—D Vind 'es ™ oNuy HK ™ JUDGMENT No. ZL neal Ol. ATCEWORDS Trade Practices - Secormary boycott - conduct of participant memkers of "organization cf employees" deemed conduct of organization - whether "organization of employees" registered under Industrial Arbitration Act (i1.S.W.) 1940 a "body corporate" within the meaning of s.45D(6) of Trade Practices Act 1974 (Commonvealth) - Interscgatories directed to participant members —- ambit of raght to refuse to answer interrogatories on the ground of incrimination or cf exposing such memsexrs to risk of percuniary penalty - oppressive interrogatories. Trade Practices Pet 1974, sub-ss.45D(1),(5), (6)(>), 6(c)(21) to (v), s.76, s.77, 8.73, s.80 and s.82. Federal Court Rules 0.16 ©.i, 2 an LIMITED -v- Hk TRANSPORT WORKERS UY TON OF AUSTRALIA 27 WORKERS UNI OF AUSTRALIA NRW SOUTH WALTS BRANCH NCLESMN and Dav=D ARTEUR_MCNALLY 23 January 1931 we "in CREMRAL COURT OF AUSTRALIA GrunPaL DIVTSION ) ) ) No G 61 of 1980 ) No G 70 of 1980 ) ) RPV SCUTE WSLoS DISTRICT IN THE MATTER OF TH aAcT 1974 ty TRADE PRECTICFS RETWEEN: NAVAIR PTY LINITED Applicant TRANSPORT WORKERS UNION OF AUSTRALIS TRANSPORT WORKERS UNION OF AUSTRALIA SOUTH WALES BRANCE Respondents ORDOIR JUDGr '"-KING ORDER: EVATT J. DATI OF ORDIR: 235 JANUARY 1231 iPRE MaDO: SYDNEY THE COURT GCRDERS THAT: The Notice of Motion herein dated 3 December 19380 be dismissed with costs. 7 7 UP PAL COURT OF AUSTRALIA CUM? ASL DIVISTON No G 61 of 1980 No G 70 of 1980 'Ch, CUT ALES DISTRICT JN THE MATTER OF THE TRADE PRACTICES ACT 1974 BETWEEN NAVAIR PTY LIMITED Applicant AND THE TRANSPORT WORKERS UNION OF AUSTRALIA THE TRANSPORT WORKERS UNION OF AUSTRALIA NEW SOUTH VALES BRANCH JOHN BARRY MCLEAN DAVID ARTHUR MUCNALLY Respondents el ocnnary 1961 EVATT J. REASONS FOR JUDGMINT Ly application friled 4 August 1980 and numbered G61 af .lt0 '"avair Pty. Limited a company incorporated under the Cotrenies f#et (New South Wales) 196] sought certain orders rurseant to s.€0 of the Trade Pratices Act 1974 (the Act), reeiecgre ss an interim Injunction, against Five respondents, .ely "rausrnort workers' Union of Australia (the Federal Sree sation), Transport Workers' Union of Australia New South vale> Trarcn (the State Union), John Barry McLean, David ren r "terally and George Henry McKay. The applicant also sought damages against the five respondents pursuant to s.62 of the Act. It is common ground that the first respondent 1s an erganizaticon of employees registered under the Concil-atitcn ara Arbitration Act 1904; that the second respondent is an undustrial union registered under the prcvisions of the New South Wales Industrial Arbitration Act 1940: that the third respohcent 1s a member of and an organizer employec by the second resnondent and that the fourth respondent ius also a member of the second respondent who was in July 1980 an employee of Mobil O11 Australia Limited (Mobzl O11) a company wncorporated under the Companies Act of Victoria. Such applicatiom came on for direct1iens hearing ané fox hearina of an apolication under s.8°(2) of the Act for wnter.ua injunction before Frank. J. on 14 and i5 August 19380. It was then ordered that the matter proceed bv way of pleadings, directions being made in resvect of a time-taple for such pleadings and the administering of interrogatories and the arsworing thereor in accordance with 0.16 of the rederal Covrt Rules. Subsequently, the hearing of the matter was fixed for 16 February 1981. Gn 15 August 19°00 Frank? 3, having refused to maxe any erder for interim injunctton against the first and fifth resconderts made (inter alwa) the followtire orcer:- "The second respondent, Transport Workers' Inton of Australia New South Wales Branch, by 1tsel£, wts servants and agents, the third respondent John Barry McLean ard the fourth resnondent David Arthur McNally be each estrained until the determination of the ceedings un No.G6l of 1980 or further order om engaging 3n conduct in contravention of s.H5D of the Trade Practices Act 1974 tun concert with any person that hinders or prevents the supply of aviation gasolene or other petroleum preduct by tNebi] O11 Australva Limited to any driver of a tanker vehicle of Navatic Pty. Limited who is not un breach of tne Transport Industry Petroleum etc. Distribution (State) Award of 18 April 1980, where such conduct 3s engaged ain for the purpose and has or would be likely to have the erfect of causing substantial loss or damage fo the business of the Applicant." moo HONS 1S re fu sons for oral judgment Frank. J. stated:- "T consider that this 1s a matter in which T refor ta give oral judgment rather than to elay to express my reasons, perhaps ore fully, in a reserved judgment. This us ac apoiivcation under section 80 of the Trade Practices Act 1974 for an wunterlocutory insunction to restrain conduct said to be in contravention of section +5D of the Act. The erpplication wus brought by Wevair Pty. Limited, company which opérates approximately 30 rt from Bankstown Aaurport. The aircraft are used for flight training, air charter services and commuter airline operations. Tne first respondent is the Transport workers Unrien of Australia. IT am not satisfied that there ais evidence of any sign yr tcarce against the first reesnondent. second respondent 1s the Transport ers Union of Australia New South Wales anc>, and at ws admitted that it %ws an *mluscrial union registered under the yens of the [Industrial Arbitration Act , New South Wales. The third respon@ent is John Barry Leen, a unton organizer employed by the cond respondent. The