fine Ilo CATCHWORDS Trade Practices ~- Trade Practices Act, 1974, s.45D(14) - Application for interlocutory injunction -. Principles applicable - "serious question to be tried" - Balance of convenience. EPITOMA PTY. LTD. v. THE AUSTRALASIAN MEAT INDUSTRY EMPLOYE&S' UNION, JACK O'TOOLE, DICK ANNEAR and NELSON WILLIAMS No. G232 of 1984 Sheppard, Morling and Beaumont, JJ. 27 July 1984. Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) } No. NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION BETWEEN : AND: AND. AND: yatr Chadas © Where made: ZHE_ COURT ORDERS THAT. ) } Qn appeai from a 31n G232 of 1984 gle judye of the Federal Court of Australia EPITOMA ny TY. MITED r = ws Appelian or} THE AUSTRALASTAN MEAT IND VSTRY EMPLOYEES UNION Ficst Responjent JACY O° TOCLE Gesena Pespo CLioK Thise NELSCN WILLIAM= 2. UPON the appellant giving the following undertakings to the Court: (a) that 1t will pay to any party and to any other person adversely affected by order 3 such compensation, 1f any, as the Court thinks just, in such manner as the Court orders; (db) that it wiil us2 165 best endeavours '5 expedite the final hearing of this sroceeding; 'c) that, ancil one determination or the prccaedings or furthes craer, 12 will not bea xp fo 5s ct MS cr Oo Ga n = = nh ra cia - a. rd aay ots otherwise be involvad in, the making cr care L. That the appeal be allcwed. 3. whichever should first occur, the respondents and each of them be restrained by themselves, their servants and agents from imposing, giving effect to or enforcing any barn on the provision by any person of goods or services to the appellant at the Point Stuart Abattoir where any such ban has the purpose and would have or be likely to have the effect of preventing or hindering the appellant from: - (a) carrying out works of construction, maintenance or repair at the said abattoir: or (b) from slaughtering stock at th said abattoic: {c) from selling such slaughtered stock and 4. That 'he firai hearing iff ihe erccseding 22 cays from this date. . That liberty be veservei tc ary ssponcer st tt apply, on such netice as a or vary ceder 3. 9. That a dicectionms hearirg be fixed for WNednesdav, 1 August 1984 at 9.30 a.m. in Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) No. G232 of 1984 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) On appeal from a single judge of the Federal Court of Australia BETWEEN : EPITOMA PTY. LIMITED Appellants AND: THE AUSTRALASIAN MEAT INDUSTRY EMPLOYEES' UNION Firs: Respondent AND: JACK 0 TOOLE Second Respondent AND: DICK ANNEAR Third Restcndert ANZ. NELSON WILLIAMS CORAM: Sheppard. Morling ani Beaumont TT. DATED: 27 July 19394 REASONS FoR JUDGMEN? THE COURT: This 12 an appeal from a decision cf a judge cf 2. the Court refusing to grant the appellant interlocutory relief in proceedings brought by it alleging a contravention of s.45D(1A) of the Trade Practices Act 1974. By that provision, subject to certain statutory defences, 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, inter alia, between Australia and places cutside Australia or within a Territory. The proceedings are brought by the appellant, which is in the process of establishing an abattoir in the Northern Territory, against the first responcent, a trade union of employees in the meat industry, ard certain of 175 officers; the second, third and fourth vrespcondents are respectively the Federal Secretary, Federal resident and Cueenstland Secretary of the first caspondert. The primary facts, as found by his ttoncur. are as rollows. The appellant is a company, inctorgoratei .n New South Wales. Sins Q "ne hearing at ticst instance, it has become registered in the Northern Territcry. in May 1984 1t ro agreed to purchases a property in the Territcry, krown as the int Stuart Abattoir, for a price of $1.25 million. YO P Completion of the agreement has been delayed. The appellant purchased the prorerty with the intention of operating 1t as 3. an abattoir for the slaughter of buffalo and cattle destined for export. In May 1984, pursuant to the contract for sale, the appellant entered into possession of the property for the purpose of carrying out works designed to upgrade it. Certain works, costing approximately $750,000, have been carried out since May 1984 with a view to satisfying standards imposed by the Australian Government and by the European Economic Commmunity. These works are not yet completed. They have been carried out, to some extent at least, by employees of the appellant who had previously been employed at the abattoir by its former cperator, a company now in receivership. These employees, although erployed in the construction works, were also retained by the arpellant with a view to theic te ubsequent engagement in the speration of the abattoir. The appellant intended to commence? zreduction, 21 32 limited basis, in June 1984 and to