| CATCHWORDS Trade practices ~ secondary boycott - application for interlocutory injunction - no appearances by respondents - injunction against personal respondents and federal organisation - Trade Practices Act 1974, s.45D. CAMPBELLTOWN CATHOLIC CLUB LIMITED v. THE FEDERATED LIQUOR & ALLIED INDUSTRIES EMPLOYEES' UNION OF AUSTRALIA & ors. G. 21 of 1980 SHEPPARD J. Sydney 4th March, 1980 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 21 of 1980 GENERAL DIVISION DATE OF ORDER: WHERE MADE: JUDGE MAKING ORDER: For orders see p.8. IN THE MATTER of the Trade Practices Ket, 1574 CAMPEBELLTOWN CATHOLIC CLUB LIVITED Applicent THE FEDERATED LIQUCR & ALLIED WWWotRLBo BAPLCYERS' UnlOl CF AUSTRALI CHARLES CREAN WILLIAM FERRELL GLADYS ROSEMARIE ANN ENDCCTT KENNETH REGINALD JEFFRLUY MAXseLL CALLAGHAN PETER ABUALLAN Respondents 4th March, 1980 Sydney Sheppard, J. IN THE FEDEREL COURT OF AUSTRALIA } NEw SOUTH WALES DISTRICT REGISTRY No. G. 21 of 1980 GENERAL DIVISION IN THE MATTER of the Trade Practices Act, 1o74 CAMPBELLTOWN Ca»THOLIC CLUB LIMITED Applicant THE FEDERATED LIGUOR & ALLIED INDUSTRI, EMPLOYEES!' UNION OF AUSTRALIA THE FEDERATED LIQUOR & ALLIED TNDUSTRIES EMPLOYEES' Ur lON OF AUSTRALIA, NeW SOUTH wsLES BRANCH CHARLES CREAN WILLIAM FARRELL GLADYS ROSEMARIE 4NN SNDCOTT oN H Ri A UBEFREY MAXWELL CALLAGHAN PETER ABDALLAH Respondents 4th March, 1980 SHEPPARD, J. JUDGMENT This is an application for an interlocutory injunction, It is made in proceedings brought pursuant to s.45D pf the Trade Practices Act 1974 by the Campbelltown Catholic Club Limited. The respondents to the proceedings are the Federated Liquor and Allied Industries Employees! Union of Australia, the Federated Liquor and Allied Industries Employees' Union of Australia, New South Wales Branch, Charles Crean, William Farrell, Gladys Rosemarie Ann Endcott, Kenneth Reginald Jeffery, Maxwell Callaghan and Peter Abdallah. Miss Endcott and Mr. Jeffery are, apparently, trustees of union funds, whether of the federal organisation or the New South Wales brancn, I am not sure. Messrs. Crean and Farrell are employed at the Kent Brewery conducted by Tooth & Co. Limited and the remaining respondents are employees of Tooheys Limited. Messrs. Crean and Farrell are also, so the evidence discloses, delegates of the union - using that expression neutrally end not distinguishing between the federal organisation and the New South Wales branch. None of the respondents has appeared en? the application has proceeded ex parte. Because of some comnents I have seen in the press, I should perhaps make it clear thet there was no obligation on any of the respondents to appear, Notace of the proceedings was given the respondents to enable them to appear if they wished. They, like defendents zn any other civil proceeding, whether brought in this or in other courts, may stay away if they choose. That is their right. Some might say that was an unwise course for any defendant to take, but that is not a matter upon which I express an opinion. All I say is that by reason of the absence of the respondents, no evidence has been led on their behalf and no submissions made in support of their cases, I have only the applicant's evidence and submissions. I should make it clear that whilst the respondcents to this application are entitled to stay awey if they wish, there ere other types of process issued by courts - I instance subpoenas - where, if process is properly served, a person is obliged to attend. This is not a proceeding of that kind. The evidence, which I accept, 1s that there was recently a strike by members, either of the federal organisation or its 2e state branch, who were employed in various clubs in this state. The applicant club had employees who were members, apparently, of either the federal organisation or the state branch, They did not go on strike, or at least some of them did not, but worked during the period of the strike. It was decided either by the federal organisation or by the New South Wales branch to attempt to ban deliveries of beer to clubs, including the applicant here, whose employees had worked during the strike. Beer earmarked for delivery to the club by Tooth & Co. Limited was not loaded, not because the driver engaged by the brewery to load it refused it, but because he was told on each occasion either by Mr. Crean or Mr. Farrell that if he did, he would not get another load from the brewery. In drawing those conclusions, I have not entered upon a discussion of the evidence because I do not consider it necessary to do so. There being no appearance for the respondents, there was no evidence to the contrary. I have, to a degree, relied on inferences I have drawn from the evidence. Such inferences were clearly open. Evidence was given by Mr. Imrie, who is the maneger of the applicant, that the consequences of the ban have been, up to date, that the club has been forced to obtain supplies of beer from other sources, putting the club to greater expense. That expense has arisen because of extra wages involved end the hire of vehicles to transport the liquor. These extra expenses have been incurred over the last fortnight end to the date Mr. Imrie gave his evidence which was 28th February last, 3. they amounted to $600, He said that if the ban continued there was no way of alleviating the expenses so that they would continue to mount up. He also expressed concern that alternative sources of supply might cease to be available to the club in what he termed the very near future. He defined "the very near future" as the early stages of this week. If that occurred the club's business would be very seriously affected, Section 45D(1) of the Trade Practices Act so far as 1t is relevant provides that, subject to the section, a person shall not, in concert with another person, engege in conduct that hinders or prevents the supply of goods or services by a third person to a corporation where the conduct is engaged in for the purpose, and would have or be 11kely to have the effect, of causing substantial loss or camage to the business of the corporation. In my opinion, the evidence which I have accepted