fourth resrondent 1s CPavidé Arthur tv, an employee of Mobil O11 Australia 21, "hich I will call Mobil O01], which 'tos a depot at Bankstown situated within 'rport perimeter. It 1s admitted that he moer of the second respondent. She fifth respondent 1s George Henry re Out there 1s no evidence against him. Tre applicane refuels arreraft at '™-steuwn Alvrport utilising a mobile fuel merry wehicle. Prior to a time towards the oL tlay 1980, the tanker had beeen driven ef «hom was a non unionist. -.O comployees of the applicant, at least <£ .as the practice to drive the tanker alreraft and refuel then fron r "eo tfoo1rl O11 depot in the airport where 1t x , either by an employee of Mobil O11 re Qriver of the vehicle. It was then ctice to drive the tanker to the the on 18 April 1980 an award was made under a -clause (1) of that award provides: rence of employment to members ar ci the Transport Workers' Union of "australia NEW Branch shall be in fo llowing terms: fa) In tre employment of persons , un employer no divscruaination nall be evercised against members vi tne unton. 's) where a worker other than a » cor of the union 13 engaged, wich worker shall within J+ davs acter cormencing work make ynplicatron for membership of tne union and v= accepted shall conplete such application. 'c) Werkers at present amployed snall within li days from the date on which this award takes effect make for membership of tke ard wf accepted shell cecntrlete arcplication. » South Wales Industrial Arbitraticn Act "Transport Industry - Petroleum Distribution (State) Award". Clause {d) Any person who has made ~onlicatton for membership of the tnion un accordance with this clause, and whose application 1s rejected, and uny person expelled from membership, shall be deemed to be a member of the union for the purpose of this award, exc&pt a person struck off tne register for arrears of dues." whilst wt 1S necessary to express some "1.5 upon the evidence ut must be remembered aerc Iam only forming such views as are "reropriate for interlocutory proceed'ngs, and erat rothing I say ius to be regarded as a ~onclasive findin relevant to the erermination of the application for a -ercanent injunction when that application ce-ms en for hearing, or relevant to any other sreeendings which are or may be before any .w rt or tribunal. faa = ould appear the principal task of the r of the tanker, for example, before 7 + 1980 - one vas a Mr Namroud - was to te tne tanker for the purpose of cueruelling aircraft, and this would appear to s stthin the definition of "aerodrome teorsant"" un clause 2 of the award. I reiterate I am making no finding to effect, and point out that there 1s no ''> vwrce before me as to the scope of the " rhlers Etcetera (State) Conciliation . .m1ttee, and it seens that the award only -°25 to employees referred to in clause 1 'rat award. I am simply sayzng that on the ' rval before me 1t appears likely that the yr of this tanker, at least in the past, ~ meen wtthin that classification of ~ crrcee attendant. sinee about 23 May 1980 attendants »toved by iobil O11 have refused to allow aan mplicant's tanker vehicle to be filled rn" "cel at the depot. On about 30 May 1980 .'* respondent, Mr McLean, addressed a meeting of ircraft operators, saying in sudostance mee there was a dispute because the '-, .snort Workers Unton wanted the award e.ocrced, and that the award was the law of -- » land and that anybody who refucls . craft must be a rember of the Transport yf workers Union. Mr McLean also produced on that occasion a cony of the award. There was some question 'nether tir McLean used the word "dispute" or instead, the word "ban". On 21 July 196C6 the fourth respondent, Mr McNally, telephoned the Managing director of the applicant, Mr Hazelton, ard complained that the 'applicant's tanker was being refuelled at night, and said that wf this was seen to happen again "we will turn off the power for the key-lock system and te owtll mean that nobody can use _ the key-locks". Tt seems that after normal working hours there was a bowser where fuel could be epteined, but that bowser was locked and that the applicent had in its possession a key to the bowser. Cn 25 duly 1980 the fourth respondent refused to f71ll thre tanker when driven to the MNopil Oil depez by Mr Hazelton after the fourtn respondent had asked him - that is, Mr Hazelton - whether he rad a union badge and he had said that he had not. Pn application was made to me in Chambers on 30 July 1980 to grant an ex parte injJunetion, but I refused to do this, and this applicatton that 1s before me nov was f1led on + August 1980 and served on the second resnponcent on 5S August 198C. The third respondent said in evidence that since 1969 the otl section of the Trarsnort Workers Unicn has been in dispute with iobil Ol Australia Limiced on many eccasions over the issue of manning at Bankstown airport. He also sa'd@ that in early April] 1986, before the award which TI had mentrored came into force, there were Aiscussions betveen h71 and others and Mobil Gil concerning issues of safety, manning and the use of non-unton Lacour. Io am not impressed with the relevance of those aspects or the proceedings pow before me. It seens prior to 5 August 1980 the applicant had been able tc fuel its atrerafe at Bankstown by texi-ing the aircraft to the bo.ser at the fobil CGepot put tnat union achion prevented this stnce about 5 Argust Hoy WwW c a l 1980 and that this unton actton applicd not only to the applicant but also to the Royal Pero Club of Mew South Wales which habitually