se inte full arctducticr as 300m as x33sibl2 thereafter. Sasaus= if climatic conditions, if 18 possible tc operate irc acactcir sly in December. The appellant has unseriaker nreaqctiaticons t2¢ the supply of buffalo and cattle 'fcr slaughter at the abattoir. It has committed .tself ¢5 fburchase between 28,000 and 30,000 nead of stock 'far processing at 'the abattoir with a view to exporting the neat tc, inter alia. West Germany. Unless the arrellant 1 ul w ty rw ter) cr u a a =} 'S far) ip) cw wu of © t fat) 4. work involved in up-grading the abattoir in the near future, there is real risk that it will lose the right to sella proportion of its output to countries within the European Economic Community. Before the appellant took possession of the abattoir after agreeing to purchase it, its managing director, Mr. Benjamin, had a discussion with Mr. Finn, who is a member of the first respondent and who was the works delegate at the abattoir when 1t was operated by the company now in receivership. Mr. Benjamin informed Mr. Finn that the applicant intended to operate the abattoir unter 4a contract system. The essence of the proposed system was that a company would te formed in which each of the appellant's employees who were to orerate the abattoir would hold shares. Those employees would cease to be emplcyed Ly the appellant, and become employed by the propased company. The appellant would pay t92 the prirosed company wonres calculated apon the mumber of beef sisayhtered cn 23 particulary day, at rates which varred tetweer labourescs, a ra ro fa boners and slicers, and silaugh*termen. Tne company w then make payments cs the emplcyees. pu wb ret It was said 'hat such ar arrangement woul ve ry cr benefits for both the employees and the appellant. From tne u point of view of the employees, the advantage claimed for the scheme was that payments sf vremuneration to them rculZ 5. be spread over anentire year, instead of being paid in larger amounts during a limited season. Although this would not involve any reduction in overall liability to income tax, it was said that less group tax would be deducted. From the point of view of the appellant, the advantage of the proposed arrangement was that certain costs of employing labour, which would otherwise have been borne by it, would be transferred to the contracting company. The respondent unton opposes the proposed contract system. It is that opposition which has led t 2 the industrial unrest which has given rise to the present proceedings. There 13 evidence chat many of the employees who would work at the abattoir would nst be unhappy to work under the proposed contract system. Or the cther hand, it is obvious that the adoption of the sys 7em might well erode lo wh some of the protection afforded to en n their a we] "a oO ws u working conditions and rates cf bay aré .27ula ct ed ry awards og determinations made dy industrial tetbunals. I aT aprears 'hat che first respondent is pursuing, in the Australian Conciliation and Arbitration Vommissicn, arbitration by award of an industrial dissute between it and a number of meat producers in the Northern Territory. The appellant is not a party to that dispute. It i8 unnecessary to refer to all that has passed between the parties arising out cit the proposal to introduce 6. the contract system. It ts sufficient to say that, although there have been some negotiations between them, no agreement has been reached. The employees at the abattoir have been dismissed. They occupy accommodation at Point Stuart owned by the appellant. They have been requested to vacate that accommodation by the appellant but have refused to do so. Orders have been made by the Supreme Court of the Northern Territory requiring the former employees to vacate the accommodation which they continue to occupy. Some of the officers of the first respondent have held discussions with certain members of the union who were formerly employed at the abattoir. The first respondent, by one or more of its cfficers, has given a direction to the men that they are not allowed to work at the abattoir until negotiations have been completei with the appellant and that, a1f they do work, the1rr union tickets will be in he will not get a 3cb anywhere in Australia. cr jeopardy and kg A cr least Jne empisyee has announced 'that he was intending to "TS } ts "s ct ct k, ani tha hers have said chat they wish to work, sut G Fe fe) o 1 themselves unable to do so. Other former employees have said that they are not prepared to veturn to work. Threats have been made that anyone who works at "he abattoir will be "black-banned" at all abattoirs in Australia, and will be the subject of assaults. It should be noted that this evidence is, to some extent, hearsay and thus admissible on an interlocutory hearing and the conclusions expressed above are not final. The respondents having placed a "black-ban" on the abattoirs, the appellant is unable to complete its construction, to procure its inspection by the authorities or to operate it. As a consequence of the respondents' ban, and an associated picket line, employees of Petromart Pty Limited, a distributor of fuel, refuse to deliver fuel to the abattoir. The learned trial judge fcund, on the above facts and on the other material which was before him, that the applicant had made suc oa prima facie case that the respondents were acting in breach of 3. 