ered let ee ne NEE he ba See RE ne OAT OA EE Neatht! ve TN Ber aM aire hanes TS ALIENS gel y nathan AT ne Piva ME ate TASS aT, GE a SEY DAA ee ST oe EX TEMPORE IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG No. 172 of 1981 ) ) GENERAL DIVISION In the matter of The Trade Practices Act 1974. Between: PIONEER CONCRETE (AUSTRALIA) PTY. LTD. (Applicants) And: JOE MARRA & ORS. (Respondents) Coram: Smithers J. 14 October 1981 Melbourne REASONS FOR JUDGMENT In this case I feel satisfied that the case for the applicant has been established. It depends on the following line of reasoning. What the applicants have to establish is that the respondents have engaged in conduct of a particular kind and it has to be conduct that hindered the acquisition of goods by the potential customers of the applicant (Pioneer) from Pioneer. See Section 45D(1) of the Trade Practices Act 1974 (the Act). sane at ete ad erate 6 ata ee ae ped ot re er me era ere arm Re REL, RTS Rene LAO I Ne wk Broadly the situation seems to be that there is a dispute between the Cartage Contractors Association (C.C.A.) and Pioneer and between the former owner/drivers'of Pioneer with Pioneer arising out of a decision by Pioneer to cease to deal with the respondents as owner/drivers and to require them, if they desired continued engagement, to accept engagement as employees. The respondents and the C.C.A., being unwilling to agree to this change of terms of engagement, refused the offer that the respondents be employees and in due course the respondent ceased to have any relationship with Pioneer because Pioneer determined that relationship. The C.C.A. and the respondents did know that the Builders Labourer 10} Federation (B.1.T.) had policy that the ™ members of the B.L.F. would never handle goods which had passed a picket line. C.C.A. had had some doubt as to whether they themselves, that is the C.C.A., would be regarded by the B.L.F. as an organization whose picket lines would be regarded as being within this policy. That was a matter which apparently Mr. David had resolved satisfactorily to the C.C.A. in some conversation with the secretary of the B.L.F. who led him to believe that a picket line for the purposes of this policy of the B.L.F., although the C.C.A. was an organization of people who being owner/drivers were not technically employees. In those circumstances it would seem that the policy was adopted by the C.C.A. and implemented by the respondents that, Ee on ast came ost i ae naman nar tia RE lee, mM Nad CN led Cie ee Tene oe! mene Ce eh at be deme SSs on ie - a cnakaes 2 Teer ERme ARO ISON Seda Se - ill oy with respect to various customers of Pioneer, a picket line would be set up and that the operations of the picket line would involve those in the picket explaining to drivers of Pioneer trucks, carrying concrete on its way to customers, having a conversation with the drivers of those trucks and indicating to them that it was their desire that the concrete should not be delivered to the customer. They would explain to the drivers that they were a picket line and were fighting for their jobs, and on the whole, would carry their picketing no further than that. It seems to me that 1f in response to such a communication from somebody in the picket line the driver of the truck refrained from going to the premises of the customer with the load there would have been an interference with supply. It seems to me that there would also, just as clearly, have been an interference with the acquisition by the customer of the concrete, the subject of that particular load. But by and large that did not happen. By and large the drivers of the trucks went on to the premises of the customers, were there willing to deliver the concrete to the customers, but the customer was unable to take delivery because his servants, and the only servants available to him for that purpose, were members of the B.L.F., who, 1n accordance with the policy mentioned, would simply not handle the concrete at all - and so the customer was deprived of it. If one looks, in that scenario, for conduct that hindered the acquisition of the goods rather than the supply, and if one concentrates one's attention on the physical act oe ipen atts, . ; ae NU nnn od teks mach Nnk tO RDA nly Ata aN Lah Net RE Ek RRL nt te LIN) nema nn Nana mses tna om Re Tet (eh . chit thie Hei hohinied ee Rote ai DernelAbGS. a AaB us eomaiabseraens or acts relative to the giving of delivery and the receiving of the goods, the giving of delivery to and the receiving of the goods by the customer, I find difficulty in seeing that the conduct of the respondents, so described was conduct of the kind referred to in the section, namely conduct that hindered the acquisition of the goods by the customer. The B.L.F., were not, it seems to me, acting in concert with the C.C.A. The B.L.F. in taking the action that it took took it by reason of its own policy, apparently a fairly firm policy, that its members do not handle goods which have passed a picket line. The fact that the respondents knew that the B.L.F. members would probably act in accordance with that policy does not seem to me to make the B.L.F. action action in concert with the action of the respondents. Therefore, if hindering the acquisition of goods by the customers from the Pioneer Company referred only to those physical acts in the performance of contracts between the customers and Pioneer, I would have thought that the interference with acquisition was brought about by conduct of the B.L.F. But it is my opinion that the provisions of section 45D are wider than this. If one refers to the definition of "acquire" in section 4, sub-section 1 of the Act and to what is an expansion of that definition in section 4C, sub-section (b) of the Act, it seems to me that when one talks about hindering the acquisition of goods by customers from entrepreneurs, what is being talked about is not only the performance of contracts ee ener mete ACRE ARERR AMIR me Ay Nm ome "~ which have been entered into, but extends to the entering into of contracts. If the entering into of contracts is hindered or prevented and the contracts which are so hindered and prevented are contracts which would relate to the acquiring by the customers of goods from, in this instance, Pioneer, then if one finds _ conduct which has prevented those contracts being entered into, that is conduct which hinders and prevents the acquisition of goods. The plain fact.is that at the end of the month or thereabouts during which all this conduct has been going on, the evidence does disclose that there are potential customers who desired to acquire concrete from Pioneer but who did not say so, who did not therefore acquire concrete which they would otherwise in the ordinary course of events have acquired through placing orders in the ordinary course of business. The question is whether it was conduct of the respondents which caused the situation which caused potential customers to refrain from ordering the goods and acquiring them in that sense. In connection with this problem it seems to me the situation 1s different from when one is considering the conduct relative to the actual physical acts which were concernec in the delivery and receipt of the goods pursuant to contracts which had already been made. In this case other facts become relevant, namely that by reason of what occurred it was obvious to customers that if they pecker NO weR e+ Ce ee ee na ES Ae RT NR I am meme ordered concrete they would not receive it. Their failure to order was therefore a direct consequence of their realisation of that undoubted fact. What was the cause of that undoubted fact? Here it is not a question of finding someone who acted in concert; here the question seems to be one purely of causation. When one is looking to the cause of the inability of anybody, and these customers in particular, to acquire concrete from Pioneer, it does not matter whether the B.L.F. were in concert with the C.C.A. or the respondents or not. The attit- ude of the B.L.F. was just one of the facts of life, a very important element in the total commercial circumstances which appertained to contracts for the acquisition of concrete. I think the situation is that if one is looking for the cause of the inability of anybcdy, and these customers to acquire concrets, and to refrain from ordering it, one starts with the creation by the C.C.A. of the picket line and, of course, the respondent's co-operation in the operation of the picket line. That was an act which was performed in the knowledge as to what this consequence would be. I do not think that that particular fact 1s vital. It is not that they knew it would occur but that it did occur and looked at objectively it was the natural and probable consequence of the setting up of the picket oine. Everything else flowed from that. Accordingly, once one takes the view that this section should be read in the broader way to which I have referred then it does not matter that the actual acquisition of the goods which were in fact proferred for delivery were not acquired because it was the B.L.F. action not ce Rent im SONNE GARE EEO ONES TE mre Roemer YOY reemannte reineimeR mm imme merece me 4ey a way w mmm Se NS -- - % to take delivery of them. What is important is that that action was the natural and probable consequence of the action of the C.C.A. and the respondents and led to the whole situation which created in this particular commercial area to be described as one in which it was impossible to do business with Pioneer by way of ordering goods because such a contract could not be carried out. The consequence of that was that various customers did not order goods, therefore did not acquire goods that they would otherwise have acquired, and that was the direct result of the picket line, direct, not immediate but direct nevertheless, operating on the various elements of the commercial situation which existed. Accordingly it seems to me that the situation does arise in which an injunction should go. I should mention the contention that, by reason of the form of the contract under which the respondents had previously been owner-drivers, there was a relationship of master and servant and not of principal and independent contractor between Pioneer and the respondents. That possibility was floated in this case, but it is now conceded, and I have no doubt rightly conceded, that the suggestion that the respondents were employees when they were owner-drivers under their previous contracc cannot be supported. ' The evidence as to the attitude of customers and as to the decision of customers not ot order goods arising out of the difficulties which faced customers in relation to delivery is supported in some respects by evidence, some of which is hearsay. Had there been any real question as to the validity Segre ee ee RET EEE I TY APOE Se Ia ae piper ee Wer Meret tee oF ian te vametats ak AOE a we Pe eS ee ER eee ere Ce le ME Se ee RA OLS ak oT and truthfulness of the statements which are made in the hearsay evidence it would have been necessary to have given the opportunity to have that evidence made direct rather than by remain in hearsay form. Again, however, cousel for the respondents, taking a very sensible view of the matter, has not objected to the hearsay evidence. This is one of those cases where there can be no real doubt as to the validity and effectiveness of what is said by hearsay. Accordingly I have taken into account both the hearsay and the direct evidence of the reason why customers failed during the month of September and no doubt are still refraining, as to why they did refrain from ordering concrete from Pioneer according te their usual custom. In those circumstances it seems to me that an injunction should issue. Respondents will pay the costs of the proceedings including the proceedings for interlocutory relief. Pa neers nergy ne RO eS emer ei eee TR RES TS ter ae dine creer nen emerpemne res seem ems IT