ed its own tanker to refuel its planes at s he Airport. I make reference to some allegations corcerning the way in which members of the fazelton family performed work but I am not impressed with the relevance of that material im these proceedings. I consider if I recard Ir McNally as the first person, Mr "clean, or the second resvoncent, as the secend person, Mobil O11 Australia Limited as the third person and the applicant as the fcurth person within the words of section 45D, ard I think tt 1S appropriete so to dc, then there has been conduct between the first person, Mr Mclean and the second person, either Mr McNally or the secend resvcondent wnich, so far as 1s necessary for the proof of @ prima facie case, should be regarded as heaving been engaged an for the purrose and as boeing such as would have or be likely to have tre effect of causing susstantial loss or cdomace to tre business of the arplicant. I mm mind section 45D (5) iw relation to the secend respondent. It was submiited on behalf of the resnondent that any relevant conduct fell Virin the defence provided by section 45D(3). Owever, without @Gealing with this section jin 33e Getatl an relation to the particular of this case, 1t seems to me clear that lecxing at the macter as I should loox at wt "m regard to the establishnent of a prima facve case, the cominant purpose for the conduct encagec in was for the purpose of rsuring that persons who drive the relevant ser were members of the secord resvcondent. t seems to me as far as is relevant for etermination oF whether a prima facie case sists that the applicant has succeeded." "1s Honour then considered the uest Q nee of conveniterce during which he observed IT cons'uer that a criticai question in this case 1s that arising from examinarion of clause 40 of thse award to whier I have referred and [ think thts 1S a very urportant ciwo8)n of the '' l) bt1sn ium relation to the exercise of the ort 's Giscretion. eetts to me that 15 a matter that J have to > varefully in mind. I censider that the -* t sneuld preceed on the basis that the ~~.» 18 validly made although, as I have '., 1tS$ score 18 by no means clear on the ' «rea barcore me." vn 21 August 1980 a Statement of Claim against th oO ix respondents tn G 61 of 1980 'vas filed by the erybrourgt. Such statement of claim was numbered G 70 cf Loeb. s+ereafter documents filed itn the matter have been srroere a G 7O of 1980. On 8 December 1980 the Court ordered ok) . of 1980 and G 70 of 1980 be consolidated, 1t being an . - the applicant was mot proceecing against Mr tievav, "I .2 yvospcendent in matter No. G 61 of 1980. "1 lL September 1980 the four respondents filed their mroees gic denied (inter alia) that the third and fourth 3 were mempers of the first respondent; that the ry om +t ¢ committed the breaches of s.45D of the Act alleced rs '>' statement of Claim and further said, pursuant to ree ' 2 the Act, in ansver to the whole of the claam, that cst aun which the resvoncents may be found to have . . oo. ould othervise amount to a ccntraventito1r of ero. .F te Not was for a dorinart purpose substantially nn oa ->? the remvuneratyon, conditions of employment or sets anditiers of Mr "IcNMally or those of his and his tn 7 November 1980 the applicant, purportedly "orsuent to 0.16 r.1, filed and served a notice on the second, tr? ard fourth respondents requiring those respondents to "ser cpeclfred interrogatories, totalling in all 37. Interrogatory numbered 37 was the only Jnterrogatory wirected to the second respondent, the State Union. Interrogatories numbered 1 to 21 anclusive were directo. to Mr McNally whilst wunterrogatcries numbered 21 to 30 I-clusive were directed to Mr McLean. As both Mr McLean oo. 'xr "eNally objected to answering most of such , torvoeetories on various grounds, the appjJicant on 3 ue ther 1980 frled a notice of motion seeking orders that the Str ma Fourt respondents be directed to answer their regrecct.2 unanswered anterrogatories. This procedure was cerciy taken under ©C.16 r.5 of the Rules of Court. fuch motion care on for hearing on 8 and 9 December aren) cn leave was granted to the two respondents to file faurtcor serified statements in answer to interrogatories 2477. 4 oe Gate earlier set by the Court for so doing. On 9 © 4+ °930 the Court adjourned the hearing of the motion to a 'compar 1980 to enable additional grounds of cbjecticn to iceyerr ud? certain wunterrogatorives which hac been argued to be 'ricco «d oy the respondents. Such verification having been '. . .v 17 December 1930, the Court then ordered that the - 10 - notice of motion be dismissed with costs, indrcating that reasons for judgment could not then be given owing to the Court's commitments aiunterstate but that 1t was then artictpated that such reasons would be published towards the ena of the Court vacation some three or four weeks before 16 February 198], the date set for the hearing of the substantive a Matrer. Such reasons for judgment are now published. It ws emphasised that no wunterrogatory has been directed to the first respondent, the Federal Organization. Trat respondent clearly acquired a corporate character upon reaistration under the provisions of the Conciliation and Arbutratior Let 1904 (see ss.126 and 146, Jumbarna Case (1908) 6 C.L.R. 309 and Willtam -v- Hursey (1959) 103 C.L.R. 30 @ 52). As stated, the State Union has been asked only the ore iunterregatory. Such interrogatory has been answered and verified by one, Edvard C McBeatiy, the Secretary of the Union. That unterrogatory and answers are as follows:- 