45D(1A) of the Trade Practices Act in that they, in concert, engaged in conduct fe) Fh ce he eff for the purpose, and having or likely tc have ct ct 1) preventing or substantially hirdering thea "© 06Ufrsom Q @ pli uw ct at fo e-gaqving 2; d2 cr commerce betweer Austraitia and places u s cd te ra 2h D 'p im uu ct rs ju Fa w and within the Nerthecn Teyvritiry. Having reached this conclusion, is Honour then considered whether sub-faragrarchs (1) and (11) cf 3. 45D(3)(b) of the Trade Prastices Act were arplicable to the facts sf the 'tase. He reacned the conclusion that the respondents stiti "a goci chance at tne trial of the picceeding of making cut a defence under sub section (3):5)" 1D and that the csanseqguence of this was that the appellant had 8. "failed to establish a prima facie case for relief". He also said that, even if he was wrong in this conclusion, he would have been disposed to refuse an interim injunction for discretionary reasons. As has. been said, the appellant has appealed from the trial judge's decision to refuse it interim relief. Further, upon the hearing of the appeal, the first and second respondents gave notice of their intention tc contend that the learned judge's finding that che applicant had made out a prima facie case under s.45D(1A) was erroneous. It is true, as the resvonderts submit, that an appeal from che vefusal cf an interlocutory injanction the exercise by a judge at first instarcce cf such a @rscratiomary power (see Adam P. 3¢ry~ Vals Fashions Pty Gimited v. Philip Morris Inc. Cl2?¢1] 27 AL.G.F. TIF atic Ftc) But the appellate couct will waticless whtre an erste of principle has occurred and failurl 'to -crrect such an error would work an injustice ('.e8 A.D.M. Investments Pc Limited v. Trade Praztices Commission £1937] 493 A.LLR. 475 at o. 487). In an application for an interlocutory injunction, the court must erquire first whether there 15 a seriodu; question to be tried (see The Australian Coarse Grain Pool Pty Limited v. The Barley Marketing Board of Queensland (19823 57 A.L.J.R. 425; Tableland Peanuts Pty Limited v. The Peanut Marketing Board £19843 58 A.L.J.R. 283 per Brennan J. at p. 284). In the Barley Case, Gibbs C.J. said (at p. 425) that he inclined to the view taken by the House of Lords in American Cyanamid v. Ethicon Limited [19751 A.C. 396 rather than to some of those expressed obiter in Beecham Group Limited v. Bristol Laboratories Pty Limited £1968] 118 C.L.R. 618. It would seem that the Chief Justice had in mind the following statement of principle in the opinion 2f Lord Dipliock, concurred in by the other members of the Hcuzge, in American Cyanamid (at p. 497):- "The use of such expressions as 'a probability,' 'a prima facie casa,' or 'a strong prima facie case' in the context of the exercise of a 21scretiinary rower £5 Grant an interlocutcry injunction leads ts confusion as to the <srjyest cscught to be achieved by this form of tamporary relief. The Court no doubt must be satisfied that fhe claim 13 not feiviicus sf 7auatirus, in sther werds, <«that thera i5 a seritus Wuestion tc ra triad.' Lord Diplock went con ats, 427) to exelain the practical considerations underlying this approach: ae no part of the court's of the Ilitigaticn to ute Tt this Fanction at try to stage resolve as to party daifficu conflicts facts on of evidence on affidavit which the claims of either may ultimately questions of Th pe to decide call for depend nor law which 10. detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the court in doing that which was its great object, viz. abstaining from expres3ing any opinion upon the merits of the case until the hearing": Wakefield v. Duke of Buccleugh (1865) 12 UL.T. 628, 629. So uniess the material available to the court at the hearing of the appliction for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim fora permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought." (cf. Dimbleby & Sons Limited v. National Union of Journalists £19841 1 W.L.R. 427; Axpleton Papers Inc. v. Tomasetti Paper Pty Limited £19933] 3 N.S.W.L.R. 208 at pp. 214-5). As has been said, althcugh the laarnec judge found that a orima facie case was established that 'he respondents, in concert, had engaged in conduct of the kind proscribed by s.45D(1A), the first and seccn2 respondents now submit that his Honcur erred in that