shows that Mr. Crean and Mr. Farrell are themselves in breach of the terms of s.45D(1) of the Act. Their conduct, which has been engaged in in concert with one another, has prevented the supply of goods to a corporation, namely, the applicant club. The inference is open that the conduct was engaged in for the purpose of causing substantial loss or damage to the club. I am satisfied I should draw that inference. The loss so far suffered by the club has not been substantial comparatively speaking. By this time, upon the basis of Mr. Imrie''s evidence, it 1s probably of the order of $1,000, but the loss is continuing and it is not unlikely, again on the basis of his evidence, that the club's present sources of supply will be cut altogether with the result that the club in the immediate future will face very severe loss. This is an interlocutory application. It ais not a final hearing. I am satisfied that it is appropriete to grant interlocutory relief. If the evidence were left as it is, it is my view that the applicant would probably succeed in obtaining final relief. The balance of convenience is such that an ingunction should be grented. That deals with the position so far as the two personal respondents against whom relief is sought, Messrs. Crean and Farrell, are concerned. As earlier mentioned, relief 1s alse sought against the federal organisation, Reliance 1s placed upon s.45D (5) and (6) for this purpose. The first of those subsections provides: "If two or more persons (in this sub-section referred to as the 'participants') each of whom is a member or officer of the same organization of employees (being an organization that exists or is canmried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct ain concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that concuct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization estatlishes that it took all reasonable steps to prevent the participants from engaging 1n that conduct." Sub-section (6), so far as it is relevant, provides that where an organisation of employees engages, or is deemed by sub- De section (5) to engage in conduct in concert with members or officers of the organisation in contravention of sub- section (1), any loss or damage sustained by a person as a result of the conduct shall be deemed to have been caused by the conduct of the organisation. Messrs. Crean and Farrell are plainly participants for the purposes of section 45D(5). There 1s a question es to whether they are members of the federal organisation, 4s I have mentioned, there is a New South Wales branch of the union, using that expression neutrally. Such a branch 1s registered under the provisions of the Trade Union Act, 1661, of the State of New South Wales. It is possible that that organisation is separate and distinct from the federal organis- ation - compare Moore v. Doyle 15 F.L.R. 59. On the other hand, the branch may simply be part of the federal organisation itself, In Williams v. Hursey 103 C.L.R.30, Fullagar J. said (pp.54-5): "Tt (the branch) has no separate identity - no existence apart from the registered orgenization, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation." In the way that the evidence has been led, it is open to me to infer that Messrs. Crean and Farrell were members of the federal organisation, even though they may also have been members of the New South Wales branch, assuring, without deciding, that it is an entity, separate from the New South Wales branche I have decided that I should draw that unference, and I do so. The provisions of sub-sections (5) end (6) of s.45D are such as to deem the conduct of Messrs, Crean and Farrell the conduct of the federal organisation. It should also therefore be the subgect of an injunction, Accordingly I propose 1n a moment to make orders to give effect to the decision at which I have arrived. Before I do so, I wish to deal with two matters. Altnough the order I am about to make will oblige the tederal organis- ation and Messrs. Crean and Farrell not to prevent the supply of liquor to the applicant clut, it will be a metter for the club to decide whether it proposes to take steps tc seek the enforcement of the order, if it be disobeyec. The order is no different in effect from countless others that are made each week in the civil courts in this country. It will not be enforced by the court of its own motion. It will only be if and when an application is made to it by the club, supported by evidence of disobedience, that the court will consider whether it should take steps to enforce its orcer. I repeat, there is nothing exceptional about that circumstance; itis the same in every civil case, whether heard in this ccurt or in the Supreme Courts of the States and Territories, The other matter to which I wish to meke reference 1s that these proceedings are civil proceedings, They are not penal or criminal in their nature, It is not sought to recover any fine, What the applicant seeks to do is to prevent a situation arising where its business will be so badly affected that it will suffer serious and irreparable loss, and to recover losses that have already been incurred. (Discussion ensued between his Honour and counsel as to the form of the order to te made), HIS HONOUR: I make orders as asked in paragraphs l(a) to (f) of the notice of motion, but as against the first, third and fourth respondents alone, and omitting from each of the orders the words, "or Tooheys Limited", I order the first, third end fourth respondents to pay the applicant's costs of the applicaticn for interlocutory relief. The proceedings are stood over for directions to 27th March next at 9.30 a.m. I give liberty to any party to restore the proceedings to the list on one day's notice to the others. I give liberty to the applicant to apply for such further inter- locutory relief as it may be advised. (Later,in chambers, his Honour noted that the applicant by its counsel, gave the usual undertaking as to damages). vaat this and the preceding * eoreedy ages are a true copy of the reaso , f{ The Honouravle judgment herein © Lath Ice Sheppard. aa Mr Just A&socl<!s