37\. Look at the letter Gated 7 Novenkber 1980 1330 written by the Secretary Treasur to the Industrial Registrar and say {a) Did the seccnd respondent authorise the respondent McLean to address the meeting reforread to ain that letter? (bd) If no, @id the respondent McLean address this meeting during the course of his employment as an organizer of the second resrondent. \pswers (a) Yes er (b) not applicable_ Despxrte the length of the other 36 interrogatories it ls recessary, iw my view, to set them out iwn full together with the ansvers to those to which Mr McNally or Mr McLean did rot ooject. Cach interregatory 1s numbered with the letter "2." whilst the answer thereto as verified bears the corresponding numser with the letter "B" or "B(1) and B(1i)". Interrocatories asked of Mr McNally 1A, Qn or about the 21 July 1980, were you employed by MOBIL OIL AUSTRALIA LIMITED at 1ts depot at Bankstown Airport? Yes. If ves, in what capacity were you so enployed? Refueller. Cid part of your duties include reftvelling the tanker venicle of the Applicant when required? . Yes. On or about the 21 July 1980, ard you telephone the Managing Director of the Applicant, Mr J.P.B. Hazleton? 'QR. Yes. *. If so, for what purpose did you telephone him? (objected to) If so did you say to him these words ocr words having a similar effect: "You have been seen to fill your tanker truck from the key-lock system after the depot has closed. If this is seen to happen again, we will turn off the power for the key-lock system so that nobody can use 1t."?(ebjected to) rere you between 21 July 1980 and 10 Septerber 1980, a member of the Transport Workers Union of Australia, Lew Souch Wales? 7', Yes. -\, Were you petween the same dates a ~omoer of Lhe Transport workers Union oF Australia? Nh oF anes we td tw td . es) cd fan) cy ). ey 21 July 1980 were you requested by 'yr J.B.D. MNazleton to refuel or permit "o be re-fuelled, the petrol tanker enicle of the Applicant? 'ag, Aid you re-fuel such vehicle? I. 70, for what reason did you not ~sluel it? (objected to) Lf you did not refuel ut had you reaviously discussed your decision 'tu to refuel it with any other rson? (objected tc) -f£ ves, with whom did you discuss your 1gs10n not to refuel? not applicable )} 12 applicable, (objected tc) .7r wnat purpose did you refuse to ,9 said venicle? (objected to) * you intend, by your refusal to .-luel the said vehicle to co-erce(sic) 2 "enlicanz into engaging members . tre Second Respondent to drive said vehicle? (objected to) -o, what was your purpose in so ot applicable 1f applicable, (objected to) ras to gquestion J4(sic), did you ™ order to achieve your purpose, ' . use damage to the business of the cant? . 2 not applicable 17) 12 applicaole, (objected to) eo to question 17, how did you intend schieve your purrose? 1 not applicable ' 4) VE applicable, (cbyected to) 'ou *new the Respondent McLean? - Of) vital a ty ao vou know him? the Trarstort Workers mage EF Australia (New South Wales , or prior to 21 July 1980, did you 1th the Respondent McLean that zs. would refuse to refuel the tanker mnicle of the Anplicant?(cbyected to) - 13 - address a meeting of aircraft operators at the Royal Aero Club, Bankstown Alrport? 22B Yes. 234 If yes, did you inform people there present that a "ban" would be applied to the refuelling of tanker vehicles at Bankstown Airport when such vehicles were being driven by non-members of the Second Respondent? (objected to) 24A If yes, did you mean thereby that the refuelling of such venicles en such occasions would be hindered or prevented? 24B (1) not applicable (.t) 1£ applacable, (cbjected to) 25A If no, what did you mean thereby? 25B (1) not applicable (11) t£ applicable, (objected to) 26A If yes to question 24 did you mean thereby that such ban would be umrosed by members of the Second Resvorndent? 26B (1) not applicable (11) t£ applicable, (objected to) 27A Did you consult with David Arthur McNally i1n relation to this ban? (objected to) 283 Did you ianform David Arthur McNally that the Second named Respondent had decided that the ban should be imposed? (objected to) Brad you w.nftorm David Arthur McNally that, untiral £rrther notice, he should not refuel, or permit to be refuelled, the tanker vehicle of the Applicant? (objected to) 30\ Did you inform him that the reason for such ban was the desire of the Second Respondent (The Transport Workers Union, New South Wales Branch) to enforce the provisions of the Transport Irdustry Petroleum and Dystributton industry (State) Award? (opjyected to ) 31A Was 1% your Intention to coerce the Applicant into empioytng members of the Second Respondent to drive its tanker vehicle when 1it was engaged in refuelltag aircraft.(opjected to) If yes, was it your purpose, in erder to achieve the object in auestion 31, to cause loss or bo vo be Les) nN wy 'age to the business of the "rplicant? 22's (+) not applicable '11) 1£ applicable, (objected to) "I. 90 no, what onurpose did you expect the se to achieve? - ? <*) not applacable +} 4£ applicable, (cbyected to) you, by means of the ban, intend to spder the Applicant im carrying on .cs business?(objected to) va * you by means of the ban intend to vent the Applicant from competing a other airlines in cffering charter other services?