conclusion Two arguments are advanced: one is factual; the other concerns the construction of s.45D(1A). First, these respondents say that there 15 no evidence that the "ultimats ll. the respondents is the preventing or the substantial hindering of the appellant from engaging in overseas trade or in trade within the Territory; that there ts no evidence that any of the respondents was aware of the appellant's trading plans; that, in this area, there is no scope for the ordinary presumption that a person is presumed to intend the natural consequences of his acts; so that the relevant enquiry here, they say, is as to the "subjective" purpose of the respondents in order to ascertain their "real" object (see Industrial Enterprises Pty Limited v. The Federated Storemen and Packers Union of Australia (1979) 2 A.T.P.R. 17,970 at p. 17,993; Tillmanns Butcheries Pty Limited v. Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331 at p. 349; Transport Workers' Union of Australia (New south Wales Branch) v. Leon Laidely Pty Limited (1980) 43 F.L.R. 168 at pp. 171, 179-80). And, the respondents argue, there 1s no evidence that the csespondents had any purpose beyond stopping the reconstructisr ard cperation of th oO apattoir. Tn other words, they say. thera is ro evisence shat the respondents' purpose extendat into the sealm of the appellant's trade. In our view, no case has been made out for disturbing his Honour's finding of fact on this score. By s.4F(b) of the Act, a person shall be deemed to engage in conduct for a particular purpose if (2) he engaged in conduct that included that purpose; and (11) that purpose is 12. a "substantial" purpose. In the present case, no evidence wag called by the respondents on the issue and it was at least open to the learned judge to make a factual finding adverse to them on this point. Certainly, we can perceive no error of principle and no injustice to the respondents such as to warrant interference by an appellate court at the interlocutory stage. From the point of view of the appellant, at its lowest, the evidence raises a serious question to be tried. The respondents' second basis for challenging his Honour's finding of a prima facie case under 3.45D(1A) raises a questicn of constructicn. The argument seeks to avoid the literal meaniry of 5.45D\ 1A) ky resort =o a ""surposive" construction. In essence, 'che respondents fasten upon the excepted relatiornshis specified in the provision "...a third person (not being an arcioyer of the first-mentioned person)..." as arp indication that the section 18 aimed act what are, in truth, s-ceondary bs thus, the argamert cuns, if tne appellant were depending upon who 1s selected, however azbitrariiy. as the first and second perscns in 5.45D(1A), it would be possible to rotate personalities in away which would avyo1i the untended operation cf the provision. In a p oO ts t, the respondents say that a caonsensical result would sccur if the section meant that if, on the one hand. A conspires with B, there would be no ctontraventicn. whereas, in the other, 1£ 8 13. conspires with A, a contravention would be committed. Reliance was placed upon the reasoning in Cooper Brookes (Wollongong) Pty Limited v. Federal Commissioner of Taxation (1981) 147 C.L.R. 297 at pp.320-1 to support the contention that a literal construction of a statute will be departed from if the result would be capricious and irrational. Accepting, as we do, the decision and the seasoning in Cooper Brookes, we are not persuaded chat the construction contended for by the appellant is caprizti ous and irraticnal, quite apart from the impact of 5.450(6°>. +o all o Pa o nts, it 1s both unnecessary and lnasprcopriat=? that we oO u u expr any concivzed view on this question in an interlocutory appeal. Once it is tonceced That it was, at rans oO cr Bb pe cr iy ro) ray fal aw Le] fal}ul ud +3 uw at s £ nl ct re Q a u tot o ie} io an fon the very least, aryuab "tS revall it inevitably follsws that ctnera i:5 2 sericus question to be tried on this issue. To besrow the lang .age of Lord Diplock in Dimbleby. Supra. it 12 "p> cart of the Court'sS Function cn an applicaticm fo, an inhistlocato.y eanjunction =. decide diffacule suestaon: tf law wraith rail for detailed argument and mature consideration! tat 2.4233) We think that his Honour was right in holaing vha-' a peina facie case was established urder s.45D¢.4). However, as has been indicated, having rega eT ul s.45D(3), his Honour ultimately concluded that the fu "Th 'TS oO i t gl is] ct 14, failed to establish "a prima facie case that is likely to succeed at the trial." So far as presently material, by s.45D(3)(b), a person shall not be taken to contravene s.45D(1A) in the case of conduct engaged in by the following persons in concert with each other (and not in concert with any other person) - (1) an organizaticn of