Qua UUDGMENT No. wusgt 2 3.4 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No. VG 218 of 1984 BETWEEN R. & E.P. BCCLESTON PTY. LIMITED Applicant AND: THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, BARRY SPARKS, FRANK BELAN, DENNIS CLARK, ROBERT ROWz, LES. WILLETTS, MARK WITCHARD, RON PERKINS, JOHN HODD&R, JOHN WILLIAMS and LES. BARAMNAH Respondents No. VG 219 of 1984 BETWEEN TRISTAR OIL PTY. LIMITED Applicant AND: THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, BARRY SPARKS, FRANK BELAN, DENNIS CLARK, ROBERT ROWE, LES. WILLETTS, MARK WITCHARD, RON PERKINS, JOHN HODDER, JOHN WILLIAMS and LES. BARAMNAH Respondents 16 AUGUST, 1984 KEELY J. ORDER The Court orders that :- The time prescribed by 0. 4 r. 12 for service of the proceedings on each of the respondents, other than Messrs. Clark and Belan, be abridged to two days and that compliance with the requirements of 0. 4 r. 12 be dispensed with. (Upon Counsel for the applicant giving the usual undertaking) that the respondent The Federated Storemen and Packers Union of Australia, its servants and ayents, and the respondents Barry Sparks, Robert Rowe, Les. Willetts, Mark Witchard, Ron Perkins, John Hodder, John Williams and Les. Baramnah be restrained until determination of the application or further order from engaging in conduct, in concert with any person, that hinders or prevents the supply of petroleum products including bulk fuel by Ampol Limited to the applicant where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the business of the applicant. Costs of all parties be reserved. Each party be granted liberty to apply. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVFSION No. VG 218 of 1984 R. & E.P. ECCLESTON PTY. LIMITED BETWEEN Applicant THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, BARRY SPARKS, FRANK BELAN, DENNIS CLARK, ROBERT ROWE, LES. WILLETTS, MARK WITCHARD, RON PERKINS, JOHN HODDER, JOHAN WILLIAMS and LES. BARAMNAH AND Respondents No. VG 219 of 1984 BETWEEN TRISTAR OIL PTY. LIMITED Applicant THE FEDERATED STOREMEN AND PACKERS UNION OF AUSTRALIA, BARRY SPARKS, FRANK BELAN, DENNIS CLARK, ROBERT ROWE, LES. WILLETTS, MARK WITCHARD, RON PERKINS, JOHN HODDER, JOHN WILLIAMS and LES. BARAMNAH AND Respondents 16 AUGUST, 1984 KEELY J. REASONS FOR JUDGMENT R. & E.P. Eccleston Pty. Limited and Tristar Oil Pty. Limited have each sought interlocutory injunctions under s. 80 of the Trade Practices Act 1974, restraining the respondents "until the determination of the application or further order from engaging in conduct, in concert with any person, that hinders or prevents the supply of petroleum products including bulk fuel by Ampol Limited to the applicant where such conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the applicant". Mr. Moshinsky appeared for the Federated Storemen and Packers Union of Australia (the union) and there was no appearance for any of the other respondents. It was conceded by the applicants that Mr. Dennis Clark had not been served with the application. Affidavits of service have been filed, deposing that service of each application, endorsed with a notice of the date for the hearing of the claim for interlocutory relief, was effected upon each of the remaining respondents with the exception of Mr. Belan. As to the latter, an affidavit of service was filed yesterday but that fails to satisfy me that a copy of the application, endorsed, as required by O. 4 r. 9(2) of the Federal Court Rules, with a notice of the date for hearing of the claim for 3. interlocutory relief, was served upon Mr. Belan. The applicants did not seek an ex parte order against Mr. Clark; ow no consideration will be given to granting4ex parte order against Mr. Belan. As to each of the remaining respondents, service was effected less than five days before the date appointed for the present hearing and accordingly did not comply with O. 4 r. 12 of the Rules. Mr. Dowling, of Queen's Counsel, who appeared with Mr. P. Murdoch for the two applicants, sought an order abridging the time for service fixed by that rule. In all the circumstances, including the matters set out in the three affidavits filed in support of the applications for interlocutory injunctions, and the fact that counsel for the union did not oppose the application and did not apply for an adjournment of the hearing, it is appropriate that orders be made in both matters under 0. 3 Ir. 3 abridging the time for service and under O. 1 r. 8 dispensing with compliance with the requirements of 0. 