(objected to) 3(4 21d you have, as a reason for the ban * purpose other than to coerce the soolicant to employ members cf the te "ransport Workers Union (New South weles Branch) as dravers of 1ts tapker vehicle? (objected to) ' Ger 16 r.2(2) of the Rules of Court provides that Le wthall, .... answer unterercgatories by filing and ey ois: oa tne party requiring the answers:(a) a statement in 2 E a4 rare? vith rule 6; an@ (b) an affidavit veryifying that -Aer 16 r.6(3) provides that "a party may object to rseerrecy apy iunterrogatory cen the following grounds but no Stper: € ) "nere the answering is not required by an order, wto.n oo y imterrogatory do2s not relate to any matter in sbi oad Lecveep him and the party requiring the answer; (2) '.n 4 > vakerrogatory 1s vexatious or oppressive; and (c) ny on Me areunds of objection to interrogatories numbered =, 1, dt, 24, 21, 31, 34,35 and 36 have been vervtied as a ~ol Lows + ) eyat wt (the interrogatory) 1s vexatious, "pressive and an abuse of the process tk the Court. -) .at it 1s a fishing iunterrogatory. ' } 'hat wu answering the iunterrogatory nay tend to expose myself to the inosition of a penalty. oy ) trat the anterrogatory seeks to "uustion me as to my state of mind. 'e} shat the answer may tend to incriminate > "rounds of objection to iunterrogatory numbered 12 ™ . 4 verifieé as the same as grounés (a), (b), (¢c) and ~ . uPw.Lst grounds of objections to interrogetories 27, ' 3 30 are verified as the same as grounds (a), (b), : '.) together in each case with a further grovnd that ssrogatery seeks details of what was said and not the ~ oc? thereof. Interrogatory 23 ts also cbiected to on wot .@r around together with ground (c) and (e) above. ". answers, 13B(1i1), 16B(11), 17B(11), IJ8B(1u), , +, %5RC11), 26B(12n), 32B(11) and 33B(11) the sole "o8 , if each or any of the interrogatory is applicable, t 'co answer "may tend to incriminate me". fFrer argument, Mr Mchevitt Counsel for the Applicant 1 , 4 that he was not pressing interrogatories 5A and GA. - 16- Refore considering the validity of the above grounds .£ objections relévant parts of sub-sections of s.45D and ether ctections of the Act are referred to. The anplicant's claim alleges a breach of those parts of s.45D(i). which 45D(1) Subject to this section, a person shall met, wm concert with a second person, ergaege in conduct that Nhincers or prevents the supply of aoods or services by a third-person to a rourth person .... where- ) seer ) the fourth person 1s a corporation @ the conduct ts engaged in for the urpese, ana would have or be likely to 2 the effect, of causing (the) loss or ge(referred to in the sub-section). vy z5 claimed the "person" referred to in s.45D(1) ts evtner "ir MeNally or Mr McLean, the "second person" 1s then resrectively either Mr McLean or Mr McNally, the "third perser" +s Nonil O11 whilst the "fourth person" as the acplicert, Mavatr Pty. Limitec. The applicant does not claim that either the Federal erganizazion and/cer the State Union @trectly acted in concert wer one another or with either or both the third and fourth resrenaerts for a purrose contrary to ¢.453(1). Consecuently 14 18 urrecessary, at thes stage at leest, to determine a "petcor t ho second respondent 1s a "person" within the meaning of tbav ord in s.t5b(1) but 1t 1s not a Q that "person" 1s net darireu mum the Act. Section 22 of tre Acts Incerpretation Act 1991 orovides iat, unless the ccntrary iuntention appears, - 17 - "person" shall include a body politic or corporate as well as an wundtividual. Section 4(5) of the Act also provides that "the express references in this Act to corporations and bodies corporate shall not be taken to imply that references to persons do not also include references to persons wno are not natural persons.". But the applicant claims that as a result of the alleged conduct of the third and fourth respondents both the first, and second respondents (that 1s, the Federal organization and the State Union) are deemed to have cortravened the provisions of s.45D(1) of the Act as a result of the provision of sub-s.(5) of that section. Sub-section (5) of s.45D reads: "T= two or more persons (in this sub-secticn referred to as the "participants") each of whom 1S a member or officer of the same organization of employees (be1rng an organization that exists or ts carried on for the purpose, or for purposes that include the purpose, of furthering tne interests of 1ts memoers in relation to their emplovrent) engage in corduct in concert with one ancether, wnether or rot the conduct 1s also engaged in tm concert with other persons, the organization shall be deemed for the purposes of - 18 - ents Act to engage 3n that conduct in concert 'vith the participants, and so to engage un that conduct for the purpose or purposes for wnich that corduct 1s engaged un by the participants, unless wpe organization establishes that ut took all roasonable steps to prevent the participants from ergaging un that conduct." % Clearly both the Federal Organization and the State trase aco "organizations of employees" within the meaning of ' . 