20 page 28 - insert "the" after "without" 27 page 28 - delete comma after "December" 29 page 28 - insert "the" after "on" 11 page 29 - insert comma after "matter" 16 page 29 — delete comma after "imposed" 9 page 30 ~- delete the words "had a ban on it" and substitute the words "was subject to a ban", 9 page 31 —- insert comma after "Bonding" Line11 page 31 - insert semi colon after the words "stay on" Line Line Line 3 page 33 - delete comma after "December" 5 page 33 - insert comma after "Bonding" 6 page 33 - insert comma after "things" fh Pages 33 and 34 - where conversation appears - this should be set out in single spacing Line 3 page 35 - delete comma after "December" Line Line Line Page Line Page Line Line Line Line Line 12 page 35 - delete comma after "December" 6 page 36 - conversation beginning with the words "with 6 to 14 4 to 11 32 page this company"and ending with "Job Committee." should be in single spacing conversation commencing with the words "the purpose would have been....(and ending with the words) There was no other dispute what- soever." should be in single spacing conversation "a huge notice board...subject to being banned." should be in single spacing. insert the words "of 1t" before "is in evidence' 33 page 40 - delete the word "says" and substitute "said" 35 page 37 page 40 - delete comma after "December" 40 - delete comma after "January" 17 page 41 - insert after "(supra)" "at pp. 185~ 186" Line 7 page 45 - insert comma after "purpose Last line page 45 - insert "the" after "and" Line Line Line Line Line Line Line Line 11 page 19 page 26 page 29 page 18 page 20 page 21 page 23 page 4747 insert the words "the respondent" after "opinion" and delete the word "Mr." delete the word "Mr." and substitute the words "the respondent" delete the word "Mr." before the words "Bonding" and "Adsett" and insert the words "the respondents" after the word "that" delete the word "not" and substitute "no" delete the word "pages" and substitute "pp." delete the word "page" and substitute "p." and insert "WJ." after "Dixon". delete the word "pages" and substitute "pp." delete the word "pages" and substitute "pp." Line 31 page 47 - delete "safter" and substitute "safer". Line 25 page 48 - delete the word "page" and substitute "p." Line 25 page 49 - delete comma after "December" Line16 page 52 - delete the word "Mr." and substitute "and the" Line 17 page 52 - insert "respondents" before "Bonding" and delete the word "Mr." before "Adsett" Line 1 page 53 - delete "pages" and "page" and substitute "pp." and "p." respectively. Pe -5- Line 20 page 55 -— delete comma after "December" Line 23 page 55 - delete comma after "December" Line 11 page 56 - insert comma after "motive" Line 25 page 56 - delete "pages" and insert "pp." Line 11 page 57 - delete "page" and insert "p." Line 40 page 57 ~ delete "pages" and insert "pp." Line 42 page 57 ~ delete "comminings" and insert "communings" Line 32 page 58 - delete the word "Mr." prior to "Bonding" and "Adsett" Line 14 page 59 - delete the word "re" after "may" and insert n be t Line 26 page 59 - delete the words "Mr." before "Bonding" and "Adsett" Line 6 Page 60 - insert "the respondent" after the word "and" and delete the word "Mr." prior to "Adsett". Line 8 Page 60 - insert "the respomient" after the word "and" and delete the word "Mr." prior to "Bonding" Line 4 Page 61 - insert comma after "hand". Line 26 page 61 - delete the words "the evidence is that" Line 20 page 63 - delete the word "Mr." and substitute "the respondent". Line 23 page 63 - delete the word "Mr." prior to the word "Bonding" and substitute after the word "consequence" the words "the respondent". Line 26 page 63 ~- delete the word "Mr." and substitute prior to the word "Bonding" the words "the respondent. Line 27 page 63 - delete comma after "December". Line 30 page 64 - delete "were" and substitute "was". Line 25 page 65 - delete the word "Mr." prior to "Bonding" and "Adsett" and substitute the words "the respondents after "that". Line 13 page 67 - delete "which" after "Court" and substitute the words "and those which" after the word "Court" (should read "whether the facts before this Court and those which may come before the' Line 13 page 68 - delete "where" and substitute "in which" before the word "His" Line 17 page 68 - insert semi colon after the word "different" /6 Last Line page 68 ~ delete comma after "December". Line Line Line Line Line 7 page 69 - insert semi colon after "union" and commence paragraph beginning with the word "As" immediately after the word "unzron" (i. e. "union; 22 page 69 - delete the word "Mr." as the orders..." and substitute "the respondent" prior to "Bonding". 23 page 69 ~ delete the words "it was" 24 page 69 - delete the word "who" 5 page 70 - delete the word "Mr." "Bonding"and "Adsett". prior to the words AMENDMENTS TO REASONS FOR JUDGMENT GIVEN BY MR. JUSTICE LOCKHART ON 5 JANUARY, 1979 IN THE MATTER OF THE TRADE PRACTICES ACT 1974 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION BETWEEN: Page Page Page Page Page Page Page Page Page Page Q NO. 8 of 1978 INDUSTRIAL ENTERPRISES PTY. LID. , TOOWOOMBA Y PTY. LED. , SOUTHERN C MACHINERY (BRISBANE) PIV, UND. and SOUTHERN CROSS DEVE PTY. LTD. and SOUTHERN CROSS DEVELOPMENT Applicants THE repeeaTe STOREMEN ANE PACKERS UNION OF AUSTRALIA ZAPHiR FORRESTER, ADSETT BONDING and con FEDERATED STOREMEN AND PACKERS BRANCH 2 - Line 18 - delete the words "which has been" 3 - Line 14 - add the word "Certain" before the word "goods" 3 - Line 17 - delete the words "have been" 4 - Line 11 - insert the word "goods" before "to New Zealand" 13 - Line 22 -— delete the word "industries" and substitute the word "activities". 18 - Line 14 - delete the word "and" after "months" 20 - Line 8 - insert the word "Queensland" before the word "union". 20 - Line 9 - delete "satisfied" and substitute with the word "prepared" and delete the word "other" 21 - Line 16 - delete the word "after" and substitute with "following". 21 - Line 22 - delete the words "in the history of Toowoomba" 21 - Line 23 - delete the word "Foundry" and insert the words "by Toowoomba Foundry" after the word "required". /? Page Page Last Last Page Page Page Page Page Page Page Page Last Page Page Page Page Page Page Page Page Page Page Page 21 Line 24 - insert the word "that" after "and" - Line 14 paragraph p s paragraph pa, and substitute the word "copied" 2523840 Line 4 - Line 26 - Line 20 - Line 29 - Line 9 - Line 32 - - Line 33 Line 17 - line page 45 47576167 Line 29 - Line 20 - Line 31 - Line 43 - Line 14 - Line 26 - Line 30 - Line 13 - 68Line 13 - ~ delete "particular" - age 24 line 3 - delete the word "copy" and ubstitute the word "exhibit". ge 24 line 4 - delete the word "photostatted" insert "the" after "without" Commence new paragraph with the word "soon", insert "the" after "without" insert "the" after "on" delete the words "had a ban on it" and substitute the words "was subject to a ban". insert the words "of it" before "is in evidence" - delete the word "says" and substitute "said". insert after "(supra)" "at pp. 185-186" - insert "the" after "and" delete the word "not" and substitute "no. insert "J." after "Dixon". delete "safter" and substitute "safer" delete "comminings" and insert "communings" delete the word "re" after "may" and insert "be" delete the words "the evidence is that" delete "were" and substitute "was" delete "which" after "Court" and substitute "and those which" after "Court" (should read "whether the facts before this Court and those which may come before the" delete "where" and substitute "in which" before the word "His" 69 Line 7 - insert semi colon after "union" and commence paragraph beginning with the word "As" immediately after "union" (i.e. "union; as the orders..." 69 Line 23 - delete the words "it was" Page 69 Line 24 - delete the word "who.