employees; and (1i) an employee or two or more employees who are emplsyed by the one employer. The dominant purpose for which the conduct is erngaded in must te Substantialiy related to the camuneraticn, conditicns cf employment, hours of work working conditions of the employee .c of any of the employees referred £9 in (11) above. His Honour found that 'ne asreellant's emnplryses In our view, with respect, the lLearnasi raige esrac in so finding. Given the evidence, alreacy mertisned, that compiaints were made Ey varicus angplsyses respect of their future employment and <ctherwrse, with all respect to his Honour, we think that, at the very least, a bi ce) rious question arises whether it was proper to regard 3ucn 15. conduct as having been engaged in "in concert" as required by s.45D(3). His Honour was prepared to accept that, before two persons act in concert, there must be agreement between then. However, the learned judge thought that a useful analogy for present purposes could be found in the criminal law. He said (at p. 25 cf his reasons): - "The concept of acting in concert is more familiar in the criminal law than in civil cases, and the nerzessity for an agreement 15 recognized in the criminal law. See R. v. Lowery and King (No. 2) £1972] V.R. 560 at page 561 and R. v. Matusevich and Thompsor C1976] V.R. 470 at pages 477-9. As was said in the last-mentioned case, however, the question whether an agreerent exists for this purpose 1s not to ke answered by reference to the formal vequirements of a bindin contract. The Full Tourt of the Supreme Court of Victoria in that case held Chat it was possible for one person to act in toncert with ancther, even 1f that other 15 insane. There are authorities in eriminal law in which it has been held th the existence of facts amounti-vs *9 defence of duress in the ceiainal law i not prevent 4 jury from vrsaching tne verd chat the person subject tz the duress ac im concert with anctherc. See zk. v. hacding £19763 V.P. 129, and R. ov. Evacs nd Gardiner 'No. 1) C1976] V.R. S17, sspecialiy at page 520, where Sush J. daalt with tne distinction between a person who says ""Seind compelled, I agreec" and a person wac says, "I dzaoneh agree"." In our view, none sf the authsrities relied on by his Honour supports the ccenclusion that a party acting under duress of interlocutory hearing, to be acti s.45D(3)(b). Lowery and King doctrine of 16. the kind here found, for the purposes to have been exerted, ng in concert with others We will deal with each case in turn. (No. acting in concert to commit a crime - ",..although the understanding or arrangement "While we think of this could be said for the purposes of 2) establishes that under the belle) must not have been called off before the commision of the crime, the mere facts that while it 1s being committed one of the persons acting in concert feels qualms or wishes he had not got himself involved or wishes that 1t were possible to stop the proceedings and still get off Scot free, will not arount to a callin off of the undertaking or arrangement" 'at ».561). our opinion, the reference, in this passage, off oF the antecedent agreenen if anything, appellant in its argument. Matusevica, the Full Court said 'at ¢. 430):- that the pri the questior whether ina the sane and che insane man w concert requires oF cousse an examination the evidence. "the ratare of the insanity may preclude the insane man from being capable of the assent which 15 necessary for the two men to ke acting in concert. That would not mean that the sans man would not be ULItY in respect of his own participation in the events which caused the death and the concept of innocent agency might well apply to make him Liabla for the 17. acts of the insane man. But in such a case, the matter could not be put on the basis of acting in concert." Again, if anything, the reasoning assists the appellant. In Harding, 1t was held that in respect of murder as a principal, whether inthe first or second degree, performance of the act under duress is not a sufficiant answer in law. The case is concerned with the special rules of the criminal law in this area and is not, we think, a useful guide to the construction of 5.45D(3}(b). Finally, in Evans and Gardiner 'No. 1), apacc from aifficulties in reconciling Haeding with Lynch v. Director of Public Prosecutions £19751 A.C. 653, Lash J. accepted (at pp. 519-20) 'hat although, upor a cnarye sF murder, 1¢ was rot oven to explain away facts from which farticipatison ina were to be regarded as reléevan to the formaticon cf an agreement that the tctwr accus22 should act trsetner. Again, if anything, this .sascning <tnd3s te 255277 the apyvellanct. The learred juag2 Found a furthers analogy in the Civil law, saying (at xo} tu a ' 18. "Even in the area of contracts, duress renders an agreement voidable at the option of the party who entered into it under duress, but does not render it void ab initio. See Barton v. Armstrong C1976] A.7. 105, especially at pages 118-9. In that case, the Privy Council, by majority, tendered advice that a declaration should be made that the deeds in question were executed under duress and were void; the reasoning in the passage to which I have referred makes it clear thar such a declaration was based upon election by the party subject to the duress to avcid the deeds." Since the relief sought in that suit was equitabis, no question could arise of the deed being vo13, as distinct from voidable, in any strict sense (cf. Winthrop Investments Limised v. Winn ur fe aH ct o a ima) ho w "I in ud tw a2 arL7 ee) oy) oy wn oy) cr fa] o © w 7 lk sere mts fan sive me - e+ rszan by che cespondents from thea crirrtumstanta 'tnat. assent peocteedings cn his sact. Mr. Sarton would nave bean cbliyei to perform his obligations under the deci. tm anv vioxx. Since the intsrventicn of & court of equitt (4s ' e2e3tacy .7 codes co grant othe claintiff the Lelieat ne csuaht, tt teansacticn was vo.raarbls arn tnat mis .-estarce oe Calvin v. Carr £1980] A.c. S74 ac ep. 293 3° . In our cpinisn, neither the dscisicn nig the yeasoning in Barton wv. Armstrong can eorsviie any useful analogy fcr present purposes. There 15 was ultable rule snablin: a contract entered ints as a result ct) Q of fraudulent misrepresentation to de set aside argplisc in 19. cases of duress, so that if the defendant's threats were a contributing factor to the plaintiff's entering into the deed, the court would set aside the deed although the plaintiff might well have entered into the transaction out of commercial necessity even 1f the defendant had made no threats to induce him to do so. Here, the question, which is one of statutory construction only, is whether, given the pressure put upon the employees, 1t can still be said that they were "acting in concert" with the respondents. In 3 iv rs view. the questions are quite distinct, Eoth in content and in princirle. So far as we are awars, vhere 13 no authority squarely in point. HYewever, suck autncrity that adses exist in the general area -rdicates that the community of purpose Suggested by the noticn of acting in concert requires a consensual elenént which 1s lacking in the present case (see mae King and The Attorney-General oi the Commonwealth v. Assiciaced Northern Cailieries Pty Dimiter £1911] 14 7.9. Saacs 7. at p. 429). WwW ua "3 y te ts ta Again, if 23 Eoth unnecestary and inappropriate, ac the interlocutory s3taye, to express any roncluded view on che yuestion which is one cf mixed law and fact. The potirt naed only be stated to demonstrate that it raises a 3ericus stion to be triec. - a q 20. The appellant advances a further reason why 3.45D(3)(b) is inapplicable in the present case. It says that sgub-para. (iii) does not apply here because the "dominant purpose" for which the conduct is engaged in is not "substantially related to" the remuneration of the employees or the other matters previously mentioned. His Honour rejected the argument, holding that this ingredient of the statutory defence was made out as a matter of fact and law. The appellant submits that the proper conclusion, in all the circumstances, is that the dominant purpose of the imposition of the ban sy the respondents was the shutting down of the appellant's business. The appellant fam i I 'b sought to support 1ts argument, defore arned judge and before us, by reference to the reasoning of Emithers J. in Wribass Pty Limited v. Swaliow £19791 3° F.L.R. 92 at gp. 102-5, especially the following passaze 'ac fe. 193). 'rh appears to me that ir the ccntent cf s 45D the concept of the surpos2 fir which the actual conduct was enyazged in doses not extend beyond the achievement sf the goal which that rtonduct was capable cf achieving. In relatzon to the conduct whica revented supplies of meat reaching the plazntiff that Particular conmduct could achieve nothing more than the cessation or Saturday morning trading in fresh meat Fy och Plaintiff. That was the dominant surs ose of the actual conduct. The wider and ultimate purpose 35 maintaining the worx-free Zaturday norning was the goal which 1% was hoped and intended would be promoted ty achieving the purpose for which the actual conduct was engaged in." 2l. His Honour disagreed with this approach for reasons he then gave. As we see it, again a question of mixed fact and law arises which it is inappropriate to determine at the interlocutory level. Again, it 1s sufficient to state the competing positions sf the parties to indicate that, here also, there is a serious question to be tried. We would add that we ourselves would not express any view, in an unterlccutory judgment, as tc whether the approach taken by Smithers, J. should be preferred to that of trial judge. But we cdo differ from the leasned judge in that, in our view, this aspect of 'the case did reveal a serisus question in our view, the first maiz inquiry should be resolveé favourably to the appellant. W Ft oO o1venience. As has been said. the l2arcned trial judge concluded that, because the respcendsnts stccd "a gsod "hance" at the cyral of vtrakxing sut a defence under 3.45D(3)(b), the aprellant had 'failed to establish a crima Facie case for celief." c was nct necessary, therefoce, for his Honcur co consider the balance cf convenience. 22. summary, whilst accepting the considerable economic loss being suffered by the appellant by reason of the boycott, his Honour wag inclined to take into account the "industrial objectives" of the union. Strictly speaking, the learned judge appeared to express no view on the question where the balance of convenience lay in the instant case; rather, his Honour appeared to be much influenced, in his decision to refuse interim relief, by what he perceived to be the futilzty of granting any injunction, at least one framed with an exception in respect of 5.45D(3) conduct built into 1t. A secondary aspect, going also to azrscretian, was a aifficulty his Honour felt che appellant faced in e obtaining tampcrary accommodation for ctonstruction workers if be such. Fically., hie Yonour corcluded 'that the fact cnat the appellant was not 'chen registared in the Territory as 2 foreign company wnder tne Companies Code '/alincugh it "ow 1s), was a furthes diecretionary reason why intecim celist should ke éeriad. The relevance of othe lack cf reyistration 22 by no mean? obvicus ta us, at case of an Australian trading corporation. In any event, in practical terms, chis question is no longer of any 23. significance to the parties since, at worst, the appellant could at any time hereafter renew its application for an interim injunction now that it is registered in the Territory under the Code. Since, in our view, these matters of discretion could not of themselves be fatal to the application for interim relief, we need consider them no 'further and instead, revert co 8 6the question cf the Dalance of convenience. In dur opinion, in an applicatior for an interim injunction, a distincticn enoLld x2 tracn retween consideraticns which could cConst.tute A aiscreti racy defence and considerations which a> cts the balanra cf tonventence az such. Tne formes "ay a7 cise to a ciar- for final relief, and thus, may saars upcr the £1057 Cn the cther hand, the balanco cf torveriivcr, rorizer7at al it is, wirtn an @vallation cf thr relative wicitisrs st the parties, in terms of theic 'tonvenience . TAMNIT Lear unin the substantive issue whether thers 15 4 32..fus Gueatiic tt be tried. The 'wctisr sf tre Lalarce fo ocimverierce 2s = z — awt oly as, ~ > rT epee aww a a f+est described by Lord CUrelsck in American Cyvanaria .1 Tar7: ~ ~ we r = ban mA . --s3735 - - - - hich, we think, u.¢ certinent tc tne fglsrenc rase ati 24. 408):- "If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary te undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start aqain to establish it in the event of his succeeding at the trial." carry out an evaluation of the crej5 ' [on ivi ia) wFey fu St rha + <a PP i) YQ uw fs) @itner side aif interim relie= were granted. Tf he 2id, 1t 1s ilfficult ¢5 see what weight, in any relative sense, the learned judge felt should be attributed te the uanison's pursult of its '.ndustrial sbjecttives." The sosition, as we 25. see it, is that the learned judge was in all probability expressing no conclusion on the issue of the hbalance of convenience; rather, he seemed to be directing his mind to the different question whether the discretionary defences alluded to provided any answer to the appellant's claim. In our view, the balance of convenience in a case A such as this must favour the grant of temporary injunctive relief. The appellant's business 15, to say the least of it, being interrupted, perhaps irrevocably damaged, by th cenduct of the responcents, on the other hand, it is not easy to see how any damage would be suffered by the respondents or by other parties if an interim injunction went, especiaily if the usual undertakiny as tc damages were extended to any other person who may suifer damage os: 15385 as a result of the restraint. erred in peri claums sf th way that consideration shouli have reer fsealt with. Ordinarily, an appellate Court would be _catn te interfere in such a discreticnacy area. But, in the srasent case, an error of principle has been damonstrated. In cur view, in the absence of any suygestion of srstudice on kehalf cf 'che yespondents (and none emerged, even in the appeal), 'he balance of convenirence fell all one way. Ic decline relies 26. on that ground was, we think, wrong in principle; and any finding so based should, in our view, be set aside. A serious question for trial having been demonstrated, it follows that, subject to the imposition upon the appellant of appropriate conditions, to which we will come later, an interim injunction should be granted. We turn next to the form of such injunction. As kas been said, his Honour wags of the view that interin yelief of any kind should be refused upon the discretionary grounds that it 1s possible that a defence under 3.45D(3)(b) may de avaliable. In Tilimans Butcheries (supra), an injuncticn was granted which, in its terns, excluded conduct AQ which could ce justified by reference tc 5.45D(3). But that order was a perpetual injunction and no doubt the Court a P ur ts o pu ct rey th Las) w =] oO ats order s0a5 to cater for the future uty that certain conduct might be protected under present case, may subsist for 2a ratte. sf wee«s orly, t < wo s y different considerations apply. in our view, it is desirable that ar aunterlsctutcry wttunmstion restrain, in azplicit terms, a particular activity sc chat the parties can be under no misaperenhensicn as cc what is intended, vather than be framed in terms which reflect the general language of the statute, in this case, s.45D(1A) (see Yirtorian E 27. (197813 33 F.L.R. 294 at p. 316); and it is only when the prohibition is framed in such a general way that the need arises to exclude conduct such as that protected by 5.45D(3)(b), should such conduct occur. Given an interim restraint of the limited and specific kind we think 1s appropriate, the futility which troubled the learned judge should not arise. In our view, interim relief should only be granted to the appellant upon its submitting to a number of conditions: first, that the usual undertaking as to damages be extended tc any person, whether a party or not, who may be adversely affected by tha order; secondly, that the jo ;T 'D a ra ee roy 2] cr a Q I [e] ™) a a ate in the axpedition cf the final hearing; and Finally that .f not payticivats, at this stage, in any employment scheme involving the interposition sf a corporate Structure cf the kine described at cc. 4 rf these reasons. J - at "a - - " so es "" ~ ar subyert tc agesagrriace analsctaangs o penalf sr She agcellant, we prop7se 65 rare the Scsllcrvwings synece: UPCN the appellant giviag The Following (a) that 1¢ will pay to any party and to ary sther 28. (b) that it wtil use its best endeavours to expedite the final hearing of this proceeding: (c) that, until the determination cf the proceedings or further order, it will not bea party to, or otherwise be involved in, the making or carrying into effect of any agreement or arrangement providing 'for a contract with a Cl propesad ccmpany of 'the kind described at co. of the Reasons for Judgment that nothing in this undertasz the appellant 'f¢ecm yvavestirg tontract system, that 2.5, tonmtcracting directly 7 J Bervicas Eut RB ciseor.we structure cf the kind das-.ibed at 2. fo sf tne OPDER MR e nu 5 7 = a1 ae 1. That the appeal be allcowed. 2. That the order dated lt July 1994 Suistvrssins in application for irtestocutc.y relief 24 set aside. 2. That, ir liau cf tne ister sft asides, wit cs fanal determinatitn ..ches sfais, -7 = or - 7 "4 wa = ane "+ tishever sheoow.d m2 ana Fal 7 - - a7 her wate > Paes ts em tte e ged wae them be restrained by thamcslves, ineil saovants arg avs7t- th ig) Et H a ue] gag ul wn ra WQ Q ah ' ' He "Ss wy th a by td) Q ct ur ie} to 'y L wi Ft, OQ hy ta Ye i wt so "a ty Ww oJ) iz) ia] odts 29. provision by any person of goods or services to the appellant at the Point Stuart Abattoir where an such ban has the purpose and would have or be likely to have the effect of preventing or hindering the appellant from: - (a) carryin out works of construction. Maintenance or repair at the said abattoir; oc {'b) from slaughtering stcck at the said abattoir; or (2) from selling such slaughtered stock ari 5. That the costs cf the aeslitatily for interlocutscsy celrer be otherwise raserved T. That the operatior cf crstar 2 be guszends2 fac 7 days frcm this sate. Co. That liserty be vre-sarva. tioaov visrond2rt ots: ewcrly, On arth noticrl as a tansé tinall wlicw. ti ar wiha.sze Se vary order 2. a. That a dir August 1984 at 9.72 a.m. in Syare7. 30. respondents have not yet been served, 'that some of the respondents reside a considerable distance from Sydney and that the events in question occurred in a remote part of the Northern Territory. We have fixed a directions hearing on 1 August. We expect that, by that date, the appellant will have administered interrogatories, if any, and will have sought discovery, 1f it wishes, against the first respondent. We also expect that a final hearing d i ct eowill then be fixed, to commence in the third week of August. | certify that this and the 27 preceding pages are a true .opy of the reasons for judgment herein of the Court SP. HUTCHISON Associate Dated 27 Tory 14?