28 11 §.45D(5). Yurther, consideration must be given to the question .o7 er sce second respondent (the Stats Union) us a "body --f ravi" within the meaning of that phrase in s.45D(46). meos 'vase. question involves consideration of the Nex Scuth Sales locue Unzon Act 1881 and the Industrial Arbicratton Act I'3Q >: numerous decisions of the English Courts, of the High "4 rtocf "ustralira, of the Australian Industrial Court and its reocrsser the Commenwealth Industrial Court, of the ue vcurt of New South Wales, cf the New Sovth Wales *, ry» L Commission and more recentiy of tne Federal Court Te Trade Lnion Acct 1881 (NSiJ) 18 still in force. -19 - he 'ow south Wales Industrial Arbitration Act 1940 provides an "ay trade unton of employees" may be registered under 'Mat "ct and on registration shall be an tundustrial union hp ucn registration is duly cancelled. The Industrial wov's tion Act defines a "trade union" as meaning a trade re15e roqi3tered under the Trade Union Act. That Act defines ' wororn "Trade Union" to mean any combination for regulating ' «= reLittons between workmen and employers or between workmen 44> sogoamen .... and for imposing restrictive conditions of anv 'riae or business etc. (see s.31 of the Trade Union setit..3.0,.)1861). Both Acts are silent as to the legal status : wedqristereg@ trade unrton and an andustrial union "lthough there 1s strong support for the conclusion mrt oa .ecaisteread trade and aundustrial union in New South " ' os, by judtczral wumplacation, a corporate character, .aectuva.erits in proeeeeadangs brought under the New South Wales et, £.13 cuestton generally 1s, iw my view, still to be ir i. .<nd authoritatively resolved (see Taff Vales's Case , Osbcrne's Case 1910 A.C. 87, Kellv's Case(1915) 2, 2236, Borsor's Case 1955 A.C. 1014, Williams -v- ot (L959) 103 cC.L-R. 30 @ 63, 66, Egen -v- Shop 'a ote utiee and Allied Frployees Association (1979) 25 A.L.R. ty Egan -v- Barrier Branch of Amalcamated Miners' se sratren (1917) 17 S.R. 243, Bratley -v- Sydrey Branch of sar corside Wortzers Federation (1935) A.R.(NSW) 148 @ 153; Taspics -v- Mackay (1945) A.R.(NSW) 562 @ 574, Costello ~v- Gietrelt Ll F.L.R. 446, Hoolahan ~v- Gietzelt 1 F.L.R. 261, 'hizpny -'- A\nplebee (1959) 3 F.L.R. 361 @ 364-365,Moore -v- Dovle (1969) 15 F.L.R. 59, Transport Workers Union (NSW Dreren}) & Grs -v- Leon Leidely Pty. Limited 28 A.L.R. 539). I respectfully adopt the remarks of Bowen C.J. in Laicelv's Czse(supra) @ 595 where he states: "Dealing with the fosition of the union there wis some divergence between the Erglish and Australian authorities relating to trade unions, waite? lazves 1% @ matter of scme douvnt and difficulty 'vhether a trede tnion such as tnis respondent, registered under the WH ih c 17) cd bal = fil fe ye rbitration Act 1940 and governed by the Tra [a 10) a Unien Act 1281, has legal versonality or 1s to be regarded a "€or the purposes of the acts Interpretation Act 1901 cr as a "person" for the purposes of s.45D(1) of the rede Practices Act 1976. Thts again aprears to me tc be a serious guéstion to be tried in the light of all the facts as they ox1st after the full trial of the matter and not a matter to ke decideq definitively at this interlocutory stage.". I @ém aiso of the opinion that th's questicn should not in ell the cireumstances be decided dGefinitively at this stage of this nroceedcrd. Suffice 1t to say, that, tn my viev, there is a real possipility that, centrary to vie.s expressed by Laane J. in Lardelv's Case (supra @ 602) and by Lockhart J. in Leor Laidely Pty. Lumited -v- Transneort Worxers Unicn of - 21 - Australia & Ors 28 A.L.R. 129, the second respondent herein ty (the Slate Union) 1s not a "body corporate" within the meaning of that phrase in s.45D(6) of the Act. Re apnlicant's action for loss cr damage In the present proceeding the applicant ws also claiming damages under s.82 of the Act. Section 45D(6)(b) prohibits such action against the third and fourth respondents ve it 1s determined that the organization of employees of which they were members at the relevant time was a bedy corporate. Cn the other hand, if it 1s determined that such orgaenizaticn was, at the relevant time, not a body corporate within the meaning cf that phrase in s.45D(6) then no wrececdtrg under s.82 can be directly brought against the third and fourth respondents (s.45D(6)(¢)(2)). necordingly the only Further ordeer that the Court could make un the present proceeding against either the third or fourth respondent 31s an order grenting a permanent injunction under and un accordance with s.80 of the Act. If the applicant was not seeking an injunction under s.€0 of the Act against the third and fourth respondents, then the Court vould have no jurisdictton to hear the action for Ganages against them. Under such circumstances, should the Court ertertatin a motion seeking orders directing those tro - 22 - ret oyturnts to answer interrogatories relating to alleged pest cererc* oy them which wf proved might support a finding of sar ce org the applicant when an crder could not be made " 'put *+um personally for the payment of such damages as a wosoudl.so ocr tpeeir conduct. Coviously vf the third and fourth respondent were not mn ortires to the proceeding then no such interrogatories could re remseistered. Simply by Joining the third and fourth vesgcverennts as parties to a proceeding in which damages are " me Against other respondents for the purpose of seeking, '7 'tu oome proceeding, an anjunction under s.380 of the Act . 1 ot <hos2 two raesrondents dces not mean that in those Trrc.t srarces the avrplicant 1s entitled to administer trherrctitories directed to the third and fourth respondents youre, 'ro not relevant to the wussue whether a permanent st. ctr. 1 uarder s.80 should be granted. Such interrogatories mk - (yY op imnien be oppressive and need not be answered. "tran ag Privilece ' ~ ayer lityv cf proceeding against Third and Fourth +s for Percuniary Penaliv m esvectfvlly agree with the observacions of Deane ve Pefriceratcda Express Lines (A/asie) Pty. Limited -y- cee? " Meet «rd Livestock Corn. & Ors. (1979) - 23 - Ye... 0. (Para.40-137)(Vol.2 A.T.P.R. 18,484) in which a review . » eworly cases dealing with the principles relating to the 1+? 