4 r. 12 in respect of service upon all of the respondents other than Mr. Dennis Clark and Mr. Belan. Mr. Moshinsky, on behalf of the union, put a preliminary submission that the Court should stay the present applications pending the determination of an industrial dispute by the Australian Conciliation and Arbitration Commission. In support of that application he referred to the desirability of "preventing duplicity of proceedings" (wee judgment of Bowen C.J. in Hughes Motor Service Pty. Ltd. 4. v Wang Computers Pty. Ltd. (1975) 35 F.L.R. 346 at 354-5). However, on the affidavit material before the Court, it was clear that the proceedings scheduled for hearing in the Commission, which related to a claim for a federal award, would not in any sense duplicate the proceedings before this Court and the preliminary submission was rejected. It may be desirable to draw attention to the distinction drawn by the Full High Court in Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal (1968) 119 C.L.R. 16 between an industrial dispute on the one hand and bans imposed by a union in an attempt to force the granting of a claim. Taylor J. said (at p. 39) : "It is perhaps necessary to observe once again that it is not the industrial action taken to enforce a demand that constitutes an industrial dispute; an industrial dispute is constituted by the rejection of a demand relating to an industrial matter or matters made by one side upon the other eee (Reg. v Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 C.L.R. 614)." (see also the reasons for judgment of Kitto J. and Owen J. at pp. 35 and 44 respectively of that report). There was no cross-examination of any deponent on the contents of the affidavits filed in support of the two applications and no affidavit or other evidence was tendered by the union. As the present hearing is confined to applications for interlocutory injunctions, the Court has not formed any concluded view as to the evidence. Mr. Moshinsky 5. did not submit - and in my opinion could not have submitted on the evidence before the Court - that either applicant had failed to establish a prima facie case in the sense used in Beecham's case (1968) 118 C.L.R. 618 or "a serious question to be tried" (per Gibbs C.J. in The Australian Coarse Grain Pool Pty. Ltd. v The Barley Manufacturing Board of Queensland (1982) 57 A.L.J.R. 425). It then becomes necessary to consider whether the injury which each applicant would be likely to suffer, if the injunction sought were refused, outweighs any injury or inconvenience which each respondent would suffer if the injunction were granted. In opposing the applications for interlocutory injunctions, Mr. Moshinsky confined his submission to the issue of the "balance of convenience". He submitted that it was : "appropriate for this court to take into account other avenues for the resolution of the dispute betwen the parties ... We submit that if a situation exists where a respondent can persuade you that it genuinely wishes to facilitate the settlement of a dispute by conciliation and in all the circumstances it would be just to do so, that is a factor which ought to be taken into account against the granting of an injunction on an interlocutory basis." Mr. Moshinsky did not, and in my opinion could not, make an application under the provisions of s. S80AA of the Trade Practices Act which were inserted in the Act in 1980. However, he sought to gain some support for his submissions from the general tenor of the terms of s. 80AA. That section permits the Court to stay the operation of an injunction 6. where the Court ""... considers that to do so would be likely to facilitate the settlement of the dispute by conciliation and that in all the circumstances it would be just to do so oe", However, Mr. Moshinksy's submission cannot succeed because there is nothing in the evidentiary material to suggest that the refusal of injunctions would be likely to facilitate the settlement by conciliation of any relevant dispute. Nor is there anything in the evidence which tends to show, in my opinion, that in all the circumstances it would be just to refuse to grant interlocutory injunctions. The Court might well decide, in an appropriate case, that in all the circumstances it would be just to refuse interlocutory injunctions under s. 45D where an applicant was refusing, without reasonable cause, to meet the representatives of the union in order to discuss a relevant issue or where relevant conduct of an applicant was unconscionable, for example, conduct exposing members of the union to danger to life or to health. However, in the present proceedings there is no evidence suggesting that the conduct of either applicant is open to any criticism. As to the "balance of convenience", the union did not put any material as to any injury or inconvenience which it would suffer if the injunctions were granted. Mr. Moshinsky submitted ".. that if an injunction is granted then the legitimate fulfilment of a union's activities for the purpose of protecting the economic welfare of its members would also be affected ..". However, on the evidence I am satisfied that the injury which each applicant would be 7. likely to suffer, if the injunction sought were refused, outweighs any injury or inconvenience which each respondent would suffer if the injunction sought were granted. Accordingly, I am satisfied that, in respect of each respondent other than Mr. Clark and Mr. Belan, each applicant is entitled to the benefit of the interlocutory injunction sought pending the hearing and determination of the matters. Upon each applicant, by its counsel undertaking to the Court to pay to any party adversely affected by the interlocutory injunctions such compensation (if any) as the Court thinks just, 1n such manner as the Court directs, I will make the orders sought against those respondents. ee ee - eov.acs J cc: ' . sux pre ' J j Keely. en ne ee ern? Tee ee ee a