7 GL an objection by a party to litigation to both the 'yo arv of documents and the providing of information 1f the ~ vie tcareof would be to provide evidence against him which v's cs used to establish his liability to a penalty in other trocheciunas. \t 18,486 Deane J. stated: "Ts 13 a well established vrinciple that a 'fopaant un proceeaings which are solely for rocevery of a pecunizary penalty should not ~-erad to disclose information or procuce -> rercs which may assist in establishing his - « Lity to the penalty (see, generally, per Tastes J., R. -v- Asscciated Northern ' verves(1910) 11 C.L.R. 738 at pp.741-748; . 1 Titre -v- MecGovern(1953) 90 C.L.R. 336 at ry 2-11-3422; Martin -v- Treacher (1886) 16 . ». 507). [ven where, as 3n the present 'on, ne proceedings are not for recovery of sealty but to prevent and redress civil & party to litigation ought not to be ~G *o providée information or prcduce erts for iunsnection by the other party 1£ " cosult thereof will be to provide evidence taaiyrst nium which may be used to estaplish his -' orlity to a penalty in other proceedings nro. Corporation -v- Derbyshire County wt. (1897) A.C. 550 at p.552). ' ss wat 2 former casc, that 1s to say in a mere u.' a for a penalty, a court should, in the . eros OF statutory provision to the »'woryv, refuse to make any order at all '.a'astu the defendant fer discovery or 2 .'etion oF documents or provision of '> srnatreon for the reason that the whole and seed cbject of the proceedings being the "S>s1ti0on and the recovery provision of rrmation against the defendant can, so far 'o "ar prosecutor of the action 1s concerned, V¢ rreperly have no other intended consequence (see R. -v- Assecriated Yorthern Collieriues, Supra, at p.742). ....e eee Tr she latter case, that 15 In a case such as tne oresent where the vreceedings are not for tne rucsvery of a penalty, there 1s no general rul2 mrecludtra the making of an order for discovery or wnterregatories and there will ordirarily be no proper ground for objecting to en order for production of documents or previsi0en of informeticn being made. The party against wher such ar order is nade 1s left to object to producing particuiar decuaenes or providing particular wnformation on the ground that such production or provision may tend to expose him to a penalty. (See 'tayor of the County Borough of Derby xvo herbvsr re County Council, supra, at p. 1553). I= the State Union 1s a body ccrvorate within the meantaa of §.459(6) and 1t 1s determined that, pursuanz to che rrovisions of s.450(5), the State Union 1s deemed to have contravened s.45D(1) as a resulc of the conduct of the third ard fourtn respondents then a percuntary penalty not exceeaing $255,003 could be imposed agatnst wut purseant to the sco'isions of §.76/1). Sub-section(2) of s.76 provides:- "Noth tng in sub-section (1) authorizes the making of an order ageirst a nerson not being a body corporate by reason thaz the purson mas contravened or attempted to contravene, or been livelved cn a contravertion of, section +32 .... secordingly if the second responcent 18 a body corporrte neither the third nor the fourth respondent could ve evnceced tc the imposition of a percuniary neralty for any - 25 - contravention or attempted contravention or being involved in a contravention of s.45D which might be determined un the present proceedings to have been committed by ether or both of them. On the other hand, in such curcumstances, if the State Union, ts not a body corporate within the meaning of s.450(6) a proceeding may be wnstituted in the Court for the recovery of the percunlary penalty referred to in s.76 for an alleged breach of s.45D by the union against an officer of the tate Union as a representative of the menbers of the unton at the relevant time (see s.45D(6)(c)(1) and s.77). In such a case the provisions of s.76(2) of the Act do not apply (s.45D(d)}(c)(11)) so that an order imposing such a percuniary penalty could be made against such officer. The maximum penalty that could be imposed in those circumstances 18s $259,000(s.45D(6)(e)(111)). Although such a proceeding can be wnstrtutec re) niv agatnst such officer, s. 45D(6)(c)(1) provides that such proceeding snall be deemed to be a proc2eding against the third and fourth respondents as members of the union. Any judgment cr order made in such preceeding r=y be enferced by process issued and ¢xecuted against any prorerty in whieh the State Union has or any memrbers therecf have un their capacity as such members a beneficial interest whether vested un trustees or however otherwise held, as 1f the State nion «45 a body corporate and the absolute owrer of the wrt or unterest(s.45D(6)(c)(v)). eccordingly, althevgh ro process for tne enforcement ve a A judgment or order coulé be issued and executed rirgesiy -eainst any other property of the third or fourth reescr'oents, those respondents would, tn such circumstances, proriply ce unterested in the property against which execution ray ta fected under s.45D(6)(c)(v). In my view, a Judgment Or wf er iu a preceeding brought under s.77 in such circitaisterces could be said to operate to effectively expose tA 'rs and fourth respondents to the poss'bility of the ' soer- oo of a wvercunilary penalty so as to perrit those to claim privilege against answeriag 'anerrc7 torvzes which may tend to expose them toe such penalty. "oa fl im of Privilege i } co J rpility of Criminal Prosecution The principles relating to such objection are well 1 ned and have been succinctly set out ain Re J oterc rt certeal Develcrment Corporation Pty. Limitecé(1975) 1 ae 233, by Bower C.J. in Equity, fupreme Court of New clon oil) s,(as he then was). At p.259 he stated: leYore turnine to the particuler questions, 'Ss convenient to re eker to the law relating 3 "7s heaa of privile seeee The questicn 1, +s to when this objection may prenerly be foe oar - 27 - The positicn appears to b sIT VSS 1S Yetron on e that a entitled to refuse to answer a the ground that rinmirate him, if the answer may tend to the witness, or the husband o the answer may se xr wife of '> witness, to a criminal charge or penalty - tirderture. (See R. -v- Boyes(1861), 1 B.& : 11; 121 E.R. 730; Ex parte Reynolds ) , 210 Ch.D. 294; Lamb -v— Munster (1982), c 110; Triplex Safety Glass Co. Lid. csaave Safety Glass (1934) Ltd., (1939) » R. 613; fortimer ~v- Brown (1 at p.495 (1972) A.L.R. ringle(1934),. 34 S.R.(N.S.W. corleand - re) romraliy go unto the TIClU, 970), 122 723; Re ) 508 at parte P.; Rc Hamilton (157), 74 ) Tt 397 at p.399). The bare oath of that he us endangered is ed as necessarily conclusive of the ys for the court to cons reumstances of the case, and the nature evidence the witness 1s called upon to vneother not to be ider fron there 1s reasonable ground to witness %ts compelled to ans Wust unaGunary or a a — danger of prosecution ocr forfeiture yer, The be real ara appreciable, and not Ss a risk, the court scoable or not that proceedings oe taken. = may, by affording a lank in soonts, become a means of bringin wieness,(se=s Osborn -v- Londen , 10 Er. 698}; 1560 E.R. 620. 1s of the view that the witness some latitude will be allowed to vn judaing for himself ti dancer, ' ate Moye eure : svat 2 oa oan rthoass insubstantial character. does not guestion of whether it will, in yr cemments may be made, namely, that a > which at Eurst sight ma y appear the chain g home an ne effect particular question (see Boves' Case, Hl 9.330)". Suruittec that, CGespite s.78 respe Toomey Q.C. who, with Mr Douglas, appeared for the of the Act, the third ndents were entitled to refuse tc answer each Vnterrogator1ves objected to on thts ground of if the anster thereto may tend to expose them to a or ralty cr forfeiture. Section 72 provides: "Criminal proceedings do not lie against a .rson by reason only that the person- (.) "as contravened a provision of Part IV; (2) has attempted to contravene such a provision' {c) nas aided, abetted, counselled or precured a person to contravene such a provision; (u) has unduced, or attempted to induce, @ person, whether by threats or premises or otherwise, to contravene such a provision; (#} has been tn any way, 4@irectly or indirectly, Knowingly concerned in, or party to, the contravention by a person of such a provision; or (f) ras conspired with others to contravene sucn a provision." ua My Toomey susmicted that the provisions of s.45D do Met reduire che applicant in a procecding such as the present to prove that the conduct complained of was done with the iptent of causing damage2. All the applicant 1s required is prove is an intent to ao an act. He need not prove an iuncent that Comace would flow from that act (See Tiljlmanns 3Butcheries tv TLirmited -v- Australasian Meat Industrial Emrolovees! Unicn ard OJthers, 27 A.L.R. 367 @ 376 and 382-3; Laidelv's Case(suora) @ 593-4, 600-1). Tee wnterragaterz.es objected to on ths particular ground wor2 sucn that answers theretc may prove an intent to cause harm or Camage and accordingly av terd to expose the lwO respordents to a rieinal charge, namely conmmor la eensniracy to do something contraryto law, or to do somethng wreraful or harmful to another person, or to use unlé-vtul - 29 - means in carrying out an object not otherwise unlawful. (as to the nature of such offence see generally, Watson and Purnell, Criminal Law _1n New South Wales @ p.283 para. 1151 énG cases there cited.). Such answers, 1t was claimed, would be beyond the protection given by s.78 of the Act which applied only to acts which constituted a contravention of I am satisfied from the circumstances of the cease and the mature of those particular interrogatories that the resvondents are called upon to answer that there is reasonable round for those respondents to apprehend dancer of ve} presecut1ren for common law conspiracy or cf civil actions for percun'ary penalties. "®ccoraingly, in my optnton, neither respondent 1s required to answer those unterrogateories. Further, 1£ a contrary view 3s taken regarding the dancer te the third and fourth responderts of prosecution for corren law conspiracy or of civil actions for percuniary penalties, T am of the opinion that those responaents are entitled toe claim that those questions to which the claim of privilege bas been made are in fact oppressive within the meanipg of that term tn 0.16 r.6(3)(b). Creurd af chyacticn (da) above This ossection reads "that the interrogatory seeks to Lvptien 72 as to my state of ming". In support of this TYu. da r Toomey relied on the dec1s10n wn Service and , 7 =t= Seote (1891) Vol. 17 V.R. 40. In reply Mr McPevitt ts oyf oe. the decision an Jordan and Anor.-v- Sanders ind or.) 2lr S.A.S.R. 424. No reference was made to Service -v- Joare im this jatter decision. I understand the judgment of erp ¢o. 11 Service -v- Cocte has been followed tcoth in the c.it, 71-1s10n of the New South Wales Suprete Court ana in sce Nivottrtan Supreme Court for many years. in my vrev that 'scrgter crouid be followed. Accordincly in my opinion this -ro..2: of cbjectton, where taken, has been validly taken. ler the reasons set out above the Kotice of